Delhi District Court
28 vs . on 27 February, 2016
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IN THE COURT OF SH. PAWAN KUMAR MATTO:
ADDL. SESSIONS JUDGE01 (WEST):
TIS HAZARI COURTS: DELHI.
SC No. : 112/2011
FIR No.: 297/11
PS : Punjabi Bagh
U/S : 363/376 IPC
ID no. 02401R0 584 61 2011
The State
(Govt. of NCT of Delhi)
Vs.
Phiran Yadav @ Santsaran Yadav
S/o Ram Brij Yadav
R/o House no. WZ6, Golden Park Rampura,
Punjabi Bagh, New Delhi. ...... Accused
Sessions case filed on : 20.12.2011
Arguments heard on : 15.02.2016
Judgment pronounced on : 27.02.2016
JUDGMENT:
1. Brief facts of the case of the prosecution are that the FIR, in the case hand, was registered U/S 363 IPC, on the statement of the father of the prosecutrix, who has alleged therein that on 02.10.2011 FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 1 of 33 2 at about 10.00 am, his wife had gone in Satsang and at about 5.30pm, he had gone for selling vegetables, leaving his children at home and when he returned at about 8.00 pm, his daughter i.e. prosecutrix 'K' (presumed name) aged about 14 years, was not found at home and he had tried to trace her out in the houses of his relatives, but she was not found and he has also alleged that Phiran Yadav, who was residing with Ram Sewak Yadav & Dev Nath Yadav, in front of his room, had induced away to his minor daughter at Madhubani, (Bihar) and prayed for trace her out, and on such statement of this complainant, FIR bearing no. 297/11 u/s 363 of IPC was registered in PS Punjabi Bagh on dated 04.10.2011.
2. On dated 07.10.2011, IO has received the information about the presence of the accused & the prosecutrix in District Bhuruch (Gujrat) and the accused & the prosecutrix were brought by the police at Delhi and statements of the prosecutrix were recorded u/s 161 of Cr.PC & u/s 164 of Cr.PC and on completion of the investigation, chargesheet u/s 363/376 of IPC was filed.
3. On findings of the primafacie case, charges u/s 363 & 376 of IPC were framed against the accused, to which accused pleaded not guilty and claimed trial. Accordingly, the accused was put on trial. FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 2 of 33
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4. In order to prove its case, prosecution has examined 16 witnesses.
5. Ct. Ram Niwas has been examined as PW1. He has proved the seizure memo Ex.PW1/A vide which the birth certificate of the prosecutrix was seized. He has also deposed that on dated 04.10.2011, he was posted in Police Station Punjabi Bagh and the Duty Officer had handed over the rukka and the computerized copy of the FIR to him and he handed over the same to IO. He was also crossexamined. During his crossexamination, he has admitted that he has not seized the birth certificate and he does not remember the exact time, when he left the police station with rukka.
6. Whereas, the prosecutrix 'K' (presumed name) has been examined as PW2. She has testified that she is studying in 9th class & her father is a vegetables seller & she is having two brothers & two sisters and she is the eldest child of her parents. She has also deposed that accused was living with his uncle in front of her house on rent and she knew him and she used to talk with him and on dated 02.10.2011, it was the day of Navratra and at about 4.00 pm, she had gone to the room of accused to give him prashad of fruits and she returned to her house and on the same evening, she had gone to Mandir and when, she was returning to her house from the Mandir, FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 3 of 33 4 she met with the accused and he asked her to accompany him for roaming, as it was festival of Navratras, and accused took her in the metro and thereafter, they boarded in a bus for going outside Delhi and the accused took her in the house of his relative at Jaipur and they arrived at Jaipur in the morning of 03.10.2011 and they stayed till 8.00/9.00 pm and during their stay in Jaipur, she was raped by the accused and thereafter, he took her in Gujrat by train in the house of his uncle and they arrived at Gujrat on dated 04.10.2011 and she has alleged that accused had also raped to the prosecutrix in Gujrat and further deposed the uncle of accused called to the Gujrat Police and in turn, Gujrat Police had called to Delhi Police and her father arrived at Gurjat along with Delhi Police and the accused & the prosecutrix were brought at Delhi by Delhi Police and the recovery memo Ex.PW2/A was prepared. She has identified her signature thereon at point A. She has also deposed that she was medically examined and she was produced before the Ld. MM for recording of her statement. She has also proved her statement recorded u/s 164 of Cr.PC as Ex.PW2/B and further deposed that the said statement was given before the Ld. MM under the influence of accused and she has further deposed that her date of birth is 12.12.1997 and she refused for her medical examination by Gynea. due to threatening by the FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 4 of 33 5 accused.
7. This prosecutrix was crossexamined by the Ld. Counsel for accused. During her crossexamination, she has admitted that she was born in Bihar and she does not remember the year, in which, she had come to Delhi. She has also admitted that she had under gone medical examination for determination of her age. She has She has further deposed that by mistake, she would have told about her date of birth as 12.12.1997 and her correct date of birth is 12.02.1997. She has also admitted that her father accompanied her to Delhi from Gujrat, when, the prosecutrix & accused were brought at Delhi by Delhi Police. She has also admitted that her statement was recorded by Delhi Police in Gujrat and Vol. deposed that the said statement was not correct. She has also deposed that she does not remember, as to whether any complaint to senior officials of police was made regarding nonwriting of correct statement of her by Delhi Police.
8. She has admitted that she was produced in the Court at Delhi on 10.10.2011 and on the same day, the accused was also sent in jail. She has also admitted that at the time of recording of her statement u/s 164 of Cr.PC, nobody was there except the Ld. MM. She has also deposed that she does not remember, if she had told to FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 5 of 33 6 Ld. MM at the time of recording of her statement that Delhi Police has not recorded her correct statement. She has denied that Delhi Police had recorded her correct statement. She had denied that she has not been raped or that for the same reason, she had refused for her medical examination by the Gynae. She had denied that she has deposed in the Court after consulting with her counsel. She was confronted with her statements & shown improvements done by her at the time of deposing in the Court. She has also stated that she cannot tell the name of the place, from where, thd boarded in a bus for Jaipur. She has stated that she cannot tell the cost of the ticket of the said bus. She has admitted that there were many public persons on the bus stop, from where they have boarded in the bus for Jaipur. She has denied that accused had not raped or she has falsely implicated to accused at the instance of her father or that she has concocted a false story of rape against the accused. It is also denied that she was in love affair with the accused or that she had voluntarily gone with the accused. She has denied that she was not taken at Jaipur or at Gujrat by the accused. She has also denied that she was more than 16 years of age at the time of alleged incident or that she has deposed falsely.
9. Whereas, father of the prosecutrix has been examined as FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 6 of 33 7 PW3. He has deposed in this court that the prosecutrix was born in the year 1997, but, he does not remember the date and month of her birth. He has also deposed that on dated 02.10.2011, his wife had gone to attend the Satsang and he was also out of his house to sell vegetables and his children remained at home and he returned at about 8.00 pm and he found his daughter i.e. prosecutrix to be missing from the house and the prosecutrix was searched, but, she could not be found and they suspected that accused Phiran Yadav was involved in the missing of prosecutrix and he gave his statement Ex.PW3/A and the FIR was lodged and his brother Lalu Chaudhary had gone with the police at Jaipur in search of his daughter and uncle of accused namely Ram Sewak also accompanied them and on reaching at Jaipur, they came to know that accused Phiran Yadav had absconded with his daughter from Jaipur and on dated 06.10.2011/07.10.2011, they came to know that his daughter i.e. prosecutrix was with accused Phiran Yadav in Gujrat and he along with police officials including lady police went at Gujrat in seach of his daughter and when they reached at Bhuruch in Gujrat on dated 08.10.2011 and reached in police station and they found his daughtr I.e. prosecutrix along with accused was present in the police station and recovery memo of the prosecutrix was prepared Ex.PW2/A and FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 7 of 33 8 the accused was also arrested vide Ex.PW3/B and his personal search was conducted vide Ex.PW3/C. He has identified his signatures thereon and further deposed that his daughter & the accused were brought at Delhi and her daughter was taken to the hospital for medical examination, but she refused for her medical examination and her statement was also recorded by Ld. MM and he had handed over the certificate of birth of the prosecutrix to police officials vide seizure memo Ex.PW1/A and photocopy of the certificate of Birth is mark "A".
10. This witness was crossexamined by the Ld. Counsel for accused and during his crossexamination, he has stated that his marriage was solemnized in the year 1991, but, he does not remember the date & month of his marriage and admitted it to be correct that all of his children were born in Bihar and prosecutrix had studied in a school at Bihar upto 2nd/3rd class and further deposed that he is living in Delhi since 1987, but he brought his wife & children at Delhi about seven years ago. He has also deposed that he does not remember the date of birth of his youngest child. He has admitted it to be correct that when he came to Delhi along with his children & wife, he was not having any date of birth certificates of any of his children and also admitted it to be correct that the certificates of birth FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 8 of 33 9 of his children were prepared by somebody else and also admitted that those certificates were given in the school by him. He has stated that he does not know whether the prosecutrix used to talk with the accused. He has also admitted that the police did not record the statement of the prosecutrix in his presence and also admitted that statement of his brother Lalu Chaudhary was not recorded by the police. He has denied that he has deposed falsely or that he had tutored to the prosecutrix to save his prestige. He has also deposed that he does not know as to whether the prosecutrix was in love with accused. He has also stated that he has visited the police station on dated 02.10.2011 to lodge his report, but he failed to tell the name of the police official. He has admitted that he did not call the police at 100 number to report regarding the missing of prosecutrix. He has denied that he has deposed falsely. He has also denied that he has falsely got prepared the certificate of birth Mark A to show the less age of the prosecutrix.
11. Whereas, W/HC Hemlata has been examined as PW4. She has proved the seizure memo Ex.PW2/A vide which the prosecutrix was recovered. This witness was not crossexamined by Ld. Counsel for accused.
12. Whereas, Deepak Kumar has been examined as PW5 who FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 9 of 33 10 has deposed that he was working in the same factory wherein the accused was working. Accused Phiran Yadav had asked him for payment and accused had disclosed that he was taking the girl out of Delhi and he tried to inform at the house of the prosecutrix, but, he could not find anybody except a girl of 1213 years. The witness was not crossexamined.
13. Dr. Binay Kumar has been examined as PW6 who has deposed that after general examination of the prosecutrix, she was referred to Gyane Department for detailed medical examination and information. He has proved the MLC of the prosecutrix Ex.PW6/A and MLC of the accused has been proved by him Ex.PW6/B. This witness is not cross examined.
14. Whereas Ms. Charu Makkar has been examined as PW7 who has deposed that an application was moved by the IO ASI Sangeeta before the Child Welfare Committee for remedical examination of the prosecutrix which is Ex.PW7/A and the prosecutrix was produced before the Child Welfare Committee on dated 12.10.2011, but she had refused for medical examination and refusal for medical examination is Ex.PW7/B. She has further deposed that an application was also filed by the IO before CWC for bony Xray of the prosecutrix and the said application is Ex.PW7/C FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 10 of 33 11 and she was medically examined for her estimation of age. This witness was not crossexamined.
15. Whereas, Dr. Sameer Dhari has been examined, as PW8 who has testified that on 18.10.2011 he has done clinical dental examination of the prosecutrix 'K' and after examination he has prepared the report Ex.PW8/A. He has identified his signature thereon at point A. He has opined that the age of the patient is not less then 12 years and upper age cannot be given by the dentist and on the basis of radiological examination, the dental examination and physical examination as the final opinion of the age of the patient was between 16 to 18 years and the final opinion was given by the Chairman for age determination board and the radiologist. This witness was also not crossexamined.
16. Whereas, Dr. Deepshika has been examined as PW9. She has testified that she was the member of the board as physician consisting of Dr. Sameer, (Dentist) Radiologist and after medical examination of 'K', it was opined that the age of the prosecutrix 'K' was between 16 to 18 years and she has identified her signature on the final report Ex.PW8/A at point B. This witness is also not cross examined.
17. Whereas, Sh. Ajay Kuran Varun, PGT Teacher from FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 11 of 33 12 Sarvodaya Coeducational Senior Secondary School Jaidev Park East Punjabi Bagh has been examined as PW10. He has deposed that as per the admission and withdrawal register of the school, the th prosecutrix was admitted in his school in 6 Class on 26.03.2009 vide admission no.7080/41. But her admission was got cancelled on 21.11.2011 and school leaving certificate was issued to the parents of the prosecutrix, but, on dated 28.11.2011 she was again readmitted in the school and he has proved the admission and withdrawal register photocopy whereof is Ex.PW10/A. He has further testified that she was admitted in the school on the basis of school leaving certificate Ex.PW10/B issued by his previous school i.e. MCD Primay School, Ashok Park Extension, Delhi, where, she has studied th upto 5 class and her date of birth is recorded as 12.02.1997. The photocopy of the form filled up by the father of the prosecutrix at the time of admission in his school is Ex.PW10/C. This witness was cross examined and during his cross examination he has admitted that at the time of admission of the prosecutrix in the school, no birth certificate was given by the parents of the prosecutrix.
17. Whereas, Dr. Supriya, SR Gynae from SGM Hospital has been examined as PW11 who had come to depose in place of Dr. Asha who was earlier working as Sr. Gyanecologist in the SGM FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 12 of 33 13 hospital and she had left her services from the said hospital and her whereabouts were not known. This witness has identified the signature and handwriting of Dr. Asha, as, she has seen her signing and writing. She has deposed that she had seen the MLC of the prosecutrix 'K' prepared by Dr. Asha at 10.10.2011 at 11.15AM who was brought by WHC Hemlata and as per this MLC, the 'PATIENT' nd went with a boy (her neighbour) to Gujrat on 2 October and caught th by police on 8 October and she had stated no history of sexual assault. She has also deposed that as per MLC, the prosecutrix and her father refused for internal or external check up and detailed report of MLC prepared by Dr. Asha is proved as Ex.PW11/A. She had identified her signature at point A. This witness is not cross examined by Ld. Counsel for accused.
19. Whereas, Ms. Vandna, Jr. Radiographer has been examined as PW12. She has deposed that on 18.10.2011 W/ASI Sangeeta had brought the prosecutrix in DDU hospital from CWC for determination of her bony age and this witness had clicked the X rays of patient and prepared four films having no.5017 and handed over the same to Sr. Technician for report. The Xrays are Ex.X1 to X4 and the filled up XZray form signed by her same is Ex.PW12/A. She has also identified the signature and handwriting of Dr. Sameer, FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 13 of 33 14 SR Radiology on Ex.PW12/B. This witness is also not cross examined.
20. Whereas, ASI Sangeeta, IO has been examined as PW13. She has deposed that she went before CWC for remedical examination of the prosecutrix but the prosecutrix refused to undego for her internal medical examination before CWC and on 18.10.2011 she had taken the prosecutrix to DDU hospital and got her bony age determined. She has further deposed that she had collected the report from DDU hospital, as per report the age of the prosecutrix was shown between 1618 years. This witness is also not cross examined.
21. Whereas, Sh. M.N. Vijayan, Nodal Officer from TATA Tele Services Ltd. has been examined as PW14. He has deposed that as per record the mobile number 9266364615 has been issued in the name of Brijanath S/o Sh. Falli and photocopy of customer application form is Ex.PW14/A along with I.D. Proof i.e. photocopy of election card Ex.PW14/B, photocopy of customer declaration form Ex.PW14/C and call details from 22.09.2011 to 03.10.2011 is Ex.PW14/D and his certificate U/S 65B(4)(C) of Evidence Act regarding correctness of call details is Ex.PW14/E. This witness was cross examined by the counsel for accused and this witness admitted FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 14 of 33 15 to be correct that from the call records the conversation cannot be ascertained.
22. Whereas, First Investigation Officer/SI Sanwar Mal has been examined as PW15. He has deposed that on 04.10.2011 complainant i.e father of the prosecutrix got recorded his statement Ex.PW3/A in PS and he endorsed the same Ex.PW15/A and handed over the same to duty officer for registration of the FIR and he visited the house of the complainant and conducted local enquiry. The complainant handed over the certificate of birth of prosecutrix mark A to him and he seized the same vide Ex.PW1/A. He has also deposed that he got flashed WT message and after completing the other formalities of kidnapping/missing person, he recorded the statements of witnesses and on 06.10.2011 he along with complainant and other police party left Delhi for Gujrat. He also stated that on 08.10.2011 with the help of local police they raided House no.1013, Somani Chowkri Shubham Geraj, GIDC Ankleshwar Distt. Bharuch, Gujrat and the prosecutrix along with accused were found in that house and the prosecutrix was identified by her father and further deposed that the prosecutrix was recovered vide memo Ex.PW2/A and he interrogated and arrested the accused vide Ex.PW3/B and conducted his jamatalashi vide Ex.PW3/C and they FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 15 of 33 16 reached Delhi on 10.10.2011 and thereafter, the prosecutrix and accused were medically examined. The prosecutrix refused for her internal checkup. He further deposed that the sealed exhibits of the accused were handed over to him by the doctor and he seized the same vide Ex.PW15/B and he got recorded the statement of the prosecutrix U/S 164 of Cr.P.C. He has further deposed that accused was produced before the court and sent to in judicial custody and the prosecutrix was sent to CWC and further investigation was handed over to ASI Sangeeta. During his cross examination of this witness he has stated that he does not know the name of the any public person from whom the enquiries were made in the locality of the accused and the prosecutrix. He has also stated that no public person was joined in the investigation at the time of arrest of the accused and recovery of the prosecutrix and he has not collected the school record regarding the date of birth of the prosecutrix.
23. Whereas HC Satbir has been examined as PW16. He has deposed that on 06.10.2011 he was posted at PS Punjabi Bagh. He along with WHC Hemlata and father of the prosecutrix and SI Sanwar Mal gone to Ankleshwar, Gujrat and they reached Ankleshwar in Gujrat on 08.10.2011 and went to the PS GIDC and informed to the local police and the accused was arrested and the prosecutrix was FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 16 of 33 17 also taken into custody vide recovery memo of the prosecutrix which is Ex.PW2/A and the accused was arrested vide Ex.PW3/B and his personal search was conducted vide memo Ex.PW3/C and he had identified his signatures thereon. This witness is also cross examined and during his cross examination he had deposed that he cannot tell the DD entry vide which he left the PS for Gujrat.
24. On the completion of the evidence of the prosecution, the accused was examined U/S 313 of Cr.P.C. He has denied the correctness of the evidence of the prosecution and pleaded innocence and deposed that the prosecutrix had voluntarily gone with him and he did not committed any rape of her.
25. I have heard the submissions of the Ld. Counsels for the parties and perused the record.
35. The perusal of the record shows that in the case in hand, the accused is alleged to have kidnapped to the prosecutrix "K" on dated 02.10.2011. As per the copy of admission and withdrawal register Ex.PW10/A, copy of school leaving certificate Ex.PW10/B, application form for admission Ex.PW10/C and photocopy of birth certificate issued by the Registrar Birth, Govt. of NCT of Delhi mark 'A', the prosecutrix was born on dated 12.02.1997. Whereas, the prosecutrix had undergone test of ossification on dated 18.10.2011 FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 17 of 33 18 in accordance with the report thereof Ex.PW8/A, the age of the prosecutrix is 1618 years.
27. The FIR was registered U/S 363 of IPC on dated 04.10.2011 on the statement of the father of the prosecutrix recorded on dated 04.10.2011 at 1.40PM Ex.PW3/A. The father of the prosecutrix has alleged in his statement Ex.PW3/A that the prosecutrix is 14 years of age and she has been kidnapped by the accused Phiran Yadav. The father of the prosecutrix has been examined as PW3 in this court, who had admitted during his cross examination that his all children were born at Bihar and when he came to Delhi, he was not having certificates of birth of his children and also admitted that certificates of birth of his children, including the prosecutrix's birth certificate were got prepared by somebody else. This copy of the certificate of birth of the prosecutrix mark A issued by Registrar Birth and Death of Govt. of NCT of Delhi, wherein the date of birth of the prosecutrix is mentioned as 12.02.1997 and place of birth is mentioned as Saint Stephen Hospital becomes suspicion. As the prosecutrix was not born in Saint Stephen Hospital and she was born at Bihar, as PW2 and PW3 have admitted in their cross examination that prosecutrix was born at Bihar.
28. It is worth while to mention here that Sh. Ajay Kuran Varun, FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 18 of 33 19 PGT from Sarvodaya Senior Secondary School who has been examined as PW10 has proved the document Ex.PW10/A, Ex.PW10/B and Ex.PW10/C and in accordance with which the date of birth of prosecutrix is 12.02.1997. But, during his cross examination this witness has admitted that no certificate of birth was given by the parents of the prosecutrix at the time of her admission in the school. Thus, it is clear that the date of birth of the prosecutrix in her record of school was recorded as 12.02.1997 without any proper date of birth certificate, so in the light of the law laid down by the lordship of Supreme Court in case "Birad Mal Singhvi Vs. Anand Purohit, 1988 (Supp) SCC 604", wherein it was held that :
"But the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded"
29. The date of birth as mentioned in Ex.PW10/A, Ex.PW10/B and Ex.PW10/C cannot be relied upon.
30. Therefore, in the given circumstances, the report of ossification of the prosecutrix becomes relevant, as the prosecutrix had undergone test of ossification as per the final opinion mentioned in the report Ex.PW8/A, the age of the prosecutrix is 1618 years. FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 19 of 33
20 The prosecutrix is alleged to have been kidnapped on 02.10.2011, whereas the ossification test of the prosecutrix were conducted on 18.10.2011 i.e. after 16 days from the date of alleged kidnapping of the prosecutrix. Thus, even if, the period between the date of kidnapping and date of her test of ossification is excluded even then, the prosecutrix cannot be held to be less than 16 years of age as the benefit of margin of one year upward may be given to the accused. The prosecutrix who has been examined as PW2 has nowhere alleged that the accused had induced, enticed or used any force to take the prosecutrix at Jaipur. She has admitted that she went to Jaipur with the accused in a bus and reached at Jaipur on 03.10.2011. Thereafter, they went to Gujrat on 04.10.2011 in train and it is not the case of the prosecution that any force was used by the accused either to take her Jaipur or at Gujrat. Had she been kidnapped by the accused, she could raise hue and cry in the bus or in the train or she could seek help from the copassenger in the bus or train. But, she did not resort to seek any help from any co passengers in the bus or in the train. The statement of the prosecutrix was also recorded u/S 161 of Cr.P.C. on dated 10.10.2011 which is Ex.PW2/DA wherein, she has stated that the accused has done no GALATKAAM with her. Whereas, at the time FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 20 of 33 21 of recording of her statement u/S 164 of Cr.P.C. Ex.PW2/B she has deposed that "on 02.10.2016 she and the accused (both) were in fast of Navratra and room of the prosecutrix and the accused were nd abutting to each other and on 2 October, she went to give fruit to the accused in his room and her father had seen to the prosecutrix, when, she was coming out of the room of the accused and the prosecutrix got afraided that her father would beat both of them so, both of them went to Jaipur, thereafter, they went to Gujrat in the house of brother of the accused and thereafter, at Surat and from there they went to Ahmdabad in the house of another relative of the accused and his brother telephonically informed to the Delhi police and Delhi police telephoned to the Gujrat police and Gujrat police caught both of them and Delhi police caught them and further deposed that the accused had not done any GALATKAAM with her and the prosecutrix and accused had developed physical relation voluntarily and the accused has not committed any wrong and she desired to live with the accused and she was not intending to live with her parents".
31. Whereas, at the time of recording of her statement in this court, she has deposed that she was raped by the accused. She had given her statement Ex.PW2/B recorded U/S 164 of Cr.P.C. under FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 21 of 33 22 the influence of the accused. But during her crossexamination, she has admitted that on the date of recording of recording of her statement U/S 164 of Cr.P.C, the accused was in the custody of the police and the prosecutrix has alleged that the Delhi police had not recorded her correct statement. But, she has failed to explain, as to how the accused could influence to the prosecutrix, when he was in custody of the police and if the Delhi police had not recorded her correct statement, she could file the complaint to higher authorities of the police. But, admittedly, she did not file any such complaint to any higher authority/officer of the police. So, in the absence of any complaint such allegations against the police does not inspire any confidence. The prosecutrix was taken to the Sanjay Gandhi Memorial Hospital, New Delhi for her medical examination. But, she had refused for her internal and external medical examination. The MLC of the prosecutrix is Ex.PW6/A reveals that it is mentioned therein and that "accordingly to the patient no history of sexual assault". Thus, it is clear that the prosecutrix also deposed before the doctor, who prepared her MLC Ex.PW6/A that there was no sexual assault on her. The prosecutrix is alleged to have been kidnapped on dated 02.10.2011 whereas, the FIR has been registered on 04.10.2011. The delay in lodging of FIR creates clouds of suspicion. FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 22 of 33
23 The father of the prosecutrix has been examined as PW3 and during his crossexamination he has deposed that he does not know that whether the prosecutrix was in love with accused. He has also admitted that he did not go to police station on dated 02.10.2011. Thus, from such statement of PW3, it is clear that PW3 deliberately concealed this fact that the prosecutrix was in love with the accused and he deliberately did not register the FIR on 02.10.2011. The testimony of the prosecutrix is full of contradictions, discrepancies, inconsistencies and embellishments, as she has deposed in her statement recorded U/S 161 of Cr.P.C. on dated 10.10.2011 Ex.PW2/DA that the accused has not done any GALATKAAM with her, whereas, in her statement recorded U/S 164 of Cr.P.C, she has admitted that the accused is not at any fault and she had voluntarily done sex with the accused and MLC of the prosecutrix Ex.PW6/A reveals that she had told to the doctor that no history of sexual assault and refused fo her internal and external medical examination. But again, when she appeared in this court, she has started leveling allegations of rape against the accused. Since, as per the report of ossification, her age is 1618 years and the prosecutrix has admitted in her statement recorded U/S 164 of Cr.P.C that she had voluntarily sexed with the accused. So, as per unamended Section 375 of IPC, FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 23 of 33 24 the prosecutrix being of aged 1618 years was able to give her consent for sex with the accused. The Ld. Counsel for the accused has submitted that there were no sexual relation between the accused and the prosecutrix nor it is proved on the record with any cogent medical evidence.
32. Since the prosecutrix is changing her statement from time to time so, the statements of prosecutrix recorded at different stages is found to be inconsistent, embellished and contradictory.
33. As the lordship of Supreme Court was pleased to hold in case Suraj Mal Vs. State (Delhi Administration) AIR 1979 Supreme Court 1408 was pleased to hold that:
"it is well settled that where witnesses make two inconsistent statements in their evidence either on one stage or at two stages, the testimony of such witness become unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witness."
34. Since in the case in hand the prosecutrix is making the contradictory statements. So, the testimony of the prosecutrix is full of suspicion. In view of such inconsistencies, contradictions and embellishments in the testimony of the prosecutrix, it was essential FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 24 of 33 25 for the prosecutrix to lead any other cogent evidence, which may prove and corroborate the allegations of rape. But, the prosecutrix has refused for her internal and external medical examination. So, in view of the refusal for her internal and external medical examination, the adverse inference is drawn against the prosecutrix. Since the prosecutrix has alleged that she was kidnapped by the accused whereas, report of ossification of the prosecutrix reveals her age is 1618 years. Thus, it is clear that the prosecutrix is not a small girl. She is well grown girl and and since, she had admitted in her statement recorded U/S 164 of Cr.P.C that she had gone voluntarily with the accused. So, I am inclined to hold that the prosecution has failed to prove that the prosecutrix was kidnapped by the accused. So far as the allegations of rape is concerned, the age of the prosecutrix proved to be 1618 of years and offence of rape are alleged to have committed between 03.10.2011 to 08.10.2011 . The test of ossification was conducted on dated 18.10.2011. So, taking into consideration the age of prosecutrix as per report of ossification Ex.PW8/A, the prosecutrix is 1618 years of age on the date of her test of ossification. The prosecutrix has alleged that she was raped, but the M.L.C. Ex.PW6/A does not corroborate such statement and had she been raped repeatedly by the accused, she could raise FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 25 of 33 26 hue and cries and the accused could be apprehended. Then and there, but as the prosecutrix has admitted that she went to Gujrat in train, so she could report to any copassenger in the train or to the police available during their journey from Jaipur to Gujrat. But she did not tell to any person and even at the time of preparation of her MLC Ex.PW6/A, she did not tell to the doctors about any history of sexual assault. Had she been raped by the accused, she could tell to the doctor. But she did not tell. So, her conduct is unnatural and unreasonable.
35. In the judgment also passed by Hon'ble High Court of Delhi in Kuldeep Tyagi v. State NCT of Delhi, 213(3) C.C. Cases (HC) 179, it is observed that: "13. In the instant case the prosecutrix was on the verge of attaining majority. She was working in ICICI Bank. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. She had friendship with the accused and had no grievance against his conduct and behaviour at any time. She had established physical relationship number of times. She accompanied the accused with his friends to different places at Shimla, Nanital and Mussoorie. She never informed her parents and kept it a secret. She had physical relations with the accused at different places with her consent without any resistance. During that period, she never lodged any complaint against the accused for cheating her. She never resisted the accused to marry her. She never informed her parents about her friendship with the accused and his promise to marry. She gave inconsistent and contradictory version in her statement FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 26 of 33 27 under section 161 of Cr.P.C./164 of Cr.P.C. and the one in the Court. Allegations against the accused for forcibly kidnapping her and demand of ransom of Rs.15 Lacs could not be established. Coaccused Raj Kumar remained in custody for long time but in her statement the prosecutrix had no complaint against him and it resulted in his acquittal. The accused was already a married man having kids. All these surrounding circumstances reveal that the prosecutrix established physical relationship with the accused with her free consent and there was no false promise to marry. She was under no misconception of fact before offering consent. It was an act of promiscuity on her part and not an act induced by an act of misconception of fact. Her consent was voluntary."
36. In the judgment passed by Hon'ble High Court of Delhi in Rameshwar Giri V. State, 211 (2014) Delhi Law Times, 508, it is observed that: "16. As held by the Supreme Court in AIR 1965 SC 942, S. Varadarajan V. State such an act would tantamount to 'taking'. The observations of the Apex Court in this context are as under:
"The offence of 'kidnapping from lawful guardianship' is defined thus in the first paragraph of Section 361 of the Indian Penal Code:
"Whoever taken 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'
8. It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping.........11. It must, however, be borne in mind that there is a distinction FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 27 of 33 28 between 'taking : and allowing a minor to accompany a guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful quardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.
12. It would, however, be sufficient if the prosecution establishes that through immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to 'taking'."
"17. This version is further fortified by the fact that the victim was admittedly known to the accused as he was residing in the same street since the last 2 years. The fact that the accused was known to the victim is also admitted by both PW6 and PW7 i.e. the mother and father of the victim. PW5 had accompanied the appellant for sightseeing; they did sightseeing for one hour in Delhi; then by a TSR, the appellant took her to the railway FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 28 of 33 29 station; people were gathered there to purchase tickets. Tickets were purchased by the appellant from the railway station from where he took her to Bihar which would be a more than one day journey. The victim stayed in the village of the appellant 23 days. She was never threatened by the persons living in that house/ 56 ladies were also present. Other persons from the village also came to meet her. The MLC of the victim also shows that there was no injury upon her person. This corroborates the argument of the Learned Counsel for the appellant that the victim was not subjected to any force.
18. This Court thus necessarily draws the conclusion that the victim was a consenting party with the accused. The offence of rape as defined under Section 375 of the IPC (unamended) is not made out as for the purposes of rape to qualify as a minor, the victim should be less than 16 years. As noted supra, the victim was aged 15 years & 9 months on the date of the offence i.w. just about three months short of the age of 16. Being in the age of discretion; this Court is of the view that she was conscious of her act in accompanying the accused and it cannot be said to be an act of force. The accused is entitled to an acquittal for the offence under Section 376 of the IPC. He is accordingly acquitted of the said charge.
37. Since the accused is facing the charges U/S 363/376of IPC, so, it was incumbent on the part of the prosecution to prove its case beyond reasonable doubt. But, the statements of the prosecutrix as discussed above, suffer from material contradictions, inconsistencies and embellishments. The testimony of the prosecutrix is not corroborated with any medical or cogent independent evidence. The accused has taken the plea that he has been falsely FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 29 of 33 30 implicated in the present case since the prosecutrix had admitted in her statement recorded U/S 161 of Cr.P.C Ex.PW2/DA that the accused had not done any GALATKAAM with her at the time of recording her statement U/S 164 of Cr.P.C Ex.PW2/B she has stated that accused has not done any GALATKAAM with her and again deposed that she had developed physical relation with her consent and since, the testimony of the prosecutrix is found to be inconsistent and embellished and her MLC Ex.PW6/A reveals no history of sexual assault and from the report of ossification, it is clear that the age of the prosecutrix is 1618 years and the prosecution has failed to prove on record that with any corroborative evidence that the prosecutrix has been raped, as the prosecutrix has refused for her internal and external medical examination. So, the adverse inference is drawn against the prosecutrix and since the prosecutrix is between 1618 years of age. So, this court is of the considered opinion that the sexual relation, if any, developed between the prosecutrix and accused were consensual and the prosecutrix was a consenting party and the offence of rape is defined under Section 375 of the IPC (unamended) is not made out, as for the purposes of rape to qualify as a minor, the victim should be less than 16 years. This Court is of the view that she was conscious of her act in accompanying the FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 30 of 33 31 accused and it cannot be said to be an act of force. Since, it is proved on the record that the age of the prosecutrix is 1618 years and in view of inconsistent and embellished testimony of the prosecutrix, it was required to be corroborated with any medical/cogent evidence and the prosecutrix has failed to lead any medical/cogent evidence which may prove that the prosecutrix was raped. So, in the absence of any medical cogent evidence, the ocular testimony of the prosecutrix is not sufficient to hold guilty to the accused, as the testimonies of the prosecutrix and PW3 are suspicious and do not inspire any confidence.
38. Since, it is proved on the record that the age of the prosecutrix is 1618 years. She was in better position to take the decision. She could not be kidnapped. The testimony of the prosecutrix being inconsistent, contradictory and embellished does not inspire any confidence. Therefore, I am inclined to hold that the prosecutrix had voluntarily accompanied the accused being in love with the accused. So, it cannot be said that the accused had induced or kidnapped to the prosecutrix or he had raped to the prosecutrix.
39. On consideration of the totality of the facts and circumstances, it will be unsafe to convict the accused, as there are so many infirmities, holes and lacunae in the version of the FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 31 of 33 32 prosecution, as discussed above. The prosecutrix is alleged to have been kidnapped on dated 02.10.20111 whereas FIR has been registered on dated 04.10.2011 and there is delay in registration of the FIR
40. In the case of Thulia Kali Vs. State of Tamil Nadu, reported in AIR 1973 Supreme Court 501, the Apex court observed that : ".. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets benefit of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.... The said circumstance, in our opinion, would raise considerable doubt regarding the veracity of the evidence of those two witnesses and point to an infirmity in that evidence as would render it unsafe to base the conviction of the accusedappellant upon it...."
41. The FIR has been registered on the statement of the father of the prosecutrix who has been examined as PW3 and during his crossexamination he has stated that he does not know that the prosecutrix was in love with the accused. He has also admitted that he did not telephone to the police at 100 number on 02.10.2011, meaning thereby he was aware that the prosecutrix had voluntarily gone with the accused and after concealing the age of the FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 32 of 33 33 prosecutrix he has lodged the FIR after colouring the version.
42. In view of the above discussion, I am inclined to hold that since doubts are there in the version of the prosecution and benefit of doubts is liable to be given to the accused. Therefore, I am inclined to hold that the prosecution has failed to prove it's case beyond reasonable doubt against the accused. Accordingly, the accused is acquitted of the charges. As per provision of Section 437 A of Cr.P.C the accused is ordered to be released on bail on furnishing of bail bond in a sum of Rs.10,000/ with one surety of like amount for a period of six months. The accused shall ensure his attendance and appearance before the Ld. Appellate Court, if so required. On filing of the bail bond/surety bond, the file be consigned to Record Room. The case properties are ordered to be disposed of after expiry of statutory period of filing of the appeal. Announced in the open court (PAWAN KUMAR MATTO) today i.e. on 27.02.2016 Additional Sessions Judge01(West) Tis Hazari Courts, Delhi FIR No. 297/11 PS Punjabi Baqh State Vs. Phiran Yadav Page 33 of 33