Delhi District Court
State vs Amit on 19 May, 2011
IN THE COURT OF SHRI SANJAY SHARMA
ADDITIONAL SESSIONS JUDGE - I (EAST)
KARKARDOOMA COURTS : DELHI
SC No. 09/2010
Unique Case ID No. 02402R0106372009
FIR No. 145/2008
PS Mayur Vihar
Under Section 363/376/342/506 IPC
State Versus Amit
Amit S/o Gyan Chand R/o Murgi Farm,
Medical College, Shastri Nagar,
Meerut, U.P.
Date of Institution of Case : 05.03.2010
Date on which judgment Reserved : 11.05.2011
Date on which judgment delivered : 19.05.2011
J U D G M E N T :
1. The case of the prosecution in brief is that on 07.05.2008 at about 04.30 PM while the prosecutrix, then aged about 15 ½ years, while going to attend her tuitions, was kidnapped by accused Amit under threat to kill her. He allegedly took her to Meerut where he confined her in a house for about 67 months and during this period he committed rape upon her several times. On 05.01.09 the prosecutrix managed to call her parents through a STD shop and on 07.01.09 the accused brought her FIR No. 145/2008 Page 1 of 13 back to Delhi where her parents took both of them to the PS. The present FIR was lodged on the complaint of the father of the prosecutrix. After the arrest of the accused, he and the prosecutrix were got medically examined, statement of the prosecutrix was got recorded u/s 164 Cr.P.C and other formalities of investigation were completed.
2. After conclusion of investigation charge sheet was filed against accused Amit for the offences punishable under Section 363/376/342/506 IPC.
3. After the case was committed to the court of Sessions and on considering the material on record, charge dt. 05.06.2009 was framed against the accused for the offences punishable under Section 363/366/344/376/506 IPC to which he pleaded not guilty and claimed trial.
4. 12 witnesses were examined by the prosecution at the trial.
PW1 was the prosecutrix who deposed the above facts and proved her refusal statement for getting her medical examination conducted as Ex. PW1/A and her statement u/s 164 Cr.P.C as Ex. PW1/B. PW2 Smt. Sudha was her mother and PW3 Kanwar Pal was her father who both deposed about the missing of the prosecutrix, about the phone call received from her and her subsequent return to Delhi and the other formalities of investigation.
FIR No. 145/2008 Page 2 of 13
PW4 HC Madan Pal was the Duty Officer who recorded the FIR Ex. PW4/A and proved the endorsement on the rukka Ex. PW4/B. PW5 Ct. Sanjay Kumar proved the arrest documents of the accused Ex. PW3/C & C1 and also the seizure memo of the exhibits given by the doctor as Ex. PW5/A. PW6 Dr. Arvind Kumar proved the report on the MLC of the accused as Ex. PW6/A regarding his potency test.
PW7 Mrs. Nirmal Rohatgi, Vice Principal Janaki Devi Sarvodaya Kanya Vidyalaya, Pocket II Mayur Vihar, PhaseI proved the birth certificate of prosecutrix as Ex. PW7/A. PW8 Dr. Sushil Kumar had examined the accused and proved his MLC as Ex. PW8/A. PW9 HC Anil Kumar proved DD no. 4A regarding missing of the prosecutrix.
PW10 Dr. Aparna Chaturvedi proved the MLC of the prosecutrix as Ex. PW10/A. PW11 Sh. Rakesh Kumar, the then MM proved the statement u/s 164 Cr.P.C as Ex. PW1/B and his order allowing copy of the statement to the IO as Ex. PW11/A. PW12 SI Nalin Verma was the IO who deposed about the investigation conducted by him. He proved the application for getting the statement of prosecutrix recorded u/s 164 Cr.P.C as Ex. PW12/A and had filed the charge sheet against the accused.
5. Statement of the accused was recorded u/s 313 Cr.P.C and the entire incriminating evidence was read over and explained to him which he denied and pleaded that the prosecutrix was in love with him and FIR No. 145/2008 Page 3 of 13 when her parents came to know about their affair, they got him falsely implicated in this case. He denied having kidnapped the prosecutrix or having committed rape upon her. He did not lead any evidence in defence.
6. I have heard Shri Ashok Kumar Ld. APP for the State, Shri S. Hasan Zaidi - Adv./Amicus Curiae for the accused and have carefully gone through the case file.
7. There are two important factors for deciding the case as one in hand that is the consent of the prosecutrix and her age. Evidence has been led by the prosecution on both these aspects. It was argued by the Ld. Counsel that the prosecutrix was a consenting party and was major at the time of the alleged incident. It was further submitted that no cogent evidence regarding her age could be proved on record and further pointed out towards various inconsistencies and contradictions appearing in the testimony of the material witnesses to bely the prosecution version which require consideration.
8. The testimony of PW1, the prosecutrix in itself is full of inconsistencies, improvements and contradictions ab - initio. In her examination in chief, she deposed that the accused was known to her as he was residing in the same locality and was employed in her neighbourhood. As regard the incident, she deposed that on 05.05.08 at FIR No. 145/2008 Page 4 of 13 about 04.30 PM, while she was going to attend her tuitions, accused met her in the street and asked her to accompany him failing which he threatened to kill her. She never deposed that the accused was armed with any weapon. In her crossexamination it was observed by the court that she did not allege that the accused was armed with any weapon in any of her statement including examination in chief but during cross examination she introduced a new fact that the accused was armed with a kitchen knife about 8 inches long. It was pointed out by the Ld. Counsel for the accused that the place from where the accused allegedly kidnapped the prosecutrix is a densely populated area and a busy thorough fare. It was deposed by PW1 in her cross examination that she never sought any help from any public person nor raised any cry for help from the point where she was kidnapped till she reached Meerut which fact in itself raises serious doubt regarding the alleged incident.
9. It was deposed by PW1 that the accused took her to Patparganj on foot from where she was taken to Mohan Nagar in a TSR and from there they boarded a truck and reached Meerut. It was rightly pointed out by the Ld. Defence Counsel that the TSRs plying in Delhi cannot venture out in UP because of strict traffic police control. It is again quite surprising that even while boarding the truck, the prosecutrix made no resistance and quietly reached Meerut.
10. In her further examination in chief, the prosecutrix deposed FIR No. 145/2008 Page 5 of 13 that the accused hired a room at Meerut and confined her there for about 67 months. In her cross examination, she deposed that it was a two storeyed house having five rooms where the parents and brother and sisters of the accused were also residing along with one land lady and her children. She also deposed that she never told the parents of the accused or the land lady about her kidnapping. She again deposed that she was confined in a room at the first floor which belonged to the land lady but was lying vacant, against her consent and the land lady did not know about her confinement there as she was blind. All these facts were created by her during cross examination which is clear from her testimony.
11. In her cross examination the prosecutrix further deposed that she used to attend the call of the nature in the toilet situated on the ground floor which shows that she had access to the entire house. She also deposed that the accused used to provide her water for bathing in the said room on her instructions and used to provide her the clothes of her elder sister Pooja. She further deposed that there was a bolt inside the room where she was confined which she used to open on the asking of the accused or else he used to beat her when she used to come out. She further deposed that the accused used to wake up whole night and that she never tried to run away from there. She also deposed that the accused used to remain present always outside the said room and even used to sleep outside the room which is highly unbelievable. FIR No. 145/2008 Page 6 of 13
12. In her further cross examination, she deposed that the mother of the accused used to come to her room when she had to attend the call of the nature and she used to talk to her but never asked her to get her rescued though, she told her about the acts of the accused. This amply shows the conduct of the prosecutrix and that she was residing with the accused with her consent.
13. As regard the allegation of rape are concerned, that are also quite inconsistent. In her examination in chief, she deposed that the accused had sexual intercourse with her against her will and raped her several times in that room. In her cross examination, she denied any knowledge as to when the accused committed rape upon her for the first time, not even the number of days after she was brought to Meerut. She denied having stated before the Ld. MM that she was raped for the first time in August and was duly confronted with her statement u/s 164 Cr.P.C Ex. PW1/B. She was again confronted with the said statement when she denied having told to the Ld. MM that the accused committed rape upon her 34 times.
14. It was further deposed by PW1 in her cross examination that she never raised any alarm when the accused raped her nor her clothes got soiled during the act. In her later cross examination, she contradicted herself, deposing that she resisted the accused when he raped her but did FIR No. 145/2008 Page 7 of 13 not remember if he got any scratch marks on any part of his body. Thus, the entire version given by her regarding the alleged act of rape is totally inconsistent and self contradictory. More so, when she was brought to Delhi and was taken to hospital for medical examination, she, as well as her mother PW2, both refused for her medical examination for ascertaining the allegations of rape. The only reason given by her for her said refusal was that her mother refused for it but she herself could not give any reason for her refusal. PW2 her mother gave the reason for refusal for examination as social stigma. Both these reasons are beyond acceptance. The prosecutrix was already missing for the last about 67 months and thus, if there was any stigma on the family, that damage had already been done.
15. The other fact of the prosecutrix calling her parents from the STD booth is also full of inconsistencies and contradictions. The prosecutrix and her mother PW2 could not tell any date when the said call was made. It was deposed by PW1 that on one day while the accused was not present in the room, she went to the STD booth and informed her mother on mobile phone. In her crossexamination, she deposed that when she went to the STD booth, no one was present in the house and the accused after consuming liquor in the day had gone out with other family members and had forgot to lock the room. In the same breath, she deposed that after some time her father gave a call at the said STD booth number and the owner called the accused who talked to her FIR No. 145/2008 Page 8 of 13 father. Similar deposition was made by PW2 in her examination in chief but in her cross examination, she deposed that her husband did not talk with Amit in her presence. No call records were seized by the IO during investigation. It is highly unbelievable that if no one was present in the house, how the father of the prosecutrix could talk to the accused immediately after receiving her call. The depositions are self contradictory. It is also to be noted that if the prosecutrix could go out to make the call in the absence of any of the family members, why she returned back again to the same house and did not run away. On the contrary, PW3, the father deposed that he received a phone call of the prosecutrix from Meerut and she informed her mother i.e. his wife that the accused had taken her to Meerut and then he talked with him. Thus, this story is also not plausible and appeals to the senses.
16. It is also to be noted that there are other inconsistencies and contradictions regarding the alleged incident. PW2 deposed that on the day when the prosecutrix went missing, she returned from her duty at about 9 PM. She deposed that she used to work in houses as a cook and used to go for work in two shifts in the morning and again at 02.30 PM and used to return at about 09.00/09.30 PM while her husband had no fixed time of his return. PW3 in this respect deposed that his wife i.e. PW2 was not employed anywhere and was a housewife and that on the day when the prosecutrix went missing, he returned back home at 04.30 PM. He also deposed that the persons of the locality informed him that FIR No. 145/2008 Page 9 of 13 his daughter was missing but no such person was named. PW2 in this regard deposed that she came to know that her daughter was with accused about one and a half months after her missing but improved later saying that she came to know only after 7/8 months of her missing about this fact.
17. As regard the return of the prosecutrix with the accused to Delhi is concerned, there are again contradictory versions appearing in the testimonies of these witnesses. PW1 deposed that she failed to remember as to by which mode of transport, they returned back to Delhi i.e. Whether by bus, car or motorcycle nor she could depose the time of their return. She also deposed that they started in the morning from Meerut and reached Delhi in the evening without stopping anywhere which is again factually incorrect as the distance between the two cities is not more that 60 km. She also deposed that in the mid way the accused did not consumed liquor nor he consumed liquor before starting from Meerut whereas the MLC of the accused Ex. PW8/A shows that he was smelling of alcohol. It is the case of the prosecution that at Delhi, the accused was beaten by public persons and PW5 deposed that about 100 persons had accompanied the accused and the prosecutrix to the PS but no such person was made a witness in this case.
18. The above discussion clearly shows that the entire story has been concocted and none of the three witnesses PW1, 2 & 3 are worthy FIR No. 145/2008 Page 10 of 13 of credence and it is also clear that either the prosecutrix went with the accused with her own consent or she never went at all.
19. The only remaining question is regarding the age of the prosecutrix. The same has also not been proved with authenticity. Even the parents of the prosecutrix had deposed her age differently. PW2 deposed that she was running in her 16th year at the time of incident while PW3 deposed that she was running in her 15th year. It is a matter of record that no ossification test of the prosecutrix was got conducted and the prosecution has only relied upon the school records of the prosecutrix to prove her age. That are also not beyond doubt. PW7 who proved the date of birth of the prosecutrix on the basis of the school records through Ex. PW7/A, in her cross examination deposed that the said certificate Ex. PW7/A was issued on the basis of her school leaving certificate of her previous school and at that time she had not seen her original MCD birth certificate and further that no personal verification regarding her date of birth was got conducted. PW3 during his examination produced the MCD birth certificate of the prosecutrix but it was never got proved through the official from the office of the Registrar Birth and Death nor it was ever verified by the IO and hence, is not admissible in evidence.
20. In Sunil Vs State of Haryana 2010 (1) JCC 140 no primary evidence regarding the age of the prosecutrix was proved on record nor she was got examined from any radiologist and hence benefit was FIR No. 145/2008 Page 11 of 13 granted to the accused. Similarly, in Alamelu & Anr. Vs State 2011 (1) C.C.Cases (SC) 250 it was observed by the Hon'ble Apex Court that there was difference in the version of the father and the girl regarding the age and the conviction was based on the basis of transfer certificate and these facts do not find favour of the Hon'ble Apex Court and the accused was acquitted. Similarly in the present case, no cogent evidence regarding the age of the prosecutrix has been brought on record and considering the conduct of the prosecutrix, the benefit would definitely go in favour of the accused.
21. In another judgment relied upon by the Ld. Counsel for the accused State of Haryana Vs Naresh @ Pappi 1996 (2) Recent Cr. 166 (P&H)(DB) it was held in a case of kidnapping and rape of a 15 ½ year old girl that the accused and the prosecutrix travelled to different places and stayed in hotels and had sexual intercourse and thus, it could not be said that the intercourse was without consent of the prosecutrix. It was also held that the prosecution could not prove that the prosecutrix was 15 ½ years of age and thus accused was acquitted giving benefit of doubt.
22. In another judgment relied by the Ld. Defence Counsel Bherun Lal vs State of Rajasthan 1995 (3) Crimes 785 the evidence of the prosecutrix, a 14 year old girl revealed that she was not kidnapped rather she herself left the house and went with the accused and there was FIR No. 145/2008 Page 12 of 13 no evidence that either any inducement or force was used by the accused in taking the prosecutrix and no injury was found on her person. The accused was again acquitted in that case.
23. The above discussion clearly demonstrates that the prosecution not only failed to prove that the prosecutrix was minor at the time of the alleged incident but also failed to prove that she was in any manner abducted or kidnapped by the accused, confined at any place, raped or threatened in any manner whatsoever. Hence the charges levelled against the accused are not proved.
24. Accordingly, the accused Amit is acquitted of the offences punishable u/s 363/366/344/376/506 IPC and is set at liberty. He is directed to be released forthwith if not wanted in any other case.
File be consigned to record room.
ANNOUNCED IN OPEN COURT ON 19th day of May 2011 (SANJAY SHARMA) ADDL. SESSIONS JUDGE(EAST) I KARKARDOOMA COURTS : DELHI FIR No. 145/2008 Page 13 of 13