Delhi District Court
State vs . Sushil Kumar on 5 August, 2013
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 49/11)
Unique ID case No. 02404R0198972010
State Vs. Sushil Kumar
FIR No. : 151/10
U/s : 363/366/376 IPC
P.S. : Mahendra Park
State Vs. Sushil Kumar
s/o Sh. Shiv Ram
r/o Village Lachhipur,
P.S. Khiroh, District Rai Bareli,
U.P.
Date of institution of case 17.08.2010
Date on which, judgment has been reserved 05.08.2013
Date of pronouncement of judgment 05.08.2013
JUDGMENT:
1 The case of the prosecution is that on 19.06.2010 on receiving information about DD No.31A dated 19.06.2010 i.e. Ex.PW1/A, PW13 SI Ina Kumari reached PS Mahendra Park where she met prosecutrix, her father Ganga Prasad and the accused Sushil Kumar, who was under the custody of Ct. Raju. The PW13 SI Ina Kumari made inquiry from the prosecutrix. In the meantime, Smt. Kalpana from NGO Sampurna also S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 1/36 2 reached in the PS and she also made inquiry from the prosecutrix. Thereafter PW13 SI Ina Kumari recorded the statement of prosecutrix vide Ex.PW2/A. She also directed Ct. Raju and Ct. Sunil to get the medical examination of accused Sushil Kumar conducted at BJRM Hospital while she herself took the prosecutrix to BJRM Hospital for her medical examination. In the hospital, the medical examination of prosecutrix was conducted vide MLC Ex.PW3/A. After examination of the prosecutrix, the concerned doctor handed over a sexual assault kit, sealed with the seal of 'BJRM Hospital', along with sample seal which was seized by PW13 vide seizure memo Ex.PW9/A, in presence of L/Ct. Meenal, who in the meantime also reached hospital. The Ct. Raju handed over two sealed parcels, containing samples taken from accused by the concerned doctor, sealed with the seal of BJRM Hospital along with sample seal, which were seized by the IO vide seizure memo Ex.PW12/A. Thereafter PW13 SI Ina Kumari prepared rukka Ex.PW13/A and handed over the same to Ct. Sunil Kumar, who left the hospital with rukka for registration of case FIR. In the meantime, PW13 SI Ina Kumari went along with the prosecutrix, her father and W/Ct. Meenal to the house at J1969, Jahangir Puri, where the prosecutrix was kept by the accused, and at the instance of prosecutrix, she prepared site plan Ex.PW13/B. Thereafter they also went to B27, Ramgarh, i.e. the other house where prosecutrix had been kept by the accused. The Ct. Sunil Kumar also reached the said place and handed over original rukka and computerized copy of FIR i.e. Ex.PW1/B to IO. The PW13 prepared site plan vide Ex.PW13/C of B27, Ramgarh, at the instance of prosecutrix. Thereafter prosecutrix was brought back to the PS Mahendra Park. At the PS, accused Sushil Kumar was interrogated by PW13 SI Ina Kumari and during the course of said interrogation, accused Sushil Kumar made disclosure statement Ex.PW13/D. The accused was arrested vide arrest memo S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 2/36 3 Ex.PW2/B and was personally searched vide memo Ex.PW13/E. 2 On the same day, accused Sushil Kumar led the Police party to the first floor of House No. J1969, Jahangir Puri, and pointed out the room where he had kept the prosecutrix and committed rape upon her. Thereafter accused Sushil Kumar led the Police party to house No. B27, Ramgarh and pointed out the room, where he had kept the prosecutrix. The IO prepared pointing out memo Ex.PW13/F at the instance of accused.
3 On 20.06.2010, IO moved an application before the Court concerned for recording of statement of prosecutrix u/s.164 CrPC and her statement Ex.PW2/C was finally recorded on 22.06.2010. The PW13 obtained copy of the said statement by moving an application in this regard.
4 On 21.06.2010 IO also got conducted the ossification test of prosecutrix vide Ex.PW13/H. 5 During the course of further investigations, IO got the exhibits of the case sent to FSL through Ct. Sanjay vide RC No.36/21 on 13.07.2010. IO also received the documents of age of prosecutrix i.e. certificate from Veer Haqiqat Public High School, Goushala Road, Ludhiana, which was sent through post by father of prosecutrix. 6 After completion of investigations, charge sheet was prepared and filed in the Court of learned MM through SHO concerned.
S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 3/36
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7 Upon committal of this case to the court of Sessions, charge for the offences
under Sections 363/366/376 IPC were framed against the accused on 11.11.2010 by the learned Predecessor of this Court. However, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence. 8 In order to prove its case prosecution has examined 18 witnesses. Prosecutrix, her father and other public witnesses 9 The PW2, is the prosecutrix in the present case. Her testimony shall be discussed at length in the following paragraphs of the judgment. 10 The PW10, Ganga Prasad, father of the prosecutrix. He deposed that he had been residing at Ludhiana since 1993 and was doing job of Palledari and that he had given one room of his house on rent to accused Sushil at monthly rent of Rs.500/ per month. He further deposed that on 09.06.2010 he had sent his wife, his daughter (prosecutrix) and two sons to Rai Baleri from Ludhiana in a train and that when he took his family to railway station at Ludhiana, he met accused Sushil and on asking of PW10, accused Sushil told him that he had come to see off his aunty and that after dropping his family, PW10 returned back to his home and that after 2 - 2 ½ hours he received a telephone call from his wife that prosecutrix had gone missing from the train. The PW10 then deposed that he tried to search for prosecutrix but there was no clue of her and that on 16.06.2010, he received a telephone call from prosecutrix, who told him that S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 4/36 5 she was in Delhi with accused Sushil Kumar. Thereafter PW10 made a call on that number and came to know that the said number was of a PCO situated in Jahangir Puri in Delhi and that on the next day i.e. 17.06.2010, he along with his brother in law Ram Vilas and his nephew (Bhanja) Radhey Shyam came to Delhi and met the owner of said PCO, who pointed out the room where prosecutrix and accused Sushil were residing but at that time, nobody was found present in the house. The PW10 then deposed that he went to PS Mahendra Park and sought help from police and that one police official accompanied him from PS Mahendra Park to the house pointed out by the PCO Wala and that prosecutrix and accused Sushil were found there and that they both were apprehended and brought to PS Mahendra Park and DD No.31A was recorded in this regard. Thereafter prosecutrix was got medically examined at BJRM Hospital. The accused was arrested by the Police. After 2 3 days statement of prosecutrix was got recorded u/s.164 CrPC and she was handed over in custody of PW10. The PW10 identified accused in the court. As regards the age of prosecutrix, the PW10 deposed that she was aged about 13 ½ years at the time of incident and that he had handed over certificate Ex.PW4/C, obtained from Veer Haquiqat Public High School, Ludhiana, regarding the age of his daughter to IO.
11 During his crossexamination, PW10 deposed that he was married in the year 1993 and that he had two sons and two daughters and that prosecutrix was his eldest child and that she was born three years after his marriage, at home. The PW10 further deposed that at the time of admission of prosecutrix in Veer haquiqat Public High School, he had not submitted any certificate regarding her age, however, he had submitted school leaving certificate from the Shivalik Public S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 5/36 6 school from where she had passed Vth class and that at the time of admission of prosecutrix in Shivalik Public School, he had submitted Janampatri (affidavit) from local Court and that he was not conversant with Punjabi language. The PW10 denied that prosecutrix was more than 18 years of age on the date of the alleged incident. During his further crossexamination, PW10 deposed that till such time, accused remained as his tenant, prosecutrix never complained against any harassment or ill treatment by him. He also deposed that when he received phone call from his wife, he got suspicious on his tenant. He admitted that he did not lodge any complaint with the local police regarding missing of the prosecutrix and that his wife had also not lodged any complaint with the railway police regarding missing of the prosecutrix from the train. The PW10 also admitted that they had not given the railway ticket, by which his family was traveling, to the police. He, however, denied that the prosecutrix had left his house of her own free will without any enticement from the accused or that he had introduced a false story to implicate the accused. 12 During the further crossexamination, PW10 was confronted with his statement u/s.161 CrPC i.e. Ex.PW10/DA made to the police and it was brought out that he had not disclosed to the police that when he came to railway station to see off his family, accused Sushil met him there and told him that he (accused) had come there to see off his aunty and that he had received phone call from his wife after 2 2 & ½ hours and that on 16.06.2010 his daughter told him on telephone that she was in Delhi with accused Sushil and that he had called back to PCO, from where his daughter had called, and found out that the same was in Jahangir Puri and that on 17.06.2010 he had come to Delhi along with his nephew and brotherinlaw and that when the owner of the said S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 6/36 7 PCO pointed out the room where his daughter along with accused Sushil were residing, no one was found present and that thereafter he went to PS Mahendra Park and sought Police assistance or that one Police official accompanied them to the house pointed out by PCO owner. He further deposed that when he received first call on 16.06.2010 from his daughter, she did not inform him that any force had been used upon her by accused Sushil or that he had enticed her to accompany him to Delhi. He admitted that his daughter had not told him about her whereabouts on 16.06.2010 and that he came to know that she was at Jahangir Puri from the PCO owner. He denied the suggestion that accused had not commit any wrongful act on the person of prosecutrix without her consent or that she was happily residing with the accused Sushil at Jahangir Puri. He further stated that nothing was recovered by the Police from the room where accused and prosecutrix was staying. He denied the suggestion that his daughter was more than 18 years on the alleged date of incident and that he had falsely got recorded the date of birth of his daughter in her statement before the Police, before learned MM and in the MLC and that the prosecutrix had made complaint against accused at his instance and as per his wishes and that he wanted to get his daughter forcibly married against her wishes and in furtherance of that he had sent his daughter along with his wife to Rai Bareli for her marriage and that his daughter left his house at Ludhiana with accused Sushil in search of better opportunities and to earn her livelihood at Delhi. 13 The PW5, Smt. Balesh Devi, is the landlady of House No.1959, Jahangir Puri, Delhi. She deposed that on 16.06.2010, it was Wednesday and that on that day, accused Sushil came with one Chintu and prosecutrix and asked for a room on rent and that accused Sushil told her that prosecutrix is her cousin sister and she gave a room on S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 7/36 8 rent @ Rs.1,000/ per month to accused Sushil and that accused gave her Rs.500/ in advance and told her that he will pay Rs.500/, later on, along with copy of his voter I Card. She further deposed that she had given the room to accused at the instance of Chintu and thereafter she left for her work and that she did not know that accused had enticed and kidnapped the prosecutrix and that later on police had come and made inquiries from her.
14 During her crossexamination, she deposed that she was having 3 - 4 rooms in her house and had given the said rooms on rent and that one room was lying vacant at that time, which was given by her to the accused through Chintu. She admitted that in other room tenants were residing with their families and that she was also residing in the front portion of house. The PW5 could not state if the accused used to work in a Tomato Ketchup factory and explained the same by stating that she was working as baildar in Delhi Jal Board at that time. She denied the suggestion that accused and prosecutrix were residing in her room as a husband and wife. She volunteered to state that both accused and prosecutrix told her that they were brother and sister. 15 The PW6, Suresh, was residing at H.No.195960, J Block, Jahangir Puri, Delhi, and he deposed that on 16.06.2010, one Tinku brought his relative. He improved his statement to state that Chintu told her that the boy and girl were brother and sister and that they will stay for 12 days and that the said boy and girl stayed with him for 23 days and thereafter they left. He expressed his inability to identify the said boy as he had not seen him. Yet again the witness changed his version and stated that Chintu had not talked with him as he had gone to his village to attend a marriage. He also deposed S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 8/36 9 that Police had come after some days and made inquiries from him. 16 As the witness failed to support the prosecution case, he was cross examined by learned Additional PP. During his crossexamination PW6 termed it correct that his statement was recorded on 20/06/10 and that on 11/06/10, one boy and girl came to him as they wanted to meet Chintu and that PW6 called Chintu who told him that said boy and girl were his brother and sister in relation. He further termed it correct that due to this reason, he did not make any inquiry from them and that he was not knowing that the said boy had kidnapped the girl accompanying him. The PW6 also termed it correct that both of them stayed there till 16/06/10 and thereafter they shifted to some other rented accommodation. The PW6 failed to identify accused despite specific pointing out by learned Additional PP.
17 The PW7, Jawala Mehta, was residing at H.No. A1959, Delhi, deposed that on 11/06/10, accused Sushil came to him with Chintu, who told PW7 that accused Sushil was his relative and that he had come with his sister and requested PW7 to allow them to stay with him for four days in Delhi and assured PW7 that thereafter they would go back. The PW7 further deposed that accused Sushil and his sister Jyoti resided in his room for four days and that PW7 was having night duty and came back after about three days and that after about four days both accused Sushil and his sister Jyoti left and that after about 23 days police came to room of PW7 in his absence and that PW7 was told by his landlady that accused Sushil had brought Jyoti by kidnapping her.
S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 9/36
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18 During his crossexamination PW7 deposed that he was working in factory
of Jyotish Mehta and since last about 56 years, and that his duty hours were from 9.00 am to 9.00 pm. From further crossexamination of PW7, it is brought out that in his statement Ex.PW7/A, u/s.161 CrPC, he had not mentioned that he was on night duty and the number of days were also not mentioned. The PW7 termed it correct that he was residing as a tenant in the room with his family and that the landlady was also residing in the same house on the ground floor with her family and that he did not obtain permission from his landlady before allowing accused and prosecutrix to stay in his room. The PW7 also deposed that previously he had not allow any person to stay in his room. He further stated that there were two room on the first floor of the house and in the second room some other person was residing. He termed it correct that J block is situated within thickly populated area and that his room was visible from the front side of the house. He then improved upon his statement and said, there was a lake in front of the house. The PW7 denied that he had seen accused Sushil for the first time in the PS or that accused had not stayed alongwith Jyoti with him (PW7) from the period from 11/06/10 to 16/06/10 or that Chintu had not introduced them as brother and sister. 19 The PW8, Sh. Tinku @ Chintu, was also residing as tenant in House No. 195960, J Block, Jahangir Puri, Delhi. He deposed that he was a driver by profession and that accused Sushil was known to him as he was cleaner on the vehicle driven by father of PW8. On 11.06.2010, accused Sushil came to PW8 along with a girl and he told PW8 that the said girl was his cousin (bua ki ladki) and that he had come to Delhi for some job and requested PW8 to help him to find an S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 10/36 11 accommodation/room till such time that he got a job. The PW8 further deposed that as he was residing on the third floor, he requested one Jawala Singh, who was residing at first floor in the same building, to accommodate accused Sushil with him for some days and that said Jawala Singh permitted Sushil and the said girl to reside with him in his room and that on 16.06.2010, PW8 helped Sushil to find a separate room in Ram Garh on a monthly rent of Rs. 1,000/ and thereafter, PW8 proceeded with his vehicle for trip to Lukhnow and when, PW8 returned back, he came to know that Sushil had been put behind bars after some quarrel. The PW8 stated that he did not know what the said quarrel was about and that he also came to know that the girl, who was stated to be cousin of Sushil, had returned back to her home. 20 During his crossexamination by ld. Addl. PP PW8 denied that he had come to know that accused Sushil had enticed away the girl, whom he had introduced to PW8 as his cousin.
21 During his crossexamination by learned defence counsel, PW8 deposed that he knew Sushil since 5/6 years prior to the incident and that Sushil had never stayed with PW8 in his room on sharing basis, at Delhi. The PW8 volunteered to state that he had stayed with father of PW8 for about 2/3 years. He also deposed that during the period, when Sushil and the girl accompanying him stayed in the building where PW8 was staying, neither Sushil nor the said girl went for work and that Sushil accompanied PW8 only on one day on vehicle of PW8. The PW8 further deposed that he knew about the parents and family of Sushil and the place where they were residing and that he never saw Sushil and the girl quarreling with each other during the S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 11/36 12 period, they stayed in building of PW8. The PW8 then deposed that he returned back from Lukhnow after about 5/6 days and that he knew that the girl accompanying Sushil had come with him willingly, however, he could not state if she was not related to him. The PW8 denied that he knew that the girl was not the daughter of Sushil's bua. Doctor witnesses 22 The PW11, Dr. Gopal Krishna, deposed that on 19.06.2010 patient / prosecutrix d/o Ganga Prasad, aged about 13 ½ years, female, was brought by IO PW13 W/SI Ina and her father Ganga Prasad and was examined by Dr. Pradeep Kumar, the then JR, under his supervision vide MLC No.11152 and that on examination, no fresh external injuries were seen on the patient and that thereafter the patient was referred to SR Gynae. He proved the said MLC as Ex.PW3/A. He also identified the handwriting and signatures of Dr. Pradeep Kumar, the then JR, on the MLC Ex.PW3/A. 23 The PW3, Dr. Mamta, had conducted gynecological examination of the prosecutrix vide MLC Ex.PW3/A and deposed that on local examination, no bruising, no laceration, no bleeding from labia or external genetalia was seen. Further her hymen was found torn and admitted two fingers easily. No active bleeding was seen. She also deposed about taking of samples from the prosecutrix, sealing them and handing them over to the IO. She further deposed that on 23.07.2010 her opinion was taken and she opined that possibility of sexual assault could not be ruled out. She proved the said opinion given by her on MLC Ex.PW3/A at point "X".
S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 12/36
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24 The PW14, Dr. Neeraj Choudhary, was deputed by MS BJRM Hospital to
depose in place of Dr. Gopal Krishna and Dr. Anil, SR (Surgery), who had examined accused Sushil Kumar on 19.06.2010 vide MLC No.11417/10 and proved the said MLC as Ex.PW14/A. He further deposed that as per endorsement made by Dr. Anil on the MLC Ex.PW14/A, there was nothing suggestive that the accused was incapable of doing sexual assault.
25 The PW15, Dr. Shipra Rampal, had given opinion regarding the age of prosecutrix. She deposed that on 21.06.2010 she examined Xray plates of patient Jyoti, female, for determination of her bone age and gave her opinion that estimated bone age of prosecutrix was between 16 to 17 years. She proved her detailed report in this regard is Ex.PW15/A. A specific court question was asked from PW15 if it was possible to give further margin on lower side while computing the age of the prosecutrix as in the present case the date of commission of offence was 09.06.2010 while the Xray plates of the prosecutrix were examined by PW15 on 21.06.2010. The PW15 replied stating that six months margin on either side i.e. the opined age of 16 to 17 years, could be given while computing the age of the prosecutrix.
Police witnesses 26 The PW1, HC Suresh, was posted as duty officer at PS Mahendra Park on 19.06.2010. He deposed that on that day at about 5:15 pm, PW10 Ganga Prasad along with Ram Vilas came to PS and got recorded DD No.31A in respect of missing of prosecutrix from Ludhiana. The complainant further stated that prosecutrix was brought S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 13/36 14 to Delhi by accused, his tenant and kept her at J Block, Jahangir Puri, in a room. The PW1 then deposed that on the basis of said information, he recorded DD No.31A and handed over the same to PSI Ina for further inquiry and that she left the PS with the complainant for inquiry. The PW1 also proved the certified copy of DD No.31A as Ex.PW1/A. 27 The PW1 further deposed that on the same day at about 10:15 pm, on receipt of rukka through Ct. Sunil sent by IO PW13 SI Ina Kumari, he got recorded the FIR in the present case through computer operator. He proved the computer generated copy of FIR as Ex. PW1/B. 28 The PW13, SI Ina Kumari, is the first IO of the case. She deposed that on 19.06.2010, she received an information about DD No.31A dated 19.06.2010 through Duty Officer of PS Mahendra Park and that after receiving the abovesaid information, she went to PS Mahendra Park where Duty Officer handed over copy of DD No.31A, Ex.PW1/A, to her and in the PS, prosecutrix, her father Ganga Prasad and accused Sushil Kumar, who was under the custody of Ct. Raju, met her. She further deposed that she made inquiry from the prosecutrix and that in the meantime, Smt. Kalpana, NGO (Sampurna) also reached in the PS and she also made inquiry from the prosecutrix and that thereafter PW13 recorded the statement of prosecutrix vide Ex.PW2/A. She then deposed that she directed Ct. Raju and Ct. Sunil to get the medical examination of accused Sushil Kumar conducted at BJRM Hospital and that accordingly, they took the accused to BJRM Hospital and that she also took the prosecutrix to BJRM Hospital where the medical examination of prosecutrix was got conducted by her vide MLC S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 14/36 15 Ex.PW3/A and that Lady Ct. Meenal also reached at the hospital as PW13 had called her through Duty Officer to reach at the hospital and that doctor, who examined the prosecutrix, handed over sexual assault kit sealed with the seal of 'BJRM Hospital' along with sample seal to PW13, who took the same into possession vide seizure memo Ex.PW9/A and that Ct. Raju also handed over two parcels sealed with the seal of BJRM Hospital along with sample seal to her and she took the same into possession vide seizure memo Ex.PW12/A. She further deposed that she prepared rukka Ex.PW13/A and handed over the same to Ct. Sunil Kumar, who left the hospital with rukka for registration of case FIR and that thereafter she along with the prosecutrix, her father and W/Ct. Meenal went to the spot i.e. J1969, Jahangir Puri, where the prosecutrix was kept by the accused, and at the instance of prosecutrix, PW13 prepared site plan Ex.PW13/B and that thereafter they went to B27, Ramgarh, where the prosecutrix was kept by the accused and that in the meantime, Ct. Sunil Kumar also reached there and he handed over original rukka and computerized copy of FIR Ex.PW1/B to PW13. She further deposed that she prepared site plan Ex.PW13/C of the said place i.e. B27 at the instance of prosecutrix and that thereafter they came back to the PS Mahendra Park, where accused Sushil Kumar was in custody of Ct. Raju, and that accused was interrogated by PW13 and that during the course of interrogation, accused Sushil Kumar made disclosure statement Ex.PW13/D and that thereafter accused Sushil Kumar was arrested vide arrest memo Ex.PW2/B and was personally searched vide memo Ex.PW13/E and that PW13 recorded the statement of Ganga Prasad, father of prosecutrix u/s.161 CrPC and also recorded the supplementary statement of prosecutrix u/s.161 CrPC. The PW13 further deposed that thereafter accused Sushil Kumar led the Police party to J1969, Jahangir Puri, at first floor and he pointed out the room on S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 15/36 16 first floor where he had kept the prosecutrix and committed rape upon her and that accused Sushil Kumar also led the Police party at B27, Ramgarh and pointed out the room, where he had kept the prosecutrix and that PW13 prepared pointing out memo Ex.PW13/F in this regard and that thereafter they came back to PS Mahendra Park and that accused Sushil Kumar was put in the lock up of PS Shalimar Bagh and that PW13 recorded the statements of Ct. Sunil Kumar and Ct. Raju and also deposited the exhibits with MHCM.
29 The PW13 further deposed that she recorded the statement of Ct. Meenal in the morning of 20.06.2010 and that accused Sushil Kumar was produced before the Court concerned on 20.06.2010 where he was remanded to JC and that prosecutrix was also produced before the Court concerned for getting her statement u/s.164 CrPC recorded and that PW13 moved an application Ex.PW13/G before the Court concerned in this regard and that the date i.e. 22.06.2010 was fixed for recording of statement of prosecutrix and that thereafter the prosecutrix was released to her father. She further deposed that she recorded the statements of one Chintu friend of accused Sushil ; Jawala Mehta tenant at house No. J1969, Jahangir Puri, and Smt. Suresh owner of House No. J1959 on 20.06.2010 and that she had also recorded the statement of Smt. Balesh Devi, owner of House No. B27, Ramgarh.
30 The PW13 further deposed that on 21.06.2010 she got conducted the ossification test of prosecutrix vide Ex.PW13/H and proved her signatures as recipient at point "A" on the front side of Ex.PW13/H. S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 16/36 17 31 The PW13 further deposed that on 22.06.2010 the statement of prosecutrix Ex.PW2/C was recorded by the learned MM and she moved an application for seeking of copy of proceedings u/s.164 CrPC and that the copy of the same was handed over to her. The PW13 further deposed that the exhibits were sent to FSL through Ct. Sanjay vide RC No.36/21 on 13.07.2010 and that she recorded the statement of MHCM and Ct. Sanjay in this regard and that she had also received the documents i.e. certificate Ex.PW4/C regarding date of birth of prosecutrix from Veer Haqiqat Public High School, Goushala Road, Ludhiana ; copy of admission form Ex.PW4/A ; affidavit in Gurmukhi langugage (punjabi) Ex.PW4/B through post and that said documents were sent by father of prosecutrix. The PW13 further deposed that after completion of investigations, challan was presented before the Court concerned and that thereafter she went on a long leave and during that period, SHO Inspr. Jawahar Singh collected the FSL report from MHCM and filed the same in the Court. The PW13 proved FSL reports filed by the SHO Inspr. Jawahar Singh in the Court, as Ex.PW13/I and Ex.PW13/J respectively. 32 During her crossexamination, PW13 deposed that DD No. 31 A was not recorded in her presence and that she had received copy of the same, when she was called from PS Shalimar Bagh, where she was posted, to PS Mahindra park. She termed it correct that she did not obtain the signatures of prosecutrix on the site plan Ex. PW13/B (of Jahangir Puri) and site plan Ex. PW13/C (of Ram Garh). She then deposed that the house no. J1959 at Jahangir Puri was a three storeyed house but she was not aware if there were 10/12 rooms in the said house or if the said rooms had been rented out to different tenants or if the walls of the said rooms were adjoining each other. The PW13 admitted that she did not inquire from the other persons residing on the first S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 17/36 18 floor of House no. J1959, Jahangir Puri, if they had heard sounds of beatings or of prosecutrix crying or prosecutrix having asked them for help. She termed it correct that she did not seize any articles of bedding i.e. gadda etc. or utensils etc. from the house at Ram Garh or House at Jahangir Puri, where the prosecutrix was allegedly kept by the accused. She further deposed that she had asked for birth certificate of the prosecutrix from her father, however, he sent school certificate only and that she did not try to obtain birth certificate of prosecutrix from Ludhiana and that she was not aware, if father of the prosecutrix had submitted an affidavit, which was in Gurumukhi language, at the time of her admission in the school. She termed it correct that on the day, statement of prosecutrix was recorded u/s 164 Cr.P.C, she came to the court with her father and that her relatives were not accompanying her on that day and that PW13 met prosecutrix in the court on that day and that she inquired from the persons residing in the neighbourhood of accused and prosecutrix, if accused used to go for work between 09.06.2010 to 19.06.2010, however, they said that he used to remain in the room itself and that they did not tell her anything about the work of the accused. She also termed it correct that prosecutrix had already informed her about the place of occurrence, prior to same being pointed out to her by the accused. She denied the suggestion that she had deliberately concealed the birth certificate of the prosecutrix as she was shown to be more than 18 years of age as on the alleged date of incident and she instead directed the father of prosecutrix to produce school certificate wherein, her date of birth was under mentioned. The PW13 denied that she had deliberately not recorded the statement of prosecutrix on 19.06.2010 or that same was recorded after due deliberation and manipulations or that all the paper work was done while sitting in the PS or that accused had not make any disclosure statement or that his signatures were forcibly S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 18/36 19 obtained on the alleged disclosure statement. The PW13 also claimed that accused had been falsely implicated in the present case at the instance of father of the prosecutrix or that she had not conducted fair investigation in the present case or that investigation was conducted as per wishes of the father of the prosecutrix and against the accused or that she never visited the spot i.e. houses at Jahangir Puri or Ram Garh or that she was deposing falsely being the IO of the case.
33 The PW9, Ct. Meenal Singh, had joined the investigation of the case with the IO on 19.06.2010 when doctor at BJRM Hospital had medically examined the prosecutrix and deposed regarding the same.
34 The PW12, Ct. Sunil Kumar, had joined the investigation of the case with the IO on 19.06.2010 and deposed that on that day on the directions of IO, he along with Ct. Raju had taken accused Sushil Kumar to BJRM Hospital for his medical examination and that after the medical examination of accused Sushil Kumar, doctor handed over two parcels sealed with the seal of BJRM Hospital along with sample seal to Ct. Raju and that in the meantime, IO SI Ina Kumari also reached to the hospital along with the prosecutrix and that Ct. Raju handed over the abovesaid parcels to her and that PW13 had taken the same into possession vide seizure memo Ex.PW12/A and that in the hospital, IO handed over one rukka to PW12, who took the same to PS for getting registered the case and that after getting registered the case, he went to B27, Ramgarh, Jahangir Puri, and handed over rukka in original and computerized copy of FIR to the IO and that in his presence IO had also prepared the site plan at the instance of prosecutrix and that thereafter they came back to the PS. S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 19/36 20 35 The PW16, Ct. Sanjay, had taken the exhibits of the present case vide RC No.36/21/10 to FSL Rohini on 13.07.2010 and deposed regarding the same. Other Witnesses 36 The PW17, Sh. V. Sankaranarayan, is the Senior Scientific Officer (Biology), FSL, Rohini, Delhi. He deposed that on 13.07.2010, three sealed parcels, as per forwarding letter were received in the FSL from SHO, PS Mahendra Park, Delhi, in connection with present case and that he examined the parcels and prepared his report. He proved his detailed biological report as Ex.PW13/I and the serological report as Ex.PW13/J. He also deposed that on serological examination Ex.3 (Gauze cloth piece with sample of blood of accused) showed reaction for human blood group 'B' and Ex.1a (underwear of prosecutrix) also showed reaction for blood group 'B' (semen). 37 The PW18, Ms. Smita Garg, Secretary, DLSA - then learned MM, had recorded the statement of prosecutrix u/s.164 CrPC. She proved the said statement as Ex.PW2/C. The application filed by IO was proved as Ex.PW13/G while the certificate given by PW18 was proved as Ex.PW18/A. She further deposed that a copy of statement was supplied to the IO vide application Ex.PW13/G. 38 The PW4, Sh. Krishan Kant Rudra, is the Adviser of Veer Haqiqat Public High School, Gaushala Raod, Ludhiana and he deposed that the according to the admission form, the date of birth of prosecutrix was 29.12.1996 and that at the time of S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 20/36 21 admission, Ganga Prasad Sahu, father of prosecutrix, had also given one affidavit regarding her date of birth. He proved the photocopy of admission form as Ex.PW4/A, copy of said affidavit as Ex.PW4/B and original certificate issued by Neelam Kapoor, Principal of the school, as Ex.PW4/C. 39 During his crossexamination, PW4 admitted that there was no other document of age of prosecutrix on record except the affidavit regarding the date of birth of the prosecutrix given by her father.
40 After closing of prosecution evidence, statement of accused Nazim was recorded u/s 313 Cr.P.C. The accused stated that this is a false and fabricated case and that the case had been instituted against him as per wishes of father of prosecutrix and that police officials, under the dictate of father of prosecutrix, had prepared a false and fabricated case against him. He further stated that he is innocent and had been falsely implicated in the case at the behest of father of the prosecutrix and that he had nothing to do with the alleged offence. The accused declined to lead evidence in his defence. 41 Arguments have been addressed by learned amicus curie for the accused as well as learned Additional PP for the State.
42 Learned Additional PP has contended that prosecution has succeeded in proving its case against the accused beyond reasonable doubt and that the prosecutrix has fully supported the case of the prosecution and that she has clearly deposed about the manner in which she was forcibly taken away by the accused and that she has also S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 21/36 22 deposed about the manner in which accused committed rape upon her. It is further stated that the remaining prosecution witnesses have also corroborated the testimony of the prosecutrix and hence, the prosecution has succeeded in proving its case against the accused beyond reasonable doubt and has accordingly prayed that accused Sushil Kumar be convicted u/s.363/366/376 IPC.
43 Learned amicus curie for the accused on the other hand has filed written submission. He has also contended that prosecution has miserably failed to prove its case against the accused and that accused has been falsely implicated in the present case. He has further contended that prosecutrix is unreliable and untrustworthy witness as she has constantly changed her version. It is thus contended that based on the testimony of the prosecutrix itself, accused is entitled to be acquitted of all charges in the present case and it is prayed accordingly. The judgments, as reproduced in written submission have been relied upon by learned amicus curie in support of his arguments.
44 I have heard the arguments put forward by ld. Addl. PP and learned amicus curie for the accused Sushil Kumar and have carefully gone through the record as well as written submissions and judgments relied upon by learned amicus curie. I have also carefully considered the evidence adduced by the prosecution in support of its case. 45 In the present case accused Sushil Kumar is facing trial for having enticed away prosecutrix, a minor aged about 13 ½ years, out of keeping of her lawful guardian i.e. her parents without their consent and further for having kidnapped or abducted the prosecutrix with intent that she may be compelled or knowing it to be likely that she S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 22/36 23 would be compelled / forced or seduced to illicit intercourse and further for having forcibly raped the prosecutrix against her wishes.
46 The prosecutrix is the sole witness put forth by prosecution to testify regarding the allegation of enticement and kidnapping / abduction of prosecutrix by the accused and subsequent rape of prosecutrix by accused Sushil Kumar. The prosecutrix is alleged to have been taken away on 09.06.2010 at about 3:30 am by accused and was recovered on 19.06.2010 by her father and produced before the Police. On the same day statement of prosecutrix Ex.PW2/A was recorded wherein she deposed as under : "Mein (prosecutrix) janam se apne matapita ke sath Ludhiana me rehti hu aur 9th class me padati hu ; yeh hamara niji makan hai ; iss makan me kirayedar Sushil s/o Shiv Rama, gaon Lachhipur, Thana Khiroh, Jilla Rai Bareli, umar 25 varsh, pichle do mahine se kiraye par 500 rupaiye parti mah ke kiraye par rehta hai ; school ki chhutiyo ke doran meri dosti Sushil se ho gayi thi ; Sushil dhire dhire mujhe behlane phuslane laga aur lalach bhi dene laga tha ; kehta tha ki meri Delhi me ek factory hai aur bada makaan hai, yadi tum mere se shadi karne ko raji ho gai toh tum bahut sukhi jeevan bitaogi ; mein Sushil ke jaal me fasati gayi aur Sushil mujhe achha lagane laga tha ; Dinak 09.06.2010 ko mujhe, mummy, Guddi, Rani tatha chhote bhai beheno ke sath apne patrik gaon Rai Bareli jana tha ; yeh sab bate maine Sushil ko batala di thi ; Ludhiana Junction S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 23/36 24 par hum Hawda Express me chalne ke liye taiyar hokar Station pahuche the ; Station par Suchil bhi hamare sath aaya tha ; Hamari seate booked thi ; Sushil general ki ticket Ambala Station ki le chuka tha ; Ludhiana Station par hum dono ne Ambala uttarane ka plan bana liya tha ; raat karib 3:30 Am baje Ambala Railway Station par mein aur Sushil utar gaye : uss waqt mummy wah mere bhai behein soye hue the ; Ambala se dusari train lekar Sushil ke behlane, lalach, loabh me aakar New Delhi Station utarkar bus dwara Jahagir Puri dinak 10.06.2010 ko din ke karib 11:00 AM baje pahuche the ; J 1959 Jahangir Puri ke makan me kiraye par rehnewala Chintu Driver ke kamre ka tala laga mila tha jo Suchil ka purana dost hai ; karib do ghante intezar kiya parantu Chintu nahi pahucha tha ; hamare pass Chintu ka koi phone number tha ;
intezar ke baad mujhe Sushil Sarojini Nagar Market bus se lekar gaya tha ; waha bhi Sushil ka koi Dinesh namak dost nahi mila tha ; waha raat ho chuki thi ; hum dono ne market ke bagal me bethkar puri raat guzar di thi ; dinak 11.06.2010 ko subah karib 9:00 am baje dubara Jahangir Puri Chintu ke kamre par aaye the, makan malkin se mile toh pata laga ki Chintu apni gadi lekar gaya hua hai ; karib do ghante baad Chintu waha aaya, hamari mulakat hui, hame Chintu ne apne kamare me baithaya ; karib ek ghanta Chintu hamare sath raha ; baad me hum dono ko kamre par chhodkar Chintu chala gaya tha aur kaha tha ki uske papa aur bhai aye tab tum dono Jawala (kirayedar) ke kamre me ruk jana ; raat ke samay S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 24/36 25 Jawala chhat par sone chala gaya tha ; hum dono 16.06.2010 ki shaam tak wahi rahe the, enn panch (5) rato me mere sath Sushil ne galatkam kiye the ; mein dari hui bhi thi ; shuru me maine aitraz kiya tha aur me roi chillayi bhi thi parantu Sushil ne jabardasti ki thi ; dinak 16.06.2010 ko Chintu ne Ramgrah me ek chota kamra 1000/ rupaiye parti mah kiraye par lekar diya tha ; mein pareshan ho chuki thi ; STD par jakar apne papa ko mobile par phone kiya tha aur kaha tha ki me thik hu jaldi hi Ludhiana aaungi ; iske baad dinak 18.06.2010 ko dubara papa ko phone kiya tha jo aaj mujhe dudte hue mere papa aur rishtedaro ne mujhe khoj liya hai aur papa ko batla di hai ; mujhe Sushil behla - phuslakar shadi karne ki niyat se factory aur makaan ka malik batlakar Delhi me lakar meri itcha ke virudh zor jabardasti karke galatkam kiya hai aur meri izzat kharab ki hai, mere sath sharirik shoshan hui hai ; meri doctori janch mere papa ki mojudgi me karwai jaye aur Sushil ke khilaf kanooni karwahi ki jaye."
On the basis of complaint Ex.PW2/A case FIR Ex.PW1/B was registered against accused at P.S. Mahendra Park.
47 The statement of prosecutrix u/s.164 CrPC Ex.PW2/C was recorded on 22.06.2010, wherein she deposed that she is residing with her parents at Ludhiana and that she had three younger brothers and sister and that her father was working as a labourer. She further deposed that on 19.06.2010 she along with her mother, brothers S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 25/36 26 and sister went to Rai Bareli through Hawda Express and that Sushil, who was residing as a tenant in their house, also came to that train and that she along with Sushil got down from the train at Ambala and that her mother was sleeping at that time and that she did not tell her mother. She then deposed that Sushil had told her that he had his own house and factory at Delhi and that she would live happily and that due to said talks, she came to Delhi under his influence and that after coming to Delhi, she came to know that Sushil had nothing with him. She further deposed that thereafter they took a room on rent at Ramgarh and that she remained with him till 17 th June and that Sushil did not marry him but he committed wrong act with her despite her refusal and that on 18 th June, she made a call to her father and that her father came to Delhi and thereafter he along with them went to PS. She further deposed that she repeatedly requested Sushil to let her go home but he denied the same.
48 In her testimony as PW2, prosecutrix deposed as under : "I am residing in Ludhiana in Guru Nanak Nagar, Tajpur Road, near Central Jail with my parents. I was studying in 9th class in Veer Haqiqat Public High School, Ludhiana, at the time of incident and my date of birth is 29.12.1996. The house situated at Ludhiana is our own house and accused Sushil, present in the Court today (correctly identified), was living in our house as a tenant. He used to pay Rs.500/ as rent.
In this year, in the summer vacations, accused started enticing me S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 26/36 27 and asked me to accompany him to Delhi and told me that he was having a factory and house there. Accused also asked me to marry with him. Accused also told me that after marriage with him, I will live happily. Due to these talking, I came under the influence of the accused. At that time, I was aged about 13 ½ years. I started liking accused Sushil thereafter.
On 09.06.2010, my father boarded me, my mother and my brother in a train to go to Rai Bareilly. I told this fact to the accused Sushil prior to boarding. We boarded the train the Hawra Express from Ludhiana Junction. Accused Sushil met me at Ambala Station. We were in a reserved coach. Accused was in a general coach.
Accused Sushil reached in our coach and I got down with the accused at Ambala Station from the train at about 3:00 a.m. night. My mother and my brother were sleeping in the train at that time. I along with accused boarded another train from Ambala and reached at Delhi. We came down from the train at New Delhi Station and went to Jahangir Puri in a bus. We reached at Jahangir Puri at about 11 a.m. on 10.06.2010. Accused took me in the house of Chintu at Jahangir Puri. I do not remember the number of the same. Chintu was not present at that time and his house was found locked. Chintu was son of the uncle of accused Sushil. Accused Sushil with me waited for Chintu for one hour, but Chintu S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 27/36 28 did not turn up. Thereafter, we went to Sarojini Nagar market by bus. Accused took me to the house of one Dinesh, who was friend of accused Sushil. Dinesh met us in the night. Till night, we waited Dinesh in a park of the market. Again in the morning, accused took me to Jahangir Puri i.e. on 11.06.2010. We met there with the landlady of the room in which Chintu and Jwala were residing. The landlady told us that Chintu had gone with the vehicle as he was a driver. We stayed there for one hour. Meanwhile, Chintu came back and took us to his room. Chintu stayed for a while in the room and thereafter left the house. Thereafter, accused and I left in the room. Chintu told us to stay in the room of Jwala as there was no space in his room as his father and brother were also residing with him. We went to the adjoining room of Jwala. In the night hours, Jwala went on the roof for sleeping after leaving us in the room. We lived in the said room upto 16.06.2010. During this period, accused forcibly committed rape with me. On 17.06.2010, Chintu arranged a rented room for us at a monthly rent of Rs.1000/.
Thereafter we shifted in the said room in Ram Garh. I do not remember the house number of the same. On 18.06.2010, I made a call to my father from PCO at Ludhiana. My father and my brother reached at the room of Ramgarh with my uncle Ram Bilas. They caught hold both of us and produced us before PS Mahendra Park.
S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 28/36 29 From PS, I was taken to a hospital for my medical examination. At the time of medical examination, the doctor seized my undergarments and my nail pieces. My statement was recorded by the police, which is Ex.PW2/A and bears my signatures at point "A". Accused Sushil was also medically examined. He was arrested vide memo Ex.PW2/B which bears my signatures at point "A". Police also produced me before the Magistrate and my statement was recorded there. She identifies her undergarments as Ex.P1 during her further examination."
49 During her crossexamination by learned amicus curie, prosecutrix deposed that she was born in City Ludhiana and that her birth was got registered by her father with the Municipal Corporation and that she was got admitted in Veer Hakikat Public High School in 7th Class. She then admitted that accused Sushil was working in the factory of blanket and that he used to leave at about 8:30 AM and returned back at about 8:30 PM. She denied the suggestion that accused used to help them in their work at the instance of her mother or that she was not going to school, so her parents searched for a boy and that she was engaged with him at Rai Barely and that she did not like the said boy and that she did not want to marry with him. She further denied the suggestion that thereafter she told to the accused that as she was being engaged against her wishes so she wanted to marry with accused and was ready to go with him or that accused refused her proposal and told her that she should not marry with him against the wishes of her parents.
S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 29/36
30
50 During her further crossexamination, PW2 claimed that she had narrated
the facts to lady doctor, who had examined her. She admitted about presence of RPF officials at Ambala Station. She denied having married accused at Kalkaji Mandir and also denied telling everyone, including the landlady, that she was wife of accused. She admitted that there were several persons residing in neighbourhood at Jahangirpuri. She claimed to have told Jwala that accused had kept her forcibly. She admitted that she did not tell any neighbour that accused had forcibly raped her and gave explanation that it was so as accused had threatened her. She also stated that she did not ask for help from PCO owner and she did not raise any hue and cry when she came back from PCO Booth to her room.
51 From the abovementioned statements and the testimony of prosecutrix it is clearly brought out that prosecutrix had herself accompanied accused and gone with him from place to place without raising any alarm or protest against his acts. It was prosecutrix who in the first place informed accused that she would be going with her family to Rai Barelly and planed to meet him. Accordingly, she met accused, while her other family members were asleep, and got down with him Ambala Station and further came along with him to Delhi. Thereafter she resided with him at 1959, J Block, Jahangir Puri, with friend of accused and then at 27 B Ramgarh in a rented accommodation. During her entire stay with the accused, the prosecutrix was in constant contact with public person and places she visited / stayed were thickly populated public places / residential colonies yet she did not raise any alarm against her alleged forcible kidnapping, confinement and rape by the accused. In fact from testimony of PW5 Smt. Balesh Devi, PW6 Suresh, PW7 Jawala Mehta and PW8 S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 30/36 31 Tinku @ Chintu, it appears that both accused and prosecutrix represented themselves to be brother and sister to everyone. They stayed together without quarreling and it appeared to everyone that prosecutrix had come willingly with accused. The call which prosecutrix made to her father on 16.06.2010 was paid for by the accused, as is brought out from the crossexamination of prosecutrix herself.
52 In these facts and circumstances of the case, more particularly testimony of prosecutrix, the element of 'taking away' or 'enticement' is found to be lacking. In view of the material on record, it appears that prosecutrix was willing and consenting party and it seems that everything has happened with her sweet will and the factum of kidnapping of prosecutrix does not stand proved. I am supported in my view by judgment in case titled as Bunty vs. State (G.N.C.T.) of Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011 by the Hon'ble Delhi High Court, wherein it was held that : "8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had travelled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...."
53 It would also be relevant to refer to the case titled as " S. Varadarajan Vs. S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 31/36 32
State of Madras, AIR 1965 SC 942", wherein while distinguishing between " taking"
and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India that : "There is a distinction between " taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing , voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian."
54 Moreover in the present case there is doubt regarding the age of the prosecutrix. The prosecution has filed school certificate Ex.PW4/A, wherein the date of birth of prosecutrix has been mentioned as 29.12.1996. Since the date of commission of offence in the present case is 09.06.2010 and the learned Additional PP has contended that the prosecutrix was aged about 13 ½ years at the time of commission of offence and hence her consent is immaterial.
55 In this regard perusal of record produced by PW4 shows that prosecutrix was admitted in Veer Haqiqat Public School in 6th class on the basis of an admission form and affidavit, both given by father of the prosecutrix and her date of birth was entered in school record on the basis of affidavit Ex.PW4/B given by her father. No other document of age was filed at the time of admission of prosecutrix in school of S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 32/36 33 PW4. Further Sh. Ganga Prasad Sahu, father of prosecutrix, who was examined as PW10, has stated during his crossexamination that prosecutrix is his eldest child and was born three years after his marriage, which was solemnized in May, 1992. The PW10 could not produce any other document of age of prosecutrix and stated that at the time of admission of prosecutrix in Veer Haqiqat Public School in Vith class, he had submitted school leaving certificate of Vth class of Shivalik Public School and that at the time of admission of prosecutrix in Shivalik Public School, he had submitted Janam Patri (affidavit) from local Court. In record produced by PW4 from Veer Haqiqat Public School, no such SLC from Shivalik Public School was found available and the affidavit of PW10 Ganga Prasad Sahu i.e. Ex.PW4/B was also in Punjabi / gurmukhi language which PW10 admitted that he was not conversant with. It has been held in Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 Supreme Court 1796, that, " . . . . . . . . . To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry regarding to 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 material on which the age was recorded . . . . . ."
S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 33/36
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56 Even otherwise as per PW10 himself the date of birth of prosecutrix would
be sometimes in year 1995, if he was married in May 1992 and prosecutrix was born three years thereafter. In these circumstances, school certificate Ex.PW4/A cannot be taken to the conclusive proof of age of prosecutrix and the report of bone age by radiologist at BJRM Hospital has to be taken into consideration. The said report was proved as Ex.PW13/H (also as Ex.PW15/A). Since prosecutrix was examined by radiologist only and not by medical board, margin of error of two years either side would have to be given while computing her age as has been held in case of Jaya Mala Vs. Home Secretary, State of J & K, AIR 1982 SC 1297 and Alamelu & Anr. Vs. State, 2011 (1) RCR Criminal, which have been relied upon by learned amicus curie. 57 Further as has been held in case of State of Uttar Pradesh Vs. Ram Veer Singh & Ors., AIR 2007 SC 3075, when two views are possible on evidence adduced then the view which is in favour of the innocence of accused has to be taken. In this case margin of error has to be given on higher side while computing the age of prosecutrix and thus computing her age would be above 18 years as on date of commission of offence.
58 Further the delay in filing of complaint / FIR by father of prosecutrix does not stand explained satisfactorily in the present case. Admittedly the prosecutrix went missing on the night of 09.06.2010 from a train in which she was to travel from Ludhiana to Rail Barelli with her mother and other siblings. The PW10 Sh. Ganga Prasad Sahu had suspicion on accused as soon as he received call from his wife regarding missing of prosecutrix yet he did not lodge any complaint in local police station. His wife also did S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 34/36 35 not lodge any complaint with Railway Police regarding missing of prosecutrix from train. Such a conduct by parents of prosecutrix is quite unnatural, for parents of any teenaged girl, who goes missing, would naturally get worried about the whereabouts and safety of their child and would take necessary steps and file complaint with police to have their daughter traced out. To the contrary father of prosecutrix continued to wait till 16.06.2010, when he claims he received phone call from prosecutrix, to search for her. Then also when he came to Delhi, he did not inform the police and went to police only on 19.06.2010 after he had traced out prosecutrix and accused and apprehended them and produced them before police. Thereafter statement of prosecutrix was recorded on basis of which FIR was registered only on 19.06.2010. This delay in lodging of FIR does not stand satisfactorily explained by prosecution. In these circumstances the fact that PW10 did not hand over any tickets vide which his wife, prosecutrix and other children were traveling by train and non joining of PCO owner at Delhi with whose help PW10 claims that he had traced out prosecutrix and accused becomes very material. 59 After consideration of the entire material placed on record by the prosecution, I am of the opinion that the case of the prosecution is full of loopholes and prosecution has failed to prove its case against accused Sushil Kumar beyond reasonable doubt. The prosecution has further failed to prove that accused had taken the prosecutrix, by enticing her, from Ambala Railway Station on 09.06.2010 or that he kidnapped or abducted prosecutrix and committed rape on the prosecutrix forcibly without her consent. Accordingly, I acquit accused Sushil Kumar of the charged offences, giving him benefit of doubt for the offences u/s. 363/366/376 IPC.
S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 35/36
36
60 Judgment in case of Nand Kishore Vs. State of Rajasthan ; Rahim Beg
Vs. State of U.P. and Chander Dev Rao Vs. State of Delhi, relied upon by learned amicus curie for accused are not applicable in facts and circumstances of the present case and hence not discussed in details herein.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 05.08.2013) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 36/36
37
FIR No. 151/10
P.S. Mahendra Park
29.07.2013
Present: Ld. Addl. PP for the State.
Accused produced from JC with counsel Sh. Sachin Sharma, learned Amicus Curie.
Part arguments heard.
Be listed for further arguments, if any, otherwise for judgment on 05.08.2013.
ASJ / NW01
Rohini/Delhi
29.07.2013
05.08.2013
Present: Ld. Addl. PP for the State.
Accused produced from JC with counsel Sh. Sachin Sharma, learned Amicus Curie.
Arguments heard.
Judgment shall be passed during the course of the day.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 05.08.2013 At 4:15 PM Present: As before.
Vide separate judgment, announced today in the open Court, accused Sushil S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 37/36 38 Kumar has been acquitted of the charged offence.
He be released forthwith, if not wanted in any other case.
File be consigned to Record Room.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 05.08.2013 S.C No. 49/11 : State vs. Sushil Kumar Page Nos. 38/36