Delhi District Court
State vs . 1. Surender (Already Expired) on 10 February, 2016
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 67/13.
Unique Case ID No. 02405R1003432007.
State Vs. 1. Surender (already expired)
S/o Sh. Kanshi Ram,
R/o RZ-296/1, Durga Park,
Main Najafgarh Road,
New Delhi.
2. Satender Singh @ Sonu Dagar
S/o Sh. Rattan Singh,
R/o Village Arronda, Tehsil Sikandrabad,
Distt. Bulandshahar, U.P.
3. Sunil
S/o Sh. Kanshi Ram
R/o RZ-296/1, Durga Park,
New Delhi.
4. Devender
S/o Sh. Kanshi Ram
R/o RZ-296/1, Durga Park,
New Delhi.
5. Pradeep Sehrawat
S/o Sh. Surinder Singh,
R/o RZ-296/1, Durga Park,
Main Naseerpur Road,
New Delhi.
6. Mahabal Mishra
S/o Sh. Jainarayan,
R/o D-I/41, Vinodpuri,
Vijay Enclave,
New Delhi.
7. Hira Prashad Mishra
S/o Sh. Jainarayan,
SC No.67/13. (State vs. Surender etc.) Page 1 of 44
R/o C-3/189, Mahavir Enclave,
New Delhi.
8. Smt. Urmila Mishra
W/o Sh. Mahabal Mishra,
R/o D-I/41, Vinodpuri,
Vijay Enclave,
New Delhi.
9. Smt. Kiran
W/o Sh. Subhash Chaudhary,
R/o 190-A, Gali No.3, Vaishali,
Dabri,
New Delhi.
Date of Institution : 12.4.2007.
FIR No. 399 dated 08.11.2006.
U/s. 363 IPC.
P.S. Delhi Cantt.
Date of reserving judgment/Order : 08.2.2016.
Date of pronouncement : 10.2.2016.
JUDGMENT
1. The case of the prosecution, in brief, is that the accused Pradeep, with the help of accused Surender, Satender, Sunil and Devender had kidnapped the prosecutrix namely 'S' (real name withheld in order to conceal her identity) on 07.11.2006 after she had left her house alongwith her friend Rajni to go for tuition classes and thereafter she was kept confined firstly in a house at Bulandsahar and then in the house of accused Mahabal Mishra and Hira Mishra in Mahavir Enclave, New Delhi, where she was raped by accused Pradeep. Accused Urmila Mishra as well as Kiran Mishra had threatened and pressurized her to solemnize marriage with Pradeep.
SC No.67/13. (State vs. Surender etc.) Page 2 of 442. According to the prosecution, the prosecutrix had gone missing on 07.11.2006 after she alongwith her friend Rajni had left her house at about 3.50 p.m. for going to the tuition classes on her Scooty bearing registration no. DL-9SP-2838. Missing report was lodged by her father in the police station on 08.11.2006 wherein he mentioned that they had received a call in the evening of 07.11.2006 from Rajni saying that the prosecutrix met with an accident. They went to her residence in Sadar Bazar, Delhi Cantt. and she told them that the prosecutrix, after getting the brakes of her Scooty repaired, took the Scooty for test drive towards Sarvodaya Vidhalaya but did not return therefrom for a very long time. She also told them that when she went towards that side, she found the Scooty lying there and two boys told her that her friend had met with an accident and she has been taken to the hospital. The father of the prosecutrix mentioned in the missing report that it does not appear to them as a case of accident and he is sure that his daughter has been kidnapped by Pradeep Sehrawat s/o Sh. Surender Sehrawat.
3. FIR u/s.363 IPC was registered in the police station on the aforesaid missing report of the prosecutrix's father and the investigation was entrusted to ASI Purshottam. He made strenuous efforts to trace the prosecutrix as well as accused Pradeep but in vain. Further investigation of the case was assigned to Inspector Pratap Singh on 14.11.2006. An application from the prosecutrix was received in the police station on 15.11.2006 seeking recording of her statement u/s.164 Cr.PC. Inspector Pratap reached the court of the concerned Ld. M.M. alongwith the application where he SC No.67/13. (State vs. Surender etc.) Page 3 of 44 found the prosecutrix alongwith her lawyer. IO submitted an application to the Ld. M.M. seeking permission to make inquiries from the prosecutrix, to get her medical examination conducted and to lodge her in Naari Niketan. The prosecutrix was sent to Naari Niketan on 20.11.2006 pursuant to the directions of the Ld. M.M. Her statement u/s.161 Cr.PC was also recorded on the same day by SI Seema Singh wherein she mentioned that when she was returning on her Scooty from her tuition classes on 07.11.2006, Pradeep met her. He was on his motorcycle alongwith another boy and hit her Scooty with his motorcycle. Her Scooty fell down and she received bruises. He lured her to accompany him on the excuse of providing treatment to her and took her to the house of his maternal uncle in U.P. His uncle Sunil reached there during the night. She was then brought to Patiala House Court on 08.11.2006 and her signatures were obtained on an application. She stated that she was kept at an unknown place where Pradeep raped her. He had the support of his family members also. She stated that she was threatened that if she made any statement against them, her entire family would have to suffer dire consequences.
4. Thereafter, further investigation of the case was transferred to Anti Kidnapping Section, Crime Branch South West District on 16.11.2006 and was entrusted to SI Mahesh Kumar. He recorded a fresh detailed statement u/s.161 Cr.PC of the prosecutrix. He got the medical examination of the prosecutrix conducted and also recorded the statements of other witnesses. Statement u/s.164 Cr.PC of the prosecutrix was recorded on 29.1.2007 wherein she mentioned the entire incident in detail and also stated that she had been kept confined in the house of SC No.67/13. (State vs. Surender etc.) Page 4 of 44 Mahabal Mishra and Hira Mishra at Mahavir Enclave, New Delhi, for three to four days where Urmila Mishra and Kiran asked her to marry Pradeep or otherwise, they would get the marriage solemnized forcibly.
5. Further investigation of the case was transferred to SIT Crime Branch on 31.1.2007 and was entrusted to Inspector Ramesh Chander. He recorded the statement of the witnesses and started search of the accused. He arrested accused Pradeep on 15.2.2007 and recovered his motorcycle at his instance. Medical examination of accused Pradeep was got conducted. The investigation was then entrusted to SI Balihar Singh on 22.2.2007. He deposited the exhibits in FSL, Rohini, on 16.3.2007. He seized the date of birth record of the prosecutrix on 28.3.2007. He also seized her Scooty and got conducted its mechanical inspection. He prepared site plan of the spot of incident at the instance of the prosecutrix. He also prepared site plan of all the three places in Delhi where the prosecutrix was kept confined at her instance. Accused Surender, Sunil, Devender and Sonu could not be arrested as they were not traceable.
6. After completion of the investigation, the IO prepared the Charge Sheet and submitted the same to the concerned Ld. M.M.
7. Later on, accused Surender, Devender, Satender and Sunil also came to be arrested and supplementary Charge Sheet was filed against them.
SC No.67/13. (State vs. Surender etc.) Page 5 of 448. It may be noted here that the accused Surender expired on 29.10.2014 during the course of trial of this case. Accordingly, the proceedings against him stood abated vide order dated 12.1.2015 of this court.
9. As is evident that the prosecution had submitted Charge Sheets against only five accused namely Surender, Satender Singh, Sunil, Devender and Pradeep for the offences u/s. 363/366/368/377/342/323/506/34 IPC. After the arguments on the point of Charge were heard by the then Ld. A.S.J. upon committal of the case to the court of Sessions, an application was filed by the prosecutrix and her father praying for summoning of Kanshi ram, Mahabal Mishra, Urmila Mishra, Kiran Choudhary and Hira Mishra as additional accused in this case. The application was dismissed by the Ld. A.S.J. vide order dated 21.7.2010 and pursuant to the subsequent order dated 18.9.2010 passed in this regard, Charges u/s.363/366/368/506/34 IPC were framed against accused Satender on 29.9.2010. On the same day, Charges u/s.368/506/34 IPC were framed against accused Sunil, Devender and Surender. Charges u/s.323 IPC, u/s.363/34 IPC, u/s.366/34 IPC, u/s.368/34 IPC, u/s.376 IPC and u/s.506/34 IPC were framed against accused Pradeep on 25.3.2011. All the aforesaid accused had denied the charges and accordingly trial was started.
10. Meanwhile, the complainant assailed the order dated 21.7.2010 of the Ld. A.S.J. before the High Court in Crl.M.C. No. 2601/10 which was allowed by the High Court and the case was remanded back to the Sessions Court to examine as to the provisions under which accused Kanshi Ram, Mahabal Mishra, SC No.67/13. (State vs. Surender etc.) Page 6 of 44 Urmila Mishra, Kiran and Hira Mishra can be summoned. This court, vide order dated 04.2.2013, held that there is no material on record to summon accused Kanshi Ram whereas there is sufficient material on record to summon accused Mahabal Mishra, Hira Mishra, Urmila Mishra and Kiran Mishra for having committed the offences punishable u/s.368/34 IPC as well as u/s.506/34 IPC. Accordingly, they were summoned. They challenged the summoning order by filing appropriate petitions in the High Court which came to be dismissed. However, they did not stop there and approached the Supreme Court by way of Special Leave Petitions challenging their summoning by this court. However, the Supreme Court also did not agree to their contentions and upheld the summoning order. Accordingly, they had to appear before this court and Charges u/s.368/34 IPC were framed against these four accused Mahabal Mishra, Hira Mishra, Urmila Mishra and Kiran on 28.8.2015. Further Charge u/s.506 IPC was framed against accused Urmila Mishra and Kiran on the same day. All these four accused also denied the charges and hence trial was started afresh from 07.9.2015 onwards.
11. It may be noted here that by the time, the Charges were framed against accused Mahabal Mishra, Hira Mishra, Urmila Mishra and Kiran, six witnesses had already been examined. However, their Counsels made a statement on 11.9.2015 stating that PW1, PW2, PW3, PW4 & PW6 may not be summoned again as they do not want to cross examine these witnesses on behalf of the aforesaid four accused. PW5 had already been partly examined and his further deposition was recorded on 17.10.2015 and on 23.10.2015.
SC No.67/13. (State vs. Surender etc.) Page 7 of 4412. The prosecution has examined following 21 witnesses to prove the Charges against the accused.
(1) PW1 - Dr. Anu Anand. According to her deposition, Mrs. Saroj Devi w/o Sh. Satish Kumar had given birth to a girl child in Cantonment General Hospital, Delhi Cantt., on 01.3.1990 and she had provided this information to the IO vide her letter Ex.PW1/A. She also proved the relevant page of the birth and death register maintained in the hospital as Ex.PW1/B. (2) PW2 - WHC Mamta. She was posted as Duty Officer in P.S. Delhi Cantt. on 08.11.2006 and had registered the FIR in this case on receipt of rukka from the SHO. She proved the copy of FIR as Ex.PW2/A and her endorsement on the rukka as Ex.PW2/B. (3) PW3 - Sh. Rajesh Kumar Singh, the then Ld. M.M., who had recorded the statement u/s.164 Cr.PC of the prosecutrix on 29.1.2007. He proved the said statement as Ex.PW3/A and his certificate appended to the same as Ex.PW3/B. (4) PW4 - Dr. Binay Kumar. He was posted as Casualty Medical Officer in Sanjay Gandhi Memorial Hospital, Mangolpuri, on 15.2.2007 and had conducted medical examination of accused Pradeep on that day. He has proved the MLC as Ex.PW4/A. (5) PW5 - Sh. Satish Kumar, father of the prosecutrix. His deposition would be discussed in SC No.67/13. (State vs. Surender etc.) Page 8 of 44 detail in later part of the judgment.
(6) PW6 - Sh. Satish Kumar, the uncle of the prosecutrix. He deposed that the prosecutrix had been kidnapped on 07.11.2006 and he alongwith his younger brother Satish Kumar went to search for her. They found her Scooty lying abandoned at the gate of Sarvodya Kanya Vidhalaya, Delhi Cantt. He further stated Satish Kumar made a call to the police and police officials reached the spot. They seized the Scooty in her presence vide seizure memo Ex.PW6/A and took the Scooty alongwith them. He later on got the Scooty released on Superdari from the court. (7) PW7 - the prosecutrix. Her deposition would be dealt with in detail in later part of the judgment. (8) PW8 - Dr. Saritha Sham Sunder. She was posted as Sr. Specialist (Gynaecology) in Safdarjung Hospital, New Delhi, and proved the MLC of the prosecutrix as Ex.PW8/A, which had been prepared by Dr. Anil Kumar.
(9) PW9 - ASI/Tech. Devender Kumar. He had conducted technical inspection of Bajaj Scooty bearing registration no.DL-9SP-2838 in P.S. Delhi Cantt. on 28.3.2007 at the request of IO SI Balihar Singh. He proved his inspection report as Ex.PW9/A. (10)PW10 - Sh. Balbir Singh. He deposed that he is a mechanic and has a Scooter repair shop at Sadar Bazar, Delhi Cantt., in front of Shri Sanatan Dharam Mandir, New Delhi. According to him, two girls brought a Scooty to his shop for repair on SC No.67/13. (State vs. Surender etc.) Page 9 of 44 07.11.2006 at about 4 p.m. or 4.30 p.m. He found that the brake wire of the Scooty had got cut and did necessary repair. He inserted a fresh brake wire and then one of those girls took the Scooty for try while the another girl remained at the shop. He stated that when the girl who taken the Scooty for try did not return to the shop for about 10 to 15 minutes, the other girl went to look for her and returned after about 10 to 15 minutes saying that the Scooty is lying parked near Sarvodaya Kanya Vidhalaya and then left the shop.
(11)PW11 - SI Purshottam Singh. He was posted as SI in P.S. Delhi Cantt. in November, 2006 and the FIR registered in this case was entrusted to him for suitable action. He deposed that since the complainant i.e. father of the missing girl had laid suspicion on a person named Pradeep Sehrawat, he accompanied complainant to the house of Pradeep Sehrawat in Durga Park, Nasirpur, Delhi, where he met Pradeep's uncle. Pradeep was not present there. He was told that Pradeep has not returned home since the previous day i.e. 07.11.2006. He had sent WT messages all over India and made strenuous efforts to trace the missing girl as well as Pradeep Sehrawat but could not find them.
(12)PW12 - Const. Satender. He had remained in the investigation of this case alongwith IO SI Balihar on 28.3.2007.
(13)PW13 - Inspector Seema Singh. She was posted SC No.67/13. (State vs. Surender etc.) Page 10 of 44 as SI in P.S. Delhi Cantt. and had remained the investigating officer of this case from 20.11.2006 to 22.11.2006. She had brought the prosecutrix from Naari Niketan to Patiala House Court on 20.11.2006 for recording of her statement u/s.164 Cr.PC. When she produced the prosecutrix before the concerned Ld. M.M., he asked her to record the prosecutrix's statement u/s.161 Cr.PC which she did. Thereafter, she again produced the prosecutrix before the Ld. M.M., who posted the matter to 26.11.2006 for recording of her statement u/s.164 Cr.PC.
Thereafter, she again dropped the prosecutrix at Naari Niketan.
(14)PW14 - Const. Pawan. He was posted as Duty Constable in Sanjay Gandhi Memorial Hospital, Mangolpuri, on 15.2.2007. According to him, Inspector Ramesh Kumar had brought accused Pradeep to hospital on that day and Pradeep's blood sample was obtained by the doctor, which he handed over in sealed condition to Inspector Ramesh Kumar.
(15)PW15 - SI Rajbir Singh. He was posted as ASI in Anti Kidnapping Section, Crime Branch, Delhi, on 29.1.2007. Being the investigating officer of this case on that day, he produced the prosecutrix before Sh. Rajesh Kumar, Ld. M.M., who recorded her statement u/s.164 Cr.PC. He did not conduct any other proceedings in this case.
(16)PW16 - ACP Ramesh Chander. He was posted as SC No.67/13. (State vs. Surender etc.) Page 11 of 44 Inspector in SIT Section, Crime Branch, New Delhi, in February, 2007. Investigation of this case remained with him during that month. He had recorded the statements of one witness named Satya Prakash and another witness whose name he did not recollect. He had arrested accused Pradeep in their office on 15.2.2007 pursuant to his surrender. According to him, accused Pradeep had pointed out flat no.79 in Sector-18B, Dwarka, where he had kept the prosecutrix confined. He proved the pointing out memo as Ex.PW16/D. He also seized the blue coloured CBZ motorcycle bearing registration no.DL-9SL-0157, upon which Pradeep had reached their office, vide memo Ex.PW16/E. He had also seized the clothes of accused Pradeep, which he was wearing on the date of incident, vide memo Ex.PW16/F. (17)PW17 - Inspector Mahesh Pandey. He was posted as SI in Anti Kidnapping Section, Crime Branch, New Delhi, on 23.11.2006 Upon being entrusted with the investigation of this case on that day, he perused the file and found that the date for recording of the statement of the prosecutrix u/s.164 Cr.PC was fixed as 24.11.2006. He deposed that the prosecutrix did not turn up in the court on that day and hence the next date was fixed for the said purpose by the Ld. M.M. as 03.12.2006 but the prosecutrix did not turn up in the court on the said date also. He contacted the parents of the SC No.67/13. (State vs. Surender etc.) Page 12 of 44 prosecutrix on 10.12.2006 and 11.12.2006 to find out her whereabouts but they did not tell him anything about her whereabouts. He deposed that he again contacted the prosecutrix's parents on 19.12.2006 who told him that they will produce her in Safdarjung Hospital on 20.12.2006. Accordingly, he met the prosecutrix and her father in Safdarjung Hospital on 20.12.2006 and got her medical examination conducted. He seized the sealed exhibits given to him by the doctor as Ex.PW17/A. He also recorded the statement of the prosecutrix and her father u/s.161 Cr.PC which he identified as Mark-X and Mark-Y from the record. He again submitted an application in the court on 21.12.2006 for recording of the statement of the prosecutrix u/s. 164 Cr.PC and the date for the said purpose was given as 23.12.2006 but the prosecutrix did not turn up the court on that day also.
(18)PW18 Sh. Kuldeep Singh. He and his wife Gurmeet Kaur are the joint owners/ allottees of flat no.79, DDA Flats, Sector-18B, Dwarka, New Delhi. He deposed that he had let out the said flat to one Naresh Kumar in the year 2006 at the monthly rent of Rs.4,500/-.
(19)PW19 Sh. Naresh Kumar. He corroborated the version of PW18 that he had taken on rent the flat no.79, Sector-18B, Dwarka, from him in October, 2006. He, however, did not identify any of the accused except Mahabal Mishra. According to him, SC No.67/13. (State vs. Surender etc.) Page 13 of 44 he knew Mahabal Mishra being the M.P. of their area. He was declared hostile at the request of Ld. APP and in the cross examination conducted by Ld. APP, he denied that accused Devender Sehrawat is his friend and that he had given the keys of said flat to Pradeep, the nephew of accused Devender, on 08.11.2006.
(20)PW20 - Ms. Rajni. She was the friend of the prosecutrix in the year 2006 and both used to go to the tuition classes together on later's Scooty. She did not recollect the date, month and year of the incident and stated that it had happened atleast 5 to 6 years ago. She deposed that on the date of incident, she alongwith the prosecutrix left for tuition classes as usual at 4 p.m. on the later's silver coloured Scooty. She did not recollect the model or registration number of the Scooty. She further stated that when they reached near Indian Oil Petrol Pump, Palam More, the Scooty broke down and the prosecutrix got the Scooty repaired from a mechanic shop in Sadar. After repairing the Scooty, the mechanic asked the prosecutrix to have a try on it and accordingly, the prosecutrix started the Scooty and drove it towards Sarvodaya School. She deposed that she waited at the mechanic shop but the prosecutrix did not return for about half an hour and she went to look for her. When she traversed some distance from mechanic shop, two boys met her and told her that the Scooty has met with an accident SC No.67/13. (State vs. Surender etc.) Page 14 of 44 and is lying on the road and the girl driving it has been taken in a vehicle. She returned to the mechanic shop, from where she made a call to the parents of the prosecutrix and apprised them about what had happened. Thereafter, her brother came to the mechanic shop and took her home.
(21)PW21 - IO SI Balihar Singh. He described the proceedings conducted by him in the investigation of this case i.e. sending of exhibits to FSL on 16.3.2007, seizure of the Scooty bearing registration no.DL-9SP-2838 from the house of the prosecutrix on 28.3.2007 vide memo Ex.PW6/A, getting the mechanical inspection of the Scooty conducted by ASI Devender, obtaining the record regarding birth of the prosecutrix from Cantonment General Hospital on the same day i.e. 28.3.2007, preparation of pointing out memos of the places where the prosecutrix had been kept confined in Vijay Enclave, Mahavir Enclave and Sector-18B, Dwarka, at her instance. He had also arrested accused Sunil, accused Surender and accused Satender on 02.5.2007, 04.6.2007 and 14.6.2007 respectively. He had also made inquiries from Mahabal Mishra, Hira Mishra, Urmila Mishra and Kiran as well as from the domestic help in house of Hira Mishra and the employees (15 in total) in the office of Mahabal Mishra.
13. Statements of all the accused u/s.313 Cr.PC were SC No.67/13. (State vs. Surender etc.) Page 15 of 44 recorded on 02.1.2006 wherein all of them denied the prosecution case and claimed false implication. Accused Mahabal Mishra further stated that he has been implicated falsely in this case at the instance of one Inder Singh Solanki, with whom he had political rivalry. He stated that he succeeded in getting the party ticket for assembly elections for Nasirpur constituency in the year 1998 and 2003 whereas Inder Singh Solanki did not get the ticket and hence was envious of him, on account of which Mr. Solanki hatched a plan to implicate him in this false case in order to put an end to his political career.
14. Accused Mahabal Mishra proved the record from electoral registration office to show that he was a candidate for the assembly elections in Nasirpur assembly constituency in the years 1993, 1998, 2003 and 2008. The record was produced by DW5. He also proved the record pertaining to civil writ petition no. 2124/06 and the contempt case (civil) no.1156/2006 to show that these had been filed against him at the instance of Inder Singh Solanki. Further records from the court of Sh. Anil Kumar, Ld. A.S.J., had been summoned regarding FIR no.101/2001 u/s. 147/149/308/323/427/506 IPC, P.S. Dabri, and record from the court of Sh. Sudhir Kumar Sirohi, Ld. M.M., pertaining to case FIR no.100/01 P.S. Dabri. The accused also examined an employee of Sikhsha Bharti Public School, Sector-7, Dwarka, as DW6, proved the record regarding admission of the prosecutrix in that school as Ex.DW6/A, according to which she had taken admission in that school on 11.7.2006 in Class-XIth and her date of birth was mentioned by her father as 01.3.1990. He also proved the letter dated 22.9.2006 as Ex.DW6/D vide which the school had informed SC No.67/13. (State vs. Surender etc.) Page 16 of 44 father of the prosecutrix that her name has been struck off from the rolls of the school with effect from November, 2006, on account of non submission of transfer certificate from previous school. DW7 has proved the record of the prosecutrix from National Institute of Open Schooling. According to him, she had appeared in Class-Xth examination through their institute in the month of October, 2005. He proved the marksheet of the prosecutrix as Ex.DW7/A showing her date of birth as 01.3.1989 and the fact that she had failed in the said examination.
15. I have heard Ld. APP for State, Ld. Counsels appearing for the accused and have perused the entire oral as well as documentary evidence on record. Ld. Counsel for the complainant, with the permission of this court, filed written submissions which too have been considered.
16. Ld. APP as well as the Ld. Defence Counsels took me painstakingly through the entire material on record to advance their respective cases. The Ld. APP argued that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt whereas Ld. Defence Counsels submitted that the evidence adduced by the prosecution is neither credible nor trustworthy and hence the accused cannot be held guilty. They further contended that the records proved by them in their defence through defence witnesses clearly establish the innocence of the accused as well as their false implication in this case on account of hostilities with one Inder Singh Solanki. According to them, Inder Singh Solanki is the brain behind this false case as he wanted to kill two birds with one stone by involving the family of SC No.67/13. (State vs. Surender etc.) Page 17 of 44 Pradeep and Mishra family together in this false case and succeeded in doing so to a large extent.
17. As already noted herein-above, the police machinery in this case, was set into motion by lodging of missing report regarding the prosecutrix by her father on 08.11.2006. The report is Ex.PW5/A. He has stated in this missing report itself that though it has been conveyed to them that the prosecutrix met with an accident but it does not appear to them to be an accident. He has further mentioned that he is sure that his daughter has been kidnapped by accused Pradeep Sehrawat. He has further stated that they had gone to the house of Pradeep Sehrawat and found that he too has disappeared.
18. It is indicated from the aforesaid contents of the missing report Ex.PW5/A that the family of the prosecutrix suspected that there is some kind of affair between her and accused Pradeep. It is for this reason that her father was certain that she has been kidnapped by none other than accused Pradeep and they had also visited house of accused Pradeep in this regard. PW5 has deposed that he suspected that his daughter may have been kidnapped by Pradeep as Pradeep had been teasing his daughter for the last several days and they had asked him to refrain from doing so. However, the prosecutrix (PW7) has not mentioned anything about the same in her testimony. She appears to be knowing accused Pradeep very well as she has taken his name in each of her statements recording during the course of investigation but she has nowhere explained how did she know him. She has stated in the cross examination that she knows SC No.67/13. (State vs. Surender etc.) Page 18 of 44 accused Pradeep since the time they were studying together in Xth class in Rahul Model Public School but could not tell the year. Hence the statement of the prosecutrix's father PW5 that accused Pradeep has been teasing the prosecutrix cannot be believed and the only inference which can be drawn from the contents of Ex.PW5/A and the conduct of PW5 in straightway visiting the house of accused Pradeep after getting information about disappearance of his daughter, is that the prosecutrix was having a close affair with accused Pradeep which was to the knowledge of her parents.
19. Intriguingly neither PW5 nor any of his family members visited the house of Rajni, who lived in their neighbourhood, to ascertain from her as to what actually had happened with prosecutrix. It is ironical that PW5, without making inquiries from Rajni, straightaway came to the conclusion that his daughter has been kidnapped by Pradeep. They don't appear to have made any effort to search for her. Missing report was also lodged on the next day in the afternoon. The conduct of PW5 and his family members does not appear to be natural.
20. The case of the prosecution that the prosecutrix had been kidnapped on 07.11.2006 when she alongwith her friend Rajni on her way to the tuition classes at about 3.50 p.m. or 4.00 p.m. It has not been mentioned in the statement of any of the witnesses recorded during the course of investigation as to in which class was she studying in the year 2006. She has not mentioned the class even in her statement u/s.164 Cr.PC Ex.PW3/A. PW5 has stated in his examination in chief that the prosecutrix was studying in class XII in Siksha Bharti Public School, SC No.67/13. (State vs. Surender etc.) Page 19 of 44 Dwarka, in the year 2006. According to him, she used to leave for tuition classes at about 3.30 or 3.45 p.m. and used to return at about 6.30 p.m. However, in the cross examination, he clarified that she was studying in XIth class in the year 2006 and not in XIIth class. He further deposed that she had cleared Xth class examination through Open School from Allahabad. PW20 Smt. Rajni has deposed that she was studying in IXth class whereas the prosecutrix was studying in XIth class in the year 2006 and they used to go to tuition classes together on the Scooty of the prosecutrix. The prosecutrix (PW7) has deposed that she was studying in XIth class in the month of November, 2006. She deposed in her cross examination that she took admission in Siksha Bharti Public School, Dwarka, in XIth class in the year 2006 i.e. July, 2006. She admitted that her admission was provisional as she had not submitted her Xth class certificate at the time of taking admission in that school. She deposed that she passed Xth class examination in the year 2005 from Rahul Model Public School from Allahabad Board. She denied that her name was struck off the rolls of Siksha Bharti Public School on 27.9.2006 on account of non submission of Xth class certificate. At another place in the cross examination, she admitted that she appeared in her Xth class examination in October, 2005, from Open School. She did not recollect whether she had failed in Science and Maths subjects in the said examination.
21. The record of the prosecutrix from Siksha Bharti Public School, Dwarka, was produced by DW6 as Ex.DW6/A, Ex.DW6/B and Ex.DW6/C. The record shows that she had taken admission in the said school on 11.7.2006 in Class-XIth vide admission no.5074 SC No.67/13. (State vs. Surender etc.) Page 20 of 44 but her name was struck off the rolls of the school with effect from November, 2006, on account of non submission of transfer certificate from previous school. A letter dated 27.9.2006 Ex.DW6/D was sent in this regard to her father by the school. The record of the prosecutrix from National Institute of Open Schooling, Noida, was produced by DW7, according to which, the prosecutrix had appeared in XIth class examination through the said institute in the month of October, 2005. He proved the marksheet of the prosecutrix as Ex.DW7/A which shows that she had failed in the said examination. It is thus manifest that the prosecutrix had not passed her Xth class examination at all and she as well as her father have deposed falsely in this regard. Though she had cleverly taken admission in Siksha Bharti Public School, Dwarka, in Class-XIth in July, 2006, yet her name had to be struck off from the rolls of that school on account of non submission of Xth class certificate. Hence there is nothing on record to show that the prosecutrix was studying in Class-XIth in the year 2006. To the contrary, the evidence on record demonstrates that she had appeared in Xth class examination in October, 2005, through National Institute of Open Schooling, Noida, but failed to clear the same. Therefore, there was no cause or occasion for the prosecutrix to enroll for XIth class tuition classes in the month of November, 2006 as she was yet to pass Xth class examination. Further, she has failed to state the name of the tutor or his address in Delhi Cantt. She also could not tell the floor, on which the tutor was imparting tuition to her. It is probably for this reason that the investigating officer could not contact that tutor to record his statement. She did not even know whether that tutor was working as a teacher in a school or as a bank employee SC No.67/13. (State vs. Surender etc.) Page 21 of 44 or anything else. She could not tell the date and month since when she had started going to the tuition classes. Hence, I do not find any credible evidence on record to suggest that the prosecutrix was, in fact, taking tuition classes in the month of November, 2006, and had to go to her tuition classes on the date of incident i.e. 07.11.2006.
22. The first occasion for the prosecutrix to describe her ordeal was on 20.11.2006 when her statement u/s.161 Cr.PC was recorded by PW13 in Patiala House Court where she had been brought from Naari Niketan. In this statement, which was recorded just 13 days after her kidnap, she has stated that on 07.11.2006 when she was returning home on her Scooty from tuition classes, accused Pradeep met her near Sadar and hit her Scooty with his motorcycle, as a result of which, her Scooty fell down and she suffered bruises. Thereafter, Pradeep took her alongwith him on the pretext of providing treatment to her and thus kidnapped her.
23. Her second statement u/s.161 Cr.PC (Mark-X) was recorded by PW17 on 20.12.2006 in Safdarjung Hospital in presence of her father. In this statement, she has stated that after she alongwith a girl residing in her neighbourhood named Rajni left on a Scooty on 07.11.2006 at 4.00 - 4.15 p.m. for tuition classes, the Scooty broke down on the way near Sadar Road turn. It did not start and hence they both pushed it upto the mechanic shop who repaired it. Thereafter, she took it for a test drive towards Sarvodya Vidhalaya, where accused Pradeep hit her Scooty with his motorcycle and then kidnapped her on the pretext that he would take her to a hospital for treatment.
SC No.67/13. (State vs. Surender etc.) Page 22 of 4424. Her statement u/s.164 Cr.PC Ex.PW3/A was recorded on 29.1.2007 in which she reiterated whatever she has mentioned in this regard in her aforenoted statement u/s.161 Cr.PC dated 20.12.2006.
25. In her deposition before this court, she has described the incident in the following words :
"On 07.11.2006 I left home at about 4 p.m for the tuition classes on my scooty bearing registration No. DL 9SP 2838. My friend named Rajni who resided in our neighbourhood was also taking tution classes along with me. I had taken her also on my scooty. I was driving the scooty and she was on its back seat. However, I felt that the brakes of the scooty are not functioning properly. I took the Scooty to a mechanic near the gurudwara in Delhi Cantt.. He repaired the brakes and asked me to have a try. Accordingly, I started a scooty alone and drove towards Sarvodaya school to check whether the brakes are functioning properly. Rajni waited at the mechanic shop. While I was driving the scooty on the said road towards Sarvodaya school, accused Pradeep (present in the court today and correctly identified) came from the opposite side on a blue colour CBZ motorcycle and collided with my scooty. One another boy riding on black colour motorcycle also reached the spot. As a result of collision, I fell down from the scooty. I sustained injuries on my arms and back. Pradeep told me that he would take me to the hospital for treatment. Hence, I rode his motorcycle as pillion. He drove towards a hospital. However, he did not stop at the hospital and drove straight in front of the same. I asked him why he did not stop at the hospital. He continued driving the motorcycle at a very fast speed in a zig-zag manner. I again requested him to stop the motorcycle and to take me to a hospital and also told him that my friend Rajni is waiting for me at the SC No.67/13. (State vs. Surender etc.) Page 23 of 44 mechanic shop. The friend of accused Pradeep was also driving his motorcycle along with us. When I insisted upon Pradeep to stop the motorcycle, he threatened me to keep quiet. Meanwhile, his friend, who was driving the other motorcycle took out a pistol and showed it to me. I became frightened and kept quiet."
26. In the cross examination, she deposed in this regard that when she was going to tuition classes on his Scooty, the engine of the Scooty had stopped working near the traffic light between Palam flyover and Delhi Cantt. There was enough petrol in it. She had to push the Scooty for about 1.5 kms. upto a mechanic shop where she got it repaired. The mechanic had demanded a sum of Rs.2,000/- to Rs.2,500/- as repair charges.
27. A perusal of the aforesaid statement of the prosecutrix would clearly reveal that she is herself not certain in her mind as to whether she was going for tuition classes or was returning therefrom when she had been kidnapped or what, in fact, had happened to her Scooty, for which it was taken to the mechanic shop. In her very first statement u/s.161 Cr.PC recorded on 20.11.2006, she states that she was returning home from her tuition classes on her Scooty when she had been kidnapped, whereas in her later statement including the deposition before this court, she has stated that she alongwith her friend Rajni was going for tuition classes. In statement dated 20.11.2006, she has nowhere mentioned that the Scooty needed certain repairs and had to be taken to some mechanic shop. In the statement dated 20.12.2006 Mark-X, she has stated that the Scooty broke down near Sadar Road turn and it did not start, for which reason she and SC No.67/13. (State vs. Surender etc.) Page 24 of 44 her friend Rajni had to push it upto the mechanic shop. She has mentioned the same in her statement u/s.164 Cr.PC Ex.PW3/A. However, in her testimony before this court, she has deposed that she felt that the brakes of the Scooty are not functioning properly and therefore took the same to a mechanic who repaired it.
28. It is very aptly said that the best thing about the truth is that the person telling it has not to remember what he said. The fact that the prosecutrix has given different versions in her statement recorded during the course of investigation and in her testimony before this court regarding what kind of repairs were needed in the Scooty and whether she was going to tuition classes or returning from tuition classes when she was kidnapped indicates that her version is far from being true or trustworthy. It may be noted here that the statements u/s.161 Cr.PC of the prosecutrix dated 20.11.2006 and 20.12.2006 had been recorded within one and a half months of the date of incident and therefore atleast these two statements should have been consistent with each other and not contradictory or inconsistent to each other.
29. What happened to the Scooty, after the prosecutrix had been kidnapped, is not clear from the evidence on record. Obviously the prosecutrix cannot be imputed with any such knowledge. According to PW20, she did not reach the spot wherefrom the prosecutrix had been kidnapped as two boys met her on the way who told her that the Scooty has met with an accident and is lying on the road and the girl driving it has been taken in a vehicle. PW5 has deposed that he alongwith his elder brother reached Sarvodya Vidhalaya, Delhi Cantt. to search for the SC No.67/13. (State vs. Surender etc.) Page 25 of 44 prosecutrix and found her Scooty lying on the ground in front of Sarvodya Vidhalaya. In the cross examination, he stated that they had reached that spot at about 10 p.m. on 07.11.2006. He did not recollect whether he had informed the police that they have found the Scooty of the prosecutrix. He did not bring the Scooty home but left it at the spot. He further stated that the Scooty was lifted by the police from the spot on 08.11.2006 but not in his presence as his brother Virender Kumar was with the police officials at that time. He also stated that he saw Scooty for the first time thereafter when it was got released on Superdari after about 15 or 20 days of the incident and since then it is in his custody. He stated that it was never seized by the police again.
30. PW6, the brother of PW5, has deposed that when he alongwith his younger brother (PW5) went on 07.11.2006 in search of the prosecutrix, they found her Scooty lying abandoned in front of the gate of the Sarvodya Vidhalaya, Delhi Cantt. According to him, PW5 made a call to the police and police officials reached the spot who seized the Scooty in his presence vide seizure memo Ex.PW6/A and took the Scooty alongwith them. He deposed that later on, he got the Scooty released on Superdari from the court. In the cross examination, he deposed that the spot where the Scooty is found is at a distance of about 3 kms. from their house and after seeing the Scooty there, he left his brother at the spot and himself returning home. Thereafter, he did not ask his brother what he has done to that Scooty. He admitted that the Scooty is not registered in his name. He had not talked to his brother regarding the prosecutrix after 07.11.2006. He did not recollect exactly who had got the said Scooty released on Superdari.
SC No.67/13. (State vs. Surender etc.) Page 26 of 4431. The prosecution case is otherwise. According to the prosecution, the Scooty was seized by PW21 from the residence of PW5 on 28.3.2007. This has been confirmed by PW21 in his deposition stating that when he reached the house of the complainant in Mehram Nagar on 28.3.2007, he found a Scooty bearing registration no.DL-9SP-2838 parked in front of the house and seized it at the pointing out of Virender Sharma (PW6) vide seizure memo Ex.PW6/A. He also deposed that it was the same Scooty, which was being driven by the prosecutrix on the date of incident.
32. Manifestly, all the aforesaid three witnesses i.e. PW5, PW6 & PW21 have given different versions regarding the date and place when the Scooty was seized as also the person in whose presence it was seized. PW6 says that the Scooty was seized by the police from the spot where it was lying abandoned on 07.11.2006 itself, whereas PW5 says that the Scooty was lifted by the police from the said spot on 08.11.2006. PW21, the IO, states that he seized the said Scooty from the residence of PW5 on 28.3.2007. The version of PW21 appears to be correct for the reason that the seizure memo Ex.PW6/A bears the date as 28.3.2007. It may be noted here that the investigation of this case had been entrusted to PW21 on 22.2.2007. The fact that the Scooty was seized by this witness PW21 demonstrates that it had not been seized before 22.2.2007 by any of the previous investigating officer. Therefore, the statement of PW5 & PW6 to the effect that the Scooty had been seized from the spot on 07.11.2006 or on 08.11.2006 is patently false. It appears that the SC No.67/13. (State vs. Surender etc.) Page 27 of 44 Scooty had been deliberately concealed and withheld from the police till 28.3.2007 for some ulterior reasons. Had it been available for the inspection and seizure, it would have certainly been seized by the previous investigating officer. PW17, who was the investigating officer of this case from 23.11.2006 to 23.12.2006, has deposed in his cross examination that he had visited the house of prosecutrix but did not see any Scooty there.
33. Therefore, it becomes doubtful as to whether the prosecutrix was, in fact, driving the Scooty on 07.11.2006 when she is stated to have been kidnapped and it also makes the case of the prosecution suspect in this regard. It also appears to be doubtful that PW5 & PW6 had seen the Scooty lying abandoned near the gate of Sarvodya Vidhalaya as none of them seems to have informed the police about the same on that day or on the subsequent day. Had they done so, even at the time of lodging of missing report on 08.11.2006, the IO would have visited the spot, prepared its site plan and seized the Scooty from there. The falsehood of the statement of PW5 & PW6 in this regard is also evident from the contents of the missing report Ex.PW5/A, wherein nothing about the Scooty has been mentioned.
34. The make of the said Scooty has not been stated by any of the witnesses either in their statement u/s.161 Cr.PC or in their deposition before this court. However, PW10, the mechanic, who is stated to have repaired the said Scooty at the instance of the prosecutrix on 07.11.2006, has mentioned in his cross examination that it was an Activa Scooty. Be it noted here that 'Activa Scooty' is the product of Honda company. Interestingly, the SC No.67/13. (State vs. Surender etc.) Page 28 of 44 Scooty , which was shown to PW21 and seized by him vide seizure memo Ex.PW6/A is the Scooty of make Bajaj Spirit and not the Activa Scooty. Hence it cannot be said that the prosecutrix was driving the Scooty Ex.P1 which had been seized by PW21.
35. The prosecutrix has deposed that after being kidnapped on 07.11.2006 by accused Pradeep, she was taken to a house in village Bulandsahar, U.P. According to her, a friend of accused Pradeep was driving on his motorcycle alongwith them who had also shown pistol to her in order to frighten her. Accused Sonu alongwith 5 to 6 more persons met them after crossing Delhi Border, who were on 3 to 4 motorcycles and drove alongwith them from that spot. She has deposed that at about 2 a.m. or 3 a.m. during the night accused Devender, accused Sunil and accused Surender came to that house in a white coloured Sedan car. She was then brought to Delhi on the next day i.e. 08.11.2006 where she was taken to a court and made to sit in a large chamber where 3 to 4 lawyers were present. The accused had threatened her on the way to write whatever they would tell her to write or otherwise they would kill her brother. She stated that they made her to write on a paper that she had accompanied accused Pradeep on her own will and has been with him on her own wish. She proved the said writing as Ex.PW7/A (wrongly mentioned as Ex.PW6/A in her testimony which has been clarified in the order dated 29.1.2006). She stated that the said writing and its copies were then dispatched to various authorities in envelopes.
36. It was vehemently contended by Ld. APP that the aforesaid writing Ex.PW7/A of the prosecutrix is not voluntary and SC No.67/13. (State vs. Surender etc.) Page 29 of 44 therefore, the same should be discarded, whereas the Ld. Defence Counsels argued that the events which unfolded after 08.11.2006 clearly indicate that the contents of the said writing of the prosecutrix are true and she had noted the same voluntarily. Be it noted here that the prosecutrix has mentioned in the said document/writing Ex.PW7/A that she left her parental house on her own will as they wanted to marry her against her wishes. She wanted to study further and if she remained in her parental house, they would have solemnized her marriage against her wishes or would have caused bodily harm to her or would have killed her. She has further mentioned that nobody has instigated her and she has left her house willingly and not under the pressure of anybody. She has stated that she does not want to stay with her parents as they may cause physical harm to her and may also kill her.
37. In order to ascertain as to whether the prosecutrix had written the document Ex.PW7/A voluntarily or upon the threat and pressure of accused Pradeep as well as his relatives, it is necessary to note and analyse the events which took place thereafter and the legal proceedings which were conducted thereafter.
38. The prosecutrix has deposed that she was forced to write Ex.PW7/A by the accused on 08.11.2006 in a chamber in Patiala House Court and its copies were then posted to various authorities in envelopes. The case of the prosecution is that an envelope containing the said writing in original was received in P.S. Delhi Cantt. On 15.11.2006. At that time, the investigating officer of this case was Inspector Pratap Singh. He has not been SC No.67/13. (State vs. Surender etc.) Page 30 of 44 examined before this court by the prosecution. It appears from the record that an application dated 08.11.2006 was filed before the Ld. M.M. on behalf of the prosecutrix seeking recording of her statement u/s.164 Cr.PC which was taken up on 13.11.2006. Since the IO was not present on that day, the application was adjourned to the next day i.e. 14.11.2006. The order sheet of the Ld. M.M. dated 14.11.2006 shows that the IO as well as the Counsel for the applicant/prosecutrix were present in the court and the application was adjourned to 15.11.2006. The order sheet dated 15.11.2006 of the Ld. M.M. also records the presence of applicant/prosecutrix and her Counsel Sh. M.C. Sharma, Advocate. The Ld. M.M. dismissed the application on that day while observing that it has neither been moved by the investigating officer nor has been sponsored by the State. The applicant/prosecutrix was sent to Naari Niketan till 20.11.2006.
39. The order sheet dated 20.11.2006 of the Ld. M.M. shows that the prosecutrix was produced before him on that day by SI Seema Singh. The prosecutrix's Counsel Sh. M.C. Sharma, advocate, was also present in the court. It appears that the father of the prosecutrix had moved an application before the same Ld. M.M. on 16.11.2006 seeking custody of the prosecutrix, which was posted to 17.11.2006 and then again to 20.11.2006. The order sheet of the Ld. M.M. dated 20.11.2006 on the said application records the presence of prosecutrix and her father. It further shows that the prosecutrix told the Ld. M.M. that she is ready to go with her father and hence her custody was given to her father. It further appears that another application for recording the statement of the prosecutrix u/s.164 Cr.PC had been filed before SC No.67/13. (State vs. Surender etc.) Page 31 of 44 the Ld. M.M. on 20.11.2006, which had been allowed vide another separate order of the same date. However, the said application could not be traced from the record.
40. In the application dated 08.11.2006, which was dismissed by the Ld. M.M. on 15.11.2006 as aforesaid, the prosecutrix has stated that she is studying in XIIth class and is aware about her legal rights. She does not want to marry any person who is not of her choice and wants to continue her studies. She has also stated in the said application that she apprehends danger to her life at the hands of her parents, who want to get her married against her wishes and has left her parental house for the same reason voluntarily and on her own free will. Hence the contents of the said application are exactly similar to that of the writing Ex.PW7/A. As already noted, the prosecutrix alongwith her Counsel was present before the Ld. M.M. on 14.11.2006 as well as on 15.11.2006 but none of them told the Ld. M.M. on these two dates that the contents of this application are not true and correct and the prosecutrix does not press it. It appears from the order dated 15.11.2006 of the Ld. M.M. that the prosecutrix and her Counsel had pressed this application but the same was dismissed by the Ld. M.M. for the reason that it was not moved by the IO and not sponsored by the State. The prosecutrix did not tell the Ld. M.M. that she has not prepared the said application or that she had not engaged the said Counsel or that she is being forced to do so.
41. It is thus manifestly clear that the said application dated 08.11.2006 had been prepared and filed with the consent SC No.67/13. (State vs. Surender etc.) Page 32 of 44 and authority of the prosecutrix and she had not been forced or pressurized by anybody to file the said application. Since the contents of the said application are exactly similar to the writing Ex.PW7/A, prosecutrix cannot be heard to say that she had executed the said writing under the force of the accused and that its contents are not true and correct. The said conduct of the prosecutrix is indicative of the fact that she might have eloped with accused Pradeep voluntarily and on her own will to save herself from the forced marriage at the hands of her parents.
42. It is also not understandable as to what was the need for the prosecutrix to engage a Counsel and to submit an application in the court for recording her statement u/s.164 Cr.PC, if she had, in fact, been kidnapped, confined and raped. Her first endeavour should have been to meet her parents and go with them. To the contrary, she mentioned in the application that she does not want to stay with her father. She didn't tell the Ld. M.M. on 15.11.2006 to permit her to go with her father, who was present in court. She filed an application before the Ld. M.M. seeking protection from her parents, which fact is mentioned in the said order dated 15.11.2006. Her father too had moved an application seeking her custody but it appears that since she was not willing to go with him, she was sent to Naari Niketan. The said conduct of the prosecutrix demonstrates beyond doubt that whatever she had mentioned in Ex.PW7/A and application dated 08.11.2006 was true and correct. Therefore, it is evident that she had left home on 07.11.2006 to avoid being married to someone against her wishes and had gone alongwith the accused Pradeep voluntarily and had stayed with him willingly. The whole case of SC No.67/13. (State vs. Surender etc.) Page 33 of 44 the prosecution, thus, gets demolished completely.
43. It is pertinent to note here that the prosecutrix has not mentioned in either her writing Ex.PW7/A or in her application to the Ld. M.M. dated 08.11.2006 that she had been raped by accused Pradeep during the period she was with him. She also did not make any oral complaint in this regard to the Ld. M.M. on 13.11.2006, 14.11.2006 and 15.11.2006 when she was present in person in the court to press her aforesaid application for recording of her statement u/s.164 Cr.PC. Hence the conscience of this court does not permit it to believe that the prosecutrix had been raped by accused Pradeep.
44. Now it is necessary to discuss what happened after 20.11.2006 when the custody of the prosecutrix was given to her father. Till that date, she had been approaching the court through her Counsel for recording of her statement u/s.164 Cr.PC. Though her application dated 08.11.2006 in this regard had been dismissed vide order dated 15.11.2006, yet another such application was allowed by the Ld. M.M. vide order dated 20.11.2006. The order sheet of the Ld. M.M. dated 24.11.2006 shows that the case was fixed on that day for recording the statement of the prosecutrix u/s.164 Cr.PC but she was not present before the court. Her father moved an exemption application stating that she is undergoing treatment and has been declared medically unfit from 21.11.2006 to 02.12.2006, for which reason, she is not in a position to appear before the court. The exemption was granted by the Ld. M.M. and the case was adjourned to 03.12.2006. The case was taken up on 04.12.2006 as SC No.67/13. (State vs. Surender etc.) Page 34 of 44 03.12.2006 was declared as a holiday. Ld. M.M. was informed on that day that the investigation of the case has been transferred to Crime Branch and accordingly, he summoned the IO for 06.12.2006. The IO SI Mahesh Pandey appeared before the Ld. M.M. on 06.12.2006 and was directed to send the entire set of papers to the court concerned alongwith application u/s.164 Cr.PC moved by the earlier IO through the office of Ld. ACMM.
45. SI Mahesh Pandey appearing as PW17 has deposed that the investigation of this case was entrusted to him on 23.11.2006. On perusal of the case file, he came to know that the date for recording of prosecutrix's statement u/s.164 Cr.PC was fixed as 24.11.2006 but the prosecutrix did not turn up in the court on that day and the next date for recording of her said statement was fixed by the Ld. M.M. as 03.12.2006. He deposed that the prosecutrix did not turn up in the court on that day also. He contacted the parents of the prosecutrix on 10.12.2006 and 11.12.2006 to know the whereabouts of the prosecutrix but they did not tell him anything about her whereabouts. The medical examination of the prosecutrix had also to be got conducted. He, however, deposed that he contacted the parents of the prosecutrix again on 19.12.2006 who told him that they will produce the girl in Safdarjung Hospital on 20.12.2006. He stated that the prosecutrix and her father met him in Safdarjung Hospital on 20.12.2006. He got her medical examination conducted on that day and seized the sealed exhibits given by the doctor to him through ASI Pushpa. He also recorded the statement u/s.161 Cr.PC of the prosecutrix and her father which are Mark-X & Mark-Y respectively. He also deposed that he submitted an application in the court on SC No.67/13. (State vs. Surender etc.) Page 35 of 44 21.12.2006 again for recording the statement of the prosecutrix u/s.164 Cr.PC and the date given for the said purpose was 23.12.2006 but the prosecutrix did not turn up in the court on that day also. Thereafter, further investigation was entrusted to SI Satyawan. In the cross examination conducted by Ld. APP with the permission of this court, he clarified that he recorded the statement of the father of the prosecutrix on 26.12.2006 and not on 20.12.2006.
46. It may be noted here that ultimately the prosecutrix was produced before the concerned Ld. M.M. by PW15 SI Rajbir Singh on 29.1.2007 on which date her statement u/s.164 Cr.PC was recorded by Ld. M.M. i.e. PW3.
47. PW5 has deposed in this regard that when he brought the prosecutrix home after receiving her custody from Naari Niketan on 21.11.2006, she fell sick and was got admitted in Orthoplus Hospital, Najafgarh, on 22.11.2006 and remained admitted there for about 15 to 20 days. In the cross examination, he deposed that his daughter returned home about one and a half months after 21.11.2006 but could not tell the exact date. He deposed that she was staying in the house of her maternal uncle, Najafgarh, during this period and he was in contact with her throughout. He also deposed that he did not inform the police about the same. PW7 has deposed that when she returned home from Naari Niketan on 21.11.2006, she became very sick and remained admitted in Orthoplus Hospital, Najafgarh, for 8 to 10 days. In the cross examination, she deposed that after discharge from the hospital, she stayed in a house of her maternal uncle at SC No.67/13. (State vs. Surender etc.) Page 36 of 44 Najafgarh for a very long period. According to her, she had to be hospitalized on account of heart problem as well as depression and her parents were aware about the same.
48. Even if it is to be taken as true that the prosecutrix remained admitted in the hospital for about 8 to 10 days after 21.11.2006, then also it is not discernible as to why she delayed recording of her statement u/s.164 Cr.PC. Neither PW5 nor the prosecutrix (PW7) has explained as to why she went to stay with her maternal uncle at Najafgarh after discharge from the hospital. It is also not understandable as to why she was not produced before the investigating officer or before the Ld. M.M. on various dates thereafter for recording of her statement u/s.164 Cr.PC. It cannot be said from the deposition of PW5 and the prosecutrix that she remained seriously sick throughout the months of December, 2006 and January, 2007 which prevented her from appearing before the IO or before the court. Though the prosecutrix has made feeble attempt to explain her conduct by saying that she had to be hospitalized, while in her maternal uncle's house also, for some heart problem as well as depression, yet it does not appear to be true. PW5 has nowhere stated that his daughter was having any heart problem and had to be hospitalized again from her maternal uncle's house. No medical document in this regard has either been furnished to the IO or produced before this court. It has further not been explained in which hospital did the prosecutrix remain admitted for the said problem and what was the exact nature of the problem. Had it been true, PW5 would have informed the investigating officer or the court that his daughter is admitted in a hospital on account of some heart SC No.67/13. (State vs. Surender etc.) Page 37 of 44 problem. To the contrary, PW17 had been contacting the father of the prosecutrix in the month of December, 2006, to know about her whereabouts but her father did not tell him anything about her. PW5 has admitted in the cross examination that he did not inform the investigating officer that his daughter is at her maternal uncle's house. Further the assertions of the prosecutrix that she had to be admitted in a hospital on account of some heart problem in the month of December, 2006, stands falsified from the fact that she alongwith her father had reached Safdarjung Hospital on 20.12.2006 where her medical examination was conducted on that day. When the IO (PW17) again submitted an application in the court on 21.12.2006 for recording the statement u/s.164 Cr.PC of the prosecutrix, the date for which was fixed as 23.12.2006, the prosecutrix again disappeared and did not turn up in the court on that day.
49. It is thus evident that recording of statement u/s.164 Cr.PC of the prosecutrix was got delayed by her father deliberately. He sent her to her maternal uncle's house in order to keep her away from the police and did not inform the IO about her whereabouts. It had been done probably to gain time for brainwashing the prosecutrix, so that she is persuaded to make a statement against the accused before the Ld. M.M. It appears that the parents of the prosecutrix succeeded in their attempt to brainwash the prosecutrix and to motivate her to make a statement to the Ld. M.M. against the accused, which she ultimately did. Therefore, the statement u/s.164 Cr.PC of the prosecutrix Ex.PW3/A recorded on 29.1.2007 does not appear to be her voluntary statement. She has given the said statement SC No.67/13. (State vs. Surender etc.) Page 38 of 44 after being tutored by her parents on their persuasions. Such conduct of the parents of the prosecutrix also brings the case of the prosecution within the sphere of doubt. It is evident that whatever the prosecutrix has stated in the statement Ex.PW3/A as well as in her deposition before this court is only on account of the pressure of her parents and their persuasions.
50. In view of the abovenoted conduct of the prosecutrix and her parents, it is very difficult to believe that the prosecutrix had been kidnapped by accused Pradeep and then confined by him in U.P. or at various places in Delhi with active support of his family members.
51. Further the prosecutrix in her very first statement u/s. 161 Cr.PC dated 20.11.2006 has not mentioned any place in U.P. or in Delhi where she had been confined. She has stated that accused Pradeep had taken her to his maternal uncle's house in U.P. and then brought her back to Delhi during the same night and was kept at Delhi at some unknown place. It is in her second statement u/s.161 Cr.PC dated 20.12.2006 (Mark-X) that she has stated that firstly she was taken to Bulandsahar and then was brought to Delhi where she was kept in the house of accused Mahabal Mishra and accused Hira Mishra and also in the office of accused Mahabal Mishra at Mahavir Enclave. In her statement u/s. 164 Cr.PC Ex.PW3/A also, she has mentioned that upon being brought back to Delhi from Bulandsahar, she was kept for 3 to 4 days in the house of Mahabal Mishra and Hira Mishra at Mahavir Enclave and then another 3 to 4 days in the office of Mahabal Mishra at Mahavir Enclave. It is important to note here that she SC No.67/13. (State vs. Surender etc.) Page 39 of 44 has not mentioned in these statements the exact address of the house or office of Mahabal Mishra where she had been kept or on which floor she had been kept.
52. It is in her deposition before this court that she stated that first she was taken to the office of Mahabal Mishra at A-19, Palam Dabri Road, where she was kept in a room on the ground floor as well as in another room on the rear of first floor for about two days. She stated that thereafter she was taken to residence of Hira Mishra i.e. house no.RZ-C-3/189, Mahavir Enclave, and was kept there in the basement for about one day, whereafter she was taken to MIG flat no.79, Sector-18B, Dwarka, and kept there for one night. Hence she has done marked improvements in her deposition before this court over her earlier statements. More importantly there is no mention of the flat at Sector-18B, Dwarka, in any of the statements of the prosecutrix recorded during the course of investigation.
53. PW5, the father of the prosecutrix, has mentioned in his statement u/s.161 Cr.PC dated 20.12.2006 (Mark-Y) that he had taken his daughter to the area where the house and office of Mahabal Mishra is situated so that she can identify those places. It is therefore evident that the house of Mahabal Mishra and Hira Mishra as well as the office of Mahabal Mishra had been, probably, shown to the prosecutrix by her father and it is for this reason that she later on identified these places when she had been taken there by the investigating officer. The fact remains that there is no consistency in the statements of the prosecutrix regarding the places she had been kept confined and it appears that she has SC No.67/13. (State vs. Surender etc.) Page 40 of 44 taken the names of Mahabal Mishra and Urmila Mishra at the instance of somebody else.
54. The prosecutrix has nowhere stated either in her statement u/s.161 Cr.PC dated 20.11.2006 or the supplementary statement u/s.161 Cr.PC dated 20.12.2006 (Mark-X) that she had been threatened to solemnize marriage with accused Pradeep by either Mahabal Mishra or Hira Mishra or Urmila Mishra or Kiran. Nothing in this regard can be found in her statement dated 20.11.2006. In the statement dated 20.12.2006, she has merely stated that accused Urmila Mishra and her daughter asked her to marry accused Pradeep which cannot be stated to be a threat. It is for the first time in her statement u/s.164 Cr.PC Ex.PW3/A that she has mentioned that accused Urmila Mishra and her daughter told her to marry Pradeep or otherwise, they would solemnize their marriage forcefully. In her deposition before this court, she has gone further by stating that apart from Urmila Mishra and her daughter, accused Mahabal Mishra also pressurized her to solemnize marriage with accused Pradeep.
55. In view of the aforesaid inconsistent versions given by the prosecutrix in this regard, it is very difficult to hold that she had been kept confined in the house of Mahabal Mishra and Hira Mishra as also in the office of Mahabal Mishra or that she had been threatened by Urmila Mishra and her daughter Kiran. I may hasten to add that this is not withstanding the conclusion already reached by this court that the prosecutrix had left her house on her free will and had eloped with accused Pradeep voluntarily and was staying with him willingly. So even if it is taken as true that she SC No.67/13. (State vs. Surender etc.) Page 41 of 44 had been kept in the house of Mahabal Mishra and Hira Mishra as well as in the office of Mahabal Mishra, her conduct does not show that she had been confined there forcibly.
56. It is manifestly clear that the testimony of the prosecutrix as well as her father is replete with embellishments as well as prevarications. Their version does not appear to be either probable or trustworthy. They do not qualify as sterling witnesses. Their deposition does not inspire any confidence and appears to be far from being credible or cogent. The conduct of the prosecutrix and her father, subsequent to the date when the prosecutrix had appeared before the Ld. M.M. for the first time after she had been allegedly kidnapped, is absolutely unnatural and highly suspect. The recording of the statement of the prosecutrix u/s.164 Cr.PC had been deliberately delayed in order to pressurize her to toe the line of her parents. The statements of the prosecutrix in her writing Ex.PW7/A and in her application dated 08.11.2006 filed before the Ld. M.M. appears to be true and correct.
57. Evidence on record also indicates, to some extent, that the whole prosecution case may have been fabricated at the instance of the parents of prosecutrix in order to implicate the Mishra family and the family of accused Pradeep falsely in this case, probably at the behest of Inder Singh Solanki. The records produced by the DW1 show that fierce litigation was going on between Inder Singh Solanki and Mahabal Mishra in the High Court. Record produced by DW5 shows that Inder Singh Solanki was a candidate in Assembly Elections in Delhi for Nasirpur SC No.67/13. (State vs. Surender etc.) Page 42 of 44 Constituency in the year 1993 and had won but in the subsequent elections in years 1998, 2003 and 2008, the mandate had gone to Mahabal Mishra. Hence both were political rivals also. Record produced by DW2, DW3 and DW4 shows that various criminal cases were initiated by Inder Singh Solanki against the family members of accused Pradeep. Therefore, there had been animosity between the said Inder Singh Solanki and family of accused Pradeep.
58. It further appears from the record that Inder Singh Solanki had been taking interest in the proceedings of the case, even though he was not involved in it at all. He had accompanied the prosecutrix and her father to court on 23.9.2015, on which issue a quarrel had taken place between the prosecutrix's father and Mishra family members in the canteen of the court. An application for cancellation of bail of the accused Mishra family members was filed on behalf of the prosecutrix pursuant to said quarrel, which was dismissed by this court vide order dated 07.11.2005. This shows that Inder Singh Solanki was showing undue interest in this case.
59. Now, if the prosecutrix had eloped voluntarily with accused Pradeep on 07.11.2006, she would have stated so in the writing Ex.PW7/A and application dated 08.11.2006. In the said statement and the application, she, though, mentions that she had left her house voluntarily in order to avoid her marriage by her parents against her wishes but does not say that she had gone with accused Pradeep. Nothing prevented her from saying so, if she had, in fact, gone with him. As already discussed hereinabove, SC No.67/13. (State vs. Surender etc.) Page 43 of 44 she has given totally inconsistent statements regarding how she was taken away, where she had been taken to and where she had been confined.
60. In view of these facts and circumstances, this court doubts as to whether the prosecutrix had, in fact, gone with the accused Pradeep on 07.11.2006 and stayed with him till 15.11.2006. Hence the false implication of all the accused in this case at the behest of Inder Singh Solanki, who had his own axe to grind, can't be ruled out.
61. Hence the prosecution has failed to lead any cogent, credible or trustworthy evidence to prove that the prosecutrix had been kidnapped on 07.11.2006 by accused Pradeep and had been kept forcibly confined by him with the active support of his family members firstly at Bulandsahar in U.P. and then in the houses/ office of Mishra's family at Delhi and that she had been raped by him during this period.
62. Thus all the accused are hereby acquitted.
Announced in open (VIRENDER BHAT)
Court on 10.2.2016. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
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