Delhi District Court
State vs . Rajesh Mehto on 25 October, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 60/2012
Unique Case ID: 02404R0185712012
State Vs. Rajesh Mehto
S/o Sh. Mahavir Mehto,
R/o House No. 140,
Pitampura Village, Delhi.
(Convicted)
FIR No. : 135/2012
Police Station : Rani Bagh
Under Section : 363/366/376 Indian Penal Code
Date of committal to Sessions Court : 27.07.2012
Date on which orders were reserved : 25.10.2012
Date on which judgment pronounced : 25.10.2012
JUDGMENT
Brief Facts:
(1) As per the allegations, on 27.04.2012 at about 7 AM at House No. 140, Village Pitampura, Delhi, the accused Rajesh Mehto, had kidnapped the minor girl 'A' aged about 16 years (name of the girl is withheld being the case under Section 376 IPC), from the lawful guardianship of her parents with intention that she may be State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 1 of 36 forced or seduced to illicit intercourse. It is further alleged that between 27.4.2012 to 7.5.2012 the accused Rajesh Mehto committed rape upon the prosecutrix 'A' without her consent at Jallandhar, Punjab.
Case of prosecution in brief:
(2) The case of the prosecution in brief is that on 30.4.2012 the complainant Hari Narain Sharma came to the Police Station and gave his statement to the police wherein he stated that on 27.4.2012 at about 7 AM his daughter 'A', aged about 16 years, studying in Class 10th at Sarvodaya School, had gone to her school and did not return home thereafter. He further told the police that he had made efforts to search for his daughter but could not trace her. He also gave the description of his daughter to the police and expressed his suspicion that somebody had allured his daughter and had taken her away. On the basis of the statement of Hari Narain Sharma, present FIR was recorded and the investigations was initiated. Thereafter, during investigations, the prosecutrix 'A' was got recovered from Grover Colony, Jallandhar, Punjab, along with the accused.
Thereafter, the accused and the prosecutrix were brought to Delhi, prosecutrix was medically examined and the accused was arrested. After completing the investigations, the charge sheet was filed in the court.
State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 2 of 36 CHARGE:
(3) Charge under Section 363/366/376 Indian Penal Code was settled against the accused Rajesh Mehto to which he pleaded not guilty and claimed trial.
EVIDENCE:
(4) In order to discharge the onus upon it, the prosecution has examined as many as eleven witnesses:
Public Witnesses:
(5) PW5 Hari Narain Sharma has deposed that he was residing at the aforementioned address since last eight years along with his family comprising of his wife and three children i.e. two daughters and one son. According to the witness, the prosecutrix 'A' is his eldest daughter. He has deposed that he does not recollect the exact date but it was on 26th or 27th of April when his daughter had gone to school in the morning at around 7:157:30 AM but she did not reach back home after 2 PM. According to the witness, he went to her school but could not locate her and he was informed by the school authority that she had not come to the school. He has deposed that he tried to search for his daughter for 34 days i.e. 30.04.2012.
The witness has deposed that he also tried to search for her in the neighbourhood and came to know that the accused Rajesh Mehto State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 3 of 36 who was residing on the ground floor was also missing. The witness has deposed that the sister of Rajesh Mehto told him that her brother had also missing and his daughter had eloped with him. According to the witness, at the time when his daughter got missing, she was wearing a school dress and hence he gave a complaint to the police on 30.04.2012 which is Ex.PW5/A bearing his signatures at point A. He has deposed that police also searched for his daughter during this period and either it was 05 or 06 of May 2012 when the chacha/uncle of the accused whose name is Shankar told him on phone that the accused Rajesh (correctly identified by the witness) was perhaps in Jalandhar with his daughter. According to the witness, on receipt of this information he also informed the police but since he was not very confident and sure whether his daughter was in Jalandhar, Punjab or not, so he went to Jalandhar along with another uncle of accused namely Shyam. The witness has deposed that there at Jalandhar, they went to at House No. 173, where he found his daughter along with accused in a gher. He has further deposed that as soon as he found his daughter there he informed the Punjab police and he showed them the copy of the FIR registered by him at Delhi. The witness has deposed that thereafter his daughter was rescued and all of them i.e. he himself, his daughter and the accused Rajesh were taken to the police station by the Punjab Police and information was given to Delhi police by them on telephone after which the Delhi State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 4 of 36 police reached Jalandhar. The witness has deposed that thereafter the accused was arrested vide memo Ex.PW5/B, his personal search was also taken vide memo Ex.PW5/C and thereafter they came back to Delhi where the statement of his daughter was recorded. The witness has deposed that thereafter daughter was taken to Bhagwan Mahavir hospital where her medical was got conducted and her bone age examination was also got conducted. He has further deposed that on the same day the accused was produced in the court and his daughter was sent to Nari Niketan. According to the witness, he got his daughter released from Nari Niketan after about 910 days. (6) In his cross examination by Ld. Defence Counsel, the witness has deposed that he is residing is on rent and the family of the accused is also residing on rent on the ground floor. According to the witness the family of the accused had come to the ground floor about 45 months prior to the incident and has voluntarily added that they were residing there from prior to that period. The witness has admitted that the family of the accused is residing in the area for the last 45 years and had shifted to the house just 45 months prior to the incident. Witness has denied that his family and daughter are known to the accused prior to the shifting to the above said house. The witness has deposed that he cannot tell the exact date of birth of his daughter and has voluntarily added that it was in the year 1997. According to the witness, his daughter was born at home in his native State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 5 of 36 place i.e. Village Kherhar, District Madhubani, Bihar, and has voluntarily explained that he was married on 03.03.1994 and his daughter 'A' was born on 12.10.1995. The witness has admitted that the date of birth given in the school record of 10.02.1997 is not correct date of birth and has voluntarily explained that it was only given on the advise of his family members for purposes of providing her the benefit that this age was given in the school record. (7) The witness has admitted that before he went to Jalandhar, his daughter had even given him a telephone call and inform him that she was with Rajesh and that she was getting married to Rajesh and has voluntarily added that his daughter only told him that she was with Rajesh voluntarily and was alright and that police should not trouble the mother of the accused. The witness again said that later his daughter told him that it was on the instructions of the cousin of the accused i.e. Son of the Chacha who had threatened to kill her that she had made a call and asked them not to trouble the mother of the accused. The witness has denied that when he went to Jalandhar and found his daughter he saw that she was voluntarily residing with the accused without any fear and has voluntarily explained that he saw that she was under fear and was locked in a room from inside. The witness has deposed that he did not tell the Delhi police that his daughter was locked in a room when he found her. He has denied that he did not tell this fact to Delhi police or to the Jalandhar police State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 6 of 36 regarding his daughter being locked in a room because there was no such thing. The witness has admitted that when he knocked the room, which was locked from inside, the same was opened by Rajesh Mehto. The witness has admitted that Rajesh Mehto accompanied him to the police station and has voluntarily added that he had caught him and that is why he had no occasion to run away. The witness has further admitted that he was alone whereas both the uncles / chachas of the accused and the family of one of the uncle were there at the spot. He has also denied that the entire family of the accused were cooperative and did not object when he took the accused and his daughter to the police station. He has also admitted that his daughter was residing with the family of the Chacha of the accused. The witness has further admitted that when he saw his daughter first, she appeared to have got married and have dressed up like a bridal wearing a Mangalsutra, having Choora and a Sindoor. He has denied that his daughter had told him that she had voluntarily got married with the accused and did not want to go back to Delhi. The witness has denied that he had brought his daughter back on a promise that he will formally get her married with the accused before the family and the community but thereafter went back on his word. He has also denied that his daughter did not want to join him and it is for this reason that she was sent to Nari Niketan, and has voluntarily explained that his daughter was ready to accompany him but it was State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 7 of 36 with the connivance with the accused and the police that she was sent to Nari Niketan. He has denied that he was told about the presence of his daughter at Jalandhar by Shyam and not by Shankar. (8) PW6 Harpreet Singh has produced the admission and date of birth record of the prosecutrix 'A' and as per the admission and withdrawal register the prosecutrix 'A' was admitted in the school on 01.07.2008 in Class 6thon the basis of SLC issued on 31.03.2008 from Ghamail Parmeshwar Govt. Vidhayalya, District Mandhepura, Bihar, and her date of birth as per the school record is 10.02.1997. The witness has deposed that the child has now left the school vide SLC issued on 03.05.2012. The relevant entry in the admission and withdrawal register is Ex.PW6/A (Original seen and returned). The witness has also brought the pasting file and the copy of the SLC certificate of the Primary School of District Mandhepura, Bihar is Ex.PW 6/B (original seen and returned). According to the witness, on the basis of the official record, the Vice Principal of the school has also issued a certificate vide Ex.PW6/C bearing the signatures of Vice Principal at point A which the witness identify having seen her in official course. The copy of the school leaving certificate issued by their school dated 03.05.2012 is EX PW 6/D (not disputed) (9) In his cross examination by Ld. Amicus Curaie, the witness has deposed that he cannot tell on what basis the entry was State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 8 of 36 made in the school record at Primary School, District Mandhepura, district Bihar and has voluntarily explained that they had made entry on the basis of the earlier SLC.
(10) PW10 is the prosecutrix 'A'. She has deposed that she was residing at the given premises on rent for the last five years along with her family comprising of father, mother, younger brother and sister and she is the eldest. According to the prosecutrix, on 27.4.2012 she left her house at about 7:00 AM for going to school and on the way she met the accused Rajesh (correctly identified by the witness) who was residing on the ground floor of the same house where she was residing and he told her that they would go to site seeing but she refused stating that her parents would be very upset with her. The prosecutrix has deposed that the accused Rajesh threatened her that in case if she did not accompany him, she would not be spared (agar tum mere saath nahin chalogi to, tum bach ke nahin jaa paogi) and thereafter, the accused convinced her and told her that they will go to site seeing only in Delhi and after his great persuasions she agreed for the same. The prosecutrix has further deposed that the accused Rajesh took her in an Auto to ByePass and thereafter in a bus he took her to Jallandhar to his ChachaChachi who were residing there. According to her, when she reached Jallandhar she told Rajesh that he should permit her to speak to her parents on telephone but he and his family refused and told her that State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 9 of 36 she could not speak to her parents. The witness has deposed that thereafter in the house of his ChachaChachi, the accused forcibly put sindoor on her forehead. According to the prosecutrix, she had told the accused that she did not agree to this kind of a marriage without consent of her parents but the accused told her that since her parents will never agree to her marriage to him, therefore he has performed the marriage himself and thereafter without her consent he repeatedly made physical relations with her. The prosecutrix has deposed that she used to scream for help in the said house but her voice could not reach outside. She has deposed that somebody made a call to her father and thereafter her father reached Jallandhar on 6.5.2012. She has further deposed that her father also made a call to Delhi Police and the IO Madam came to the house of the Chacha Chachi of the accused and from there she was rescued and brought back to Delhi. She has further deposed that she was also taken to the hospital for her medical examination but she did not permit her medical examination. She has further deposed that next day she was also brought to Rohini Courts where her statement was recorded by the Ld. MM which is Ex.PW10/A bearing her signatures at various points marked A. (11) In her cross examination by Ld. Amicus Curiae, the witness has denied that she was known to the accused for about 56 months prior to the incident i.e. after the accused and his family had State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 10 of 36 shifted the premises on the ground floor, and has voluntarily explained that she knew the sister of the accused because she is of her age. The prosecutrix has further denied that she used to regularly interact with the accused and also used to speak him on the way while going to the school or that she was in love with the accused and she was aware that her parents would not permit her to marry the accused on account of caste differences. The witness has admitted that the accused Rajesh belongs to Bihar and has voluntarily explained that the accused is from a different village. The prosecutrix has admitted that the accused belongs to a Scheduled Community whereas she is a Brahmin. She has denied that her parents were always objecting to her interacting with the family of the accused on account of the caste reasons and has voluntarily added that she was not known to the family of the accused and she only knew the sister of the accused since she was studying in the same school. The prosecutrix has denied that she and the sister of the accused used to study together and that is how she became very close to the accused or that being aware that her family was not agreeable to her alliance with the accused, she voluntarily eloped with the accused Rajesh. The prosecutrix has admitted that she did not raise any alarm on the way when the accused was threatening her. She has deposed that she was told by the accused that he would take her to ByePass so that they could take another bus to Lotus State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 11 of 36 Temple. She has admitted that she had gone with the accused for site seeing of her own will. The prosecutrix has again said that she did not go with the accused of her own will but she had gone because the accused had threatened her. The witness has deposed that she did not tell the Auto Driver that the accused was taking her after threatening her. She has deposed that the accused had stopped her at a distance of about 10 minutes from her house and she in school dress at that time i.e. Green coloured Salwar and Kameez. She has deposed that she was in the school dress when the accused took her to ByePass in the auto and she was in the school dress when she was being taken to Jallandhar. The prosecutrix has admitted that she did not tell the Conductor or the Driver or other passengers that the accused was forcibly taking her with him. She has deposed that they reached Jallandhar at about 4:005:00 PM and the bus had stopped for quite some time at twothree places to enable the passengers to have tea and snacks and also to go to washroom to attend the calls of nature and has voluntarily explained that the accused did not permit her to leave the bus. According to the witness she did not go to washroom on the way and has admitted that she did not tell the Driver of the Conductor of the bus that the accused was not permitted him to get down from the bus and has voluntarily explained that she had told one Aunty on the way that the accused was not permitting her to get down from the bus on which the lady refused to help stating what State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 12 of 36 would can she do (hum kya karen).
(12) The prosecutrix has further deposed that she did not tell the police or to the Ld. MM that she had sought help from one lay on the way. According to the witness, in Jallandhar she was made to get down outside the main bus stand and we did not enter the bus stand due to which reason she did not notice any police officials and has voluntarily added that the brother of the accused had brought a vehicle in which she was taken to the house of his ChachaChachi She has deposed that the brother of the accused had brought an Auto and she had told the Auto Driver that she was being forcible taken and has voluntarily added that the Auto Driver was a relative of the accused because she had seen them talking. The prosecutrix has further deposed that she did not tell the police or the Ld. MM regarding the Auto Driver being related to the accused nor she not inform the owner of the house or the other residences that the accused had brought he forcible and has voluntarily explained that the owner of the house was not residing and only the tenants were residing there and she was not permitted to go out. The prosecutrix has admitted that the toilet/ washroom was situated outside the room where she was kept and that she used to go out of the room during the day to attend the call of nature and that the toilet/ washroom was common for all the tenants. She has further admitted that the families of the other tenants were also residing there and has State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 13 of 36 voluntarily added that all the tenants and their wives used to go out during the day. The prosecutrix has denied that lady members of the families of the other tenants used to stay during the day and were aware of her presence there and has voluntarily explained that when the ladies made inquiries about her, the family of the accused used to say that they are not aware of her background as their son had married her of his own. She has admitted that in the two rooms which were under the tenancy of the family of ChachaChachi of the accused, one room was occupied by the married son and his family whereas another room was occupied by the unmarried son whereas ChachaChachi of the accused used to sleep outside and has voluntarily explained that their daughter used to sleep with her Bhabhi. She has deposed that she was residing in the other room. She has denied that during this period she used to reside with the sister and Chachi of the accused and has voluntarily explained that they used to sleep outside. She has denied that since she had got married to the accused it was for this reason that the family of the ChachaChachi of the accused had obliged her and the accused and had given her one room for exclusive use.
(13) The prosecutrix has admitted that the affidavits Ex.PW10/DX1 and Ex.PW10/DX2 bear her signatures and thumb impressions at points A which were executed in Court at Jallandhar. She has deposed that she did not inform in the Court State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 14 of 36 including the Notary Public that the accused had forcibly brought her there and was marrying her under threat. She has admitted that she had made a call to her mother from Jallandhar informing her that she was already married the accused and there are no chances of her marrying anybody again. The prosecutrix has further admitted that she had asked her mother to tell the police not to trouble the family of the accused since she had voluntarily of her own got married to the accused. She admits that she knew Pintoo and has voluntarily explained that he is her neighbour staying next door. She has admitted that she made a call to Pintoo from Jallandhar informing him that she had already married to Rajesh and would come after threefour months and she was happily residing wherever she was. The prosecutrix has admitted that before she had eloped with the accused she had also gone to attend a marriage at her Mama's house. She has further admitted that she had made a call to the accused one day prior to her eloping with him.
(14) The Ld. Defence Counsel has sought permission to place on record the CD of the telephonic conversation of the prosecutrix with the accused prior to her elopement, to her mother and to her neighbour Pintoo during the period 27.4.2005 to 7.5.2012. The same is permitted to be taken on record. The CD is Ex.PW10/DX3. State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 15 of 36 (15) The prosecutrix has denied that she was in love with the accused and she had eloped with the accused of her own free will. She has further denied that she had married the accused being a major and in a position to take her decisions or that she was voluntarily residing with him as his wife during this period. She has further denied that the accused had made physical relations with her with her own consent and that she made a statement before the Ld. MM under the influence and tutoring of her family members due to which reason she refused to go with her father after her recovery and she was sent to Nari Niketan. She has admitted that she had given a history of eloping to the doctor and also refused her internal examination. She has denied the suggestion that she has deposed on the tutoring of her parents.
Medical Evidence:
(16) PW4 Dr. Madhuri has proved the handwriting and signatures of Dr. Garima on the MLC No. 671/12 as she had worked with her and has seen her while signing and writing during course of her official duties. The witness after seeing the MLC No. 671/12 of the prosecutrix 'A' female 16 years who was brought at the casualty of Bhagwan Mahavir hospital on 08.05.2012 at about 8:49 AM by W/Ct. Urmila for medical examination with alleged history of eloping without parental consent and she was medically examined at State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 16 of 36 the casualty of the hospital by Dr. Sheetal Yadav vide MLC Ex.PW4/A bearing the signatures of Dr. Sheetal Yadav at point A. The witness has deposed that in the local examination no external injuries was present on the body of the prosecutrix and she was referred to Gyane. department for further examination. (17) The witness has further deposed that in the Gyane.
Department, Dr. Garima had medically examined the prosecutrix 'A' and gave her observations from point X to X1 and it bears the signatures of Dr. Garima at point B. The witness has deposed that the patient was brought at the Gynae. department with alleged history of eloping with a boy without the consent of the parents for the purpose of marriage and sexual intercourse with husband 45 times after marriage with mutual consent. According to the MLC, in the local examination hymen was torn and no active bleeding and as per abdomen examination it was found soft. The witness has further deposed that the body of the prosecutrix was only inspected and no internal examination was conducted as patient refused for her internal examination. The witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 17 of 36 Police Witnesses:
(18) PW1 SI Jitender Singh has been examined by way of affidavit which is Ex.PW1/1 bearing his signatures at points A and B. The witness has relied upon documents i.e. FIR No. 135/12 copy of which is Ex.PW1/A (Original seen and returned) and endorsement on rukka which is Ex.PW1/B bearing his signatures at point A. The witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
(19) PW2 Ct. Rakesh has been examined by way of affidavit which is Ex.PW2/1 bearing his signatures at points A and B. He has relied upon documents i.e. Seizure memo Ex.PW2/A bearing his signatures at point A. The witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
(20) PW3 L/Ct. Urmila has tendered her examinationin chief by way of affidavit which is Ex.PW3/1 bearing her signatures at points A and B. According to the witness on 8.5.2012, took the prosecutrix to BM Hospital and after getting the prosecutrix medically examined also received the exhibits in sealed condition which she handed over to the IO. The witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 18 of 36
(21) PW7 SI Rajender Khatri has deposed that on 30.04.2012 she was posted at police station Rani Bagh and on that day at about 5:00 PM, Hari Narain Sharma had come to the police station and informed that his daughter was missing and he had suspicion that somebody had taken her away. According to the witness on the basis of the same she had recorded the statement of Hari Narain Sharma vide Ex.PW5/A and thereafter she made her endorsement on the same vide Ex.PW7/A bearing her signatures at point A and directed the duty officer to register an FIR and the further investigations of the case was handed over to ASI Sunita Dutta. In her cross examination by Ld. Defence Counsel, the witness has admitted that at the time she recorded the statement Hari Narain Sharma he had not tell the name of any person whom he had suspected.
(22) PW8 HC Rajpal has deposed that on 06.05.2012, he was posted at Police Station Rani Bagh and on that day he joined the investigations of the present case along with IO ASI Sunita Dutta. The witness has deposed that the IO had received information regarding the recovery of the girl at Jalandhar and hence he along with ASI Sunita Dutta went to Jalandhar on 07.05.2012 and reached at the police station and on the information of the complainant went to the house No. 173, Grover colony, Jalandhar, where they found the prosecutrix along with the accused and on the pointing out of the State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 19 of 36 complainant they recovered the prosecutrix. According to the witness, the IO thereafter prepared the site plan of the spot of recovery and recorded the statement of both the prosecutrix and the complainant, after which the accused was also interrogated and he was arrested vide memo Ex.PW5/B. The witness has deposed that he conducted the personal search of the accused vide memo Ex.PW5/C and thereafter they returned to Delhi. Witness has correctly identified the accused Rajesh Mehto in the court. (23) In his cross examination by Ld. Amicus curiae, the witness has deposed that only complainant, prosecutrix and accused were present when accused was arrested. The witness has deposed that they had not asked about the owner of that house in which prosecutrix and the accused were staying. The witness has admitted that the chacha of the accused resides in the said room with his family and has voluntarily added that at that time, the family of that chacha was not there. The witness has further admitted that the prosecutrix had informed that she had married to the accused but she did not tell the IO in his presence that she was happily residing with the accused with her own consent and wanted to stay with him. The witness has denied that the prosecutrix and the accused were already present in the police station as the father of the prosecutrix had already brought them to the police station from where the Punjab police had made a call to the Delhi police. He has further denied that State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 20 of 36 the arrest of the accused had already been affected in the police station itself and he had only gone to the spot along with the IO only to prepare the site plan. The witness has admitted that during the investigations the accused and his family cooperative and the accused made no attempt to resist or abscond and not resistance was made by him. Witness has admitted that when prosecutrix was recovered, she was wearing a sindoor and was in bridal and appeared married. He has further admitted that when the prosecutrix was recovered she appeared as she is seen in the photograph Ex.PW8/DX1 and has voluntarily explained that the only difference is that she was in suit at that time. He has denied that on account of the difference of caste and opposition by the family of the prosecutrix, they have connived with the complainant / father of the prosecutrix and falsely implicated the accused.
(24) PW9 SI Harjinder Rana has deposed that on 18.05.2012, she was posted at Police Station Rani Bagh and on that day further investigations of the present case was handed over to her and she was handed over the case file by MHC (R). The witness has deposed that after taking the order from the CWC, the ossification test of the prosecutrix was got conducted by her from BSA hospital, after which she collected the report EX PW 9/A. (Ossification report not disputed by the accused). Thereafter she prepared the charge sheet and filled the same in the court. The witness has not been cross State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 21 of 36 examined on behalf of the accused and the entire testimony has gone uncontroverted.
(25) PW11 W/SI Sunita Dutta has deposed that on 30.04.2012, she was posted at police station Rani Bagh and on that day further investigations of this case was marked to her and duty officer handed over the computerized copy of the FIR and original tehrir to her. The witness has deposed that on the same day she went to the house of the prosecutrix from and collected the school certificate showing her date of birth as 10.02.1997. The witness has further deposed that on 06.05.2012 she received a call from the father of the prosecutrix who informed her that his daughter/ prosecutrix and the boy who had taken her were present in Jalandhar. According to the witness, on the same day she along with HC Rajpal started for Jalandhar and reached Jalandhar on 07.05.2012 in the morning at around 10 AM and there they reached the police station Baba Khel Basti, Jalandhar where they made their arrival entry and thereafter they reached house No. 173, Grover colony, Jalandhar, the address which was informed to them by the father of the prosecutrix. The witness has deposed that here at the said house, the found the father of the prosecutrix, the accused and the prosecutrix and the father of the prosecutrix pointed out the accused to them on which she interrogated the complainant / father of the prosecutrix and the prosecutrix and recorded their statements. The witness has deposed State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 22 of 36 that she also interrogated the accused Rajesh Mehto (correctly identified by the witness) and recorded his disclosure statement but this Court observed that no disclosure statement was present on Judicial record. Thereafter witness has explained that she has mentioned about the disclosure in the CD itself and there was no separate disclosure statement.
(26) The witness has further deposed that she thereafter arrested the accused Rajesh Mehto vide memo Ex.PW5/B. She has further deposed that HC Rajpal conducted the personal search of the accused vide memo Ex.PW5/C. She had also prepared the site plan of the spot from where the prosecutrix was recovered which site plan is Ex.PW11/A and thereafter they returned to Delhi and took the prosecutrix to Bhagwan Mahavir Hospital, Pitampura where her medical examination was got conducted but the prosecutrix refused for internal examination. The witness has deposed that he accused was also got medically examined through Ct. Rakesh. She also collected the MLC of the prosecutrix and of the accused which are Ex.PW4/A and Ex.PX5 and she was also handed over exhibits by Ct. Rakesh and she prepared the seizure memo of the same vide Ex.PW2/A. According to the witness, both the prosecutrix and accused were thereafter produced in the court and the accused was sent to judicial custody and prosecutrix was produced before illaka magistrate for recording her statement U/s 164 Cr.PC which State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 23 of 36 statement Ex.PW10/A. (27) In her cross examination by Ld. Amicus Curiae for the accused, the witness has deposed that at the time when she went to the house of the prosecutrix on 30.04.2012, she had also interrogated the family members of the prosecutrix but they did not express their suspicion on anybody. According to the witness, she did not make any inquiries from the residents of the ground floor or from the neighbours regarding the case. She has deposed that between 30.04.2012 and 05.05.2012 she only got issued the hue and cry notices and took various steps to send them to various places. She has denied that the father of the prosecutrix had informed her that he was receiving telephone calls from his daughter informing him that she was married to the accused and that the police should not trouble the family of the accused. She has denied that she had gone to the house of the accused which is on the ground floor of the same premises where the family of the prosecutrix resides and she was questioning the aged mother of the accused, on which the prosecutrix had made a telephone call and informed their family to tell the police not to harass the mother of the accused. The witness has unable to give the details of the arrival entry. She has deposed that she did not join any personal from the Punjab Police when she went to the house No. 173. She has deposed that at the time when the accused was arrested at house No. 173, the chacha, chachi of the accused were State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 24 of 36 also present in the house. She has admitted that she had no search warrants. She has admitted that the room where the prosecutrix was found is situated on the back side. She has admitted that the accused did not try to run away and that the prosecutrix appeared to be married and did not appear to be under any pressure. She has admitted that the prosecutrix had informed her and her father that she was already married with the accused and was staying with him voluntarily and wanted to go with him. The witness has deposed that even after coming to Delhi, the prosecutrix was not ready and willing to go with her father and wanted to go with the accused and due to this reason she was produced before the CWC and was sent to the Nari Niketan. The witness has denied that the prosecutrix and the accused were already present in the police station as the father of the prosecutrix had already brought them to the police station from where the Punjab police had made a call to the Delhi police. The witness has denied that all documentation was done while sitting in the police station Basti Baba Khel and she had only gone to the spot along with the HC Rajpal only to prepare the site plan. She has admitted that during the investigations the accused and his family cooperative and the accused made no attempt to resist or abscond and not resistance was made by him. She has further admitted that when prosecutrix State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 25 of 36 was recovered, she was wearing a sindoor and was in bridal and appeared married. She has also admitted that the prosecutrix was recovered she appeared as she is seen in the photograph Ex.PW8/DX1 but she was wearing a suit at that time. The witness has also admitted that on account of the difference of caste and opposition by the family of the prosecutrix the father of the prosecutrix was insistent upon action against the accused but it is wrong to suggest that they have connived with the complainant / father of the prosecutrix and falsely implicated the accused and has voluntarily explained that the prosecutrix was a minor at the time of the incident as told to them.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
(28) After completing the prosecution evidence, statement of accused was recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material was put to him which he has denied. However, he has not examined any witness in defence. According to him he is innocent and has been falsely implicated in the present case. He has stated that in fact the prosecutrix was having a love affair with him but her parents were not accepting this relationship being intercaste. State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 26 of 36
FINDINGS:
(29) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Amicus Curiae for the accused. I have also considered the testimonies of various witnesses examined by the prosecution. My findings are as under:
(30) Firstly, in so far as the identity of the accused is concerned, the same is not disputed as both the accused and the prosecutrix used to reside in the same premises in ground floor and first floor. Even otherwise the accused has been correctly identified in the court by the prosecutrix and her father. I hold that the identity of the accused Rajesh Mehto stands established.
(31) Secondly, in so far as the age of the prosecutrix is concerned, as per the school record, her date of birth is mentioned as 10.2.1997 showing that at the time of incident she was aged about 15 years. The father of the prosecutrix namely Hari Narain Sharma (PW5) is unable to give the exact date of birth of the prosecutrix and submits that she was born at home at Madhubani District, Bihar and her correct date of birth was 12.10.1995 but he had given her wrong date of birth as 10.2.1997 in her school record on the advise of his family members for the purposes of providing her the benefit. Even the prosecutrix has given her age as 17 years and I therefore hold that on the date of incident she had already attained the age of consent. State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 27 of 36
(32) Thirdly, in so far as the medical evidence is concerned, it is evident from the record that at the time of the medical examination of the prosecutrix, no external injury were noticed. She had herself told the the history to the doctor of eloping with a boy without consent of her parents for the purposes of marriage. She had also given the history that the accused had married with her in Punjab and thereafter they were living as husband and wife and during that period they have established sexual relations.
(33) Fourthly, it is admitted by the Investigating Officer that when the prosecutrix was recovered, she had refused to go with her parents and it was for this reason that she was sent to Nirmal Chhaya since her parents claimed that she was a minor at that time. (34) Fifthly, the entire case of the prosecution revolves around the testimony of the prosecutrix who has initially supported the case of the prosecution and has deposed that the accused had allured her and taken her to Jallandhar, Punjab, and put Sindoor on her forehead and forcibly got married with her and thereafter he forcibly made physical relations with her without her consent, but in the cross examination she has given the correct facts to the court. She has admitted that she had gone along with the accused voluntarily without any threats. She has further admitted that she had even gone to the court at Jallandhar to execute an affidavit for the purposes of marriage and also made a call to her mother from State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 28 of 36 Jallandhar informing her that she was married with the accused and there was no chance to marrying anybody else again. The prosecutrix has also admitted that she had also made a telephone call from Jallandhar to her neighbour Pintoo informing him that she had already married to Rajesh and was happily residing with him. She has further admitted that she had eloped with the accused Rajesh and one day prior to her eloping with him, she had made a telephone call to the accused. The relevant portion of her cross examination is reproduced as under:
"It is correct that the affidavits Ex.PW10/DX1 and Ex.PW10/DX2 bear my signatures and thumb impressions at points A which were executed in Courtst at Jallandhar. I did not inform in the Court including the Notary Public that the accused had forcibly brought me there and was marrying me under threat. It is correct that I had made a call to my mother from Jallandhar informing her that I was already married the accused and there are no chances of my marrying anybody again. It is correct that I had asked my mother to tell the police not to trouble the family of the accused since I had voluntarily of my own State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 29 of 36 got married to the accused. I know Pintoo.
Vol. He is my neighbour staying next door. It is also correct that I made a call to Pintoo from Jallandhar informing him that I had already married to Rajesh and would come after threefour months and I am happily residing wherever I was. It is correct that before I had eloped with the accused I had also gone to attend a marriage at my Mama's house. It is correct that from there I had made a call to the accused one day prior to my eloping with him.
At this stage, the Ld. Defence Counsel has sought permission to place on record the CD of the telphonic conversation of the prosecutrix with the accused prior to her elopement, to her mother and to her neighbour Pintoo during the period 27.4.2005 to 7.5.2012. The same is permitted to be taken on record. The CD is Ex.PW10/DX3."
(35) Sixthly, it is evident that taking the testimony of the prosecutrix in entirety, it is writ large that this story put forward by her of the accused forcibly taken her against her consent, does not State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 30 of 36 appears to be probably, truthful an credible. She had ample opportunity to raise an alarm or to make complaint against the accused during the period she stayed with the accused, which she did not do.
(36) Lastly, the accused has placed on record the CD of telephone conversation which had taken place between him and the prosecutrix before their elopement and also the calls which the prosecutrix made to her mother from Jallandhar which call recordings have been taken from the mobile phone of the accused which mobile phone was having a recording system. The said CD is Ex.PW10/DX3 has also been placed on record which the prosecutrix has duly admitted. This proves that the prosecutrix was at the verge of attaining majority had of her own will and consent gone with the accused (who himself was also hardly aged 21 years at that time). (37) This being the background and applying the principles of law laid down in the cases of Krishan Kumar Malik Vs. State of Haryana, reported in 2011 AIAP (Criminal) 604, Supreme Court and S. Varadarajan Vs. State of Madras, AIR 1965 Supreme Court 942 (V 52 C 150) and giving the age in reprieve, I hereby hold that the prosecution has miserable failed to prove and substantiate the allegations against the accused that he had forcibly compelled and taken the prosecutrix without her consent or at allured or enticed her to accompany him for the purposes of marriage or that thereafter he State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 31 of 36 made forcible physical relations with her against her consent. (38) In view of the above, the accused Rajesh Mehto is hereby acquitted in so far as the allegations under Section 366 and 376 Indian Penal Code are concerned. However, since at the time of the incident the prosecutrix was minor (below 16 years of age) therefore technically the accused Rajesh Mehto has committed the offence punishable under Section 363 Indian Penal Code for which he is hereby held guilty and accordingly convicted.
(39) Be listed for arguments on sentence at 2:00 PM.
Announced in the open court (Dr. KAMINI LAU) Dated: 25.10.2012 ASJ (NW)II: ROHINI State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 32 of 36 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 60/2012 Unique Case ID: 02404R0185712012 State Vs. Rajesh Mehto S/o Sh. Mahavir Mehto, R/o House No. 140, Pitampura Village, Delhi. (Convicted) FIR No. : 135/2012 Police Station : Rani Bagh Under Section : 363/366/376 Indian Penal Code Date of Judgment : 25.10.2012 Arguments heard on : 22.10.2012 Date of Sentence : 25.10.2012 APPEARANCE: Present: Sh. Sukhbir Singh, Addl. Public Prosecutor for the State. Convict Rajesh Mehto in Judicial Custody with
Sh.Shivender Vishwas, Advocate / Amicus Curiae. ORDER ON SENTENCE:
Vide my detailed judgment of even date, the accused Rajesh Mehto has been held guilty of the offence under Section 363 Indian Penal Code. However, he has been acquitted of the charges under Section 366 and 376 Indian Penal Code.
State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 33 of 36
As per the allegations, on 27.04.2012 at about 7:00 AM at House No. 140, Village Pitampura, Delhi, the accused Rajesh Mehto, had kidnapped the minor girl 'A' (name of the girl is withheld being the case under Section 376 IPC), from the lawful guardianship of her parents with intention that she may be forced or seduced to illicit intercourse. It is further alleged that between 27.4.2012 to 7.5.2012 the accused Rajesh Mehto committed rape upon the prosecutrix without her consent at Jallandhar, Punjab.
It is evident from the record that the present case under Section 363/366/376 Indian Penal Code was registered on the basis of the complaint given by the father of the prosecutrix namely Hari Narain Sharma to the extent that on 27.4.2012 at about 7:00 AM his daughter 'A', aged about 16 to 17 years, (Date of Birth 12.10.1995) studying in Class 10th at Sarvodaya School, had gone to her school and did not return home thereafter. During investigations, the prosecutrix 'A' was got recovered from Grover Colony, Jallandhar, Punjab, along with the accused.
On the basis of the testimonies of the various witnesses particularly the testimonies of the prosecutrix 'A', her father Hari Narain Sharma and the medical and school record of the prosecutrix, it is writ large that the allegations under Section 366 and 376 Indian Penal Code do not stand established beyond reasonable doubt for which benefit of doubt has been given to the accused Rajesh Mehto. State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 34 of 36 However, since technically the prosecutrix was a minor at the time of incident being below the age of 18 years of age and the accused had taken her out of the lawful guardianship of her parents without their permission, he has been held guilty of the offence under Section 363 Indian Penal Code and accordingly convicted.
Heard arguments on the point of sentence. The convict Rajesh Mehto is a young boy 21 years of age, unmarried, totally illiterate and was doing private job for his livelihood. He has a family comprising of father, mother, two brothers and one sister. He is first time offender and has no criminal background and has already remained in judicial custody for a period of Five Months and Eighteen Days.
Ld. Amicus Curiae for the convict has vehemently argued that the a lenient view be taken against the convict keeping in view his young age and the fact that he is not a habitual criminal. He has argued that the convict is a helping hand of his family and any stern view would be prejudicial not only to the convict but also to his entire family. The Ld. Addl. PP for the State on the other had has argued that keeping in view the nature of offence, a strict punishment may be awarded to the convict.
I have considered the rival contentions. The convict is a young boy of 21 years with no criminal background. This is in fact an unfortunate case where the love affair between the convict and the State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 35 of 36 minor prosecutrix has gone wrong. Any harsh view would ruin the future of the convict. This being the background, I hereby hold that the interest of justice would suffice if the convict Rajesh Mehto is sentenced to Rigorous Imprisonment for the period already undergone i.e. Five months & Eighteen days and fine to the tune of Rs.1,000/ for the offence under Section 363 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 5 days.
Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial as per rules.
The convict has been informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached along with his jail warrants. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 25.10.2012 ASJ (NW)II: ROHINI
State Vs. Rajesh Mehto, FIR No. 135/12, PS Rani Bagh Page 36 of 36