Delhi District Court
State vs Rohit @ Rohin S/O Sh. Jagdish on 12 January, 2011
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL SESSIONS
JUDGE01, NORTH, DELHI.
FIR No.: 61/2009
PS: Civil Lines
U/s: 376/363/366 IPC
S.C. No.: 77/2010
Case ID No. 02401R0589592009
In the matter of:
State
Versus
Rohit @ Rohin S/o Sh. Jagdish
R/o N76/78, New Om Nagar,
Sangam Park, Rana Pratap Bagh,
PS Model Town, Delhi.
Date of receiving in Sessions Court : 19.05.2010
Arguments Heard : 10.1.2011
Date of Judgement : 12.1.2011
JUDGEMENT
Case Of Prosecution:
1. On 25.4.2009 on receipt of DD No. 25A of PS Civil Line regarding missing of a girl, SI Manish Kumar alongwith Ct. Pradeep reached at the spot i.e. Club Road, Delhi where he met Aslam Khan R/o N76267, New Om Nagar, Dhobi Ghat, Sangam Park, Rana Pratap Bagh, FIR No.: 61/2009 1/18 Delhi who told that his daughter (name withheld to keep her identity confidential) is missing and he is searching her and also told that he does not want to lodge any complaint. Therefore, the DD was kept pending. On 26.4.2009 complainant Aslam Khan came to the police station and gave his statement to the IO. He stated that he is residing with his family and doing private job. On 25.4.2009 he alongwith his wife and daughter aged about 14 years went to the house of his relative Aslam at 4 Club Road, Civil Line, Delhi at about 2.30 p.m. At about 4.00 p.m after receiving a call on her mobile phone, his daughter went out of the house and she has not returned yet now. He stated that his daughter was having friendship with a boy namely Rohin who is residing in his locality. He had given warning to Rohin to keep away from his daughter but he kept on talking with his daughter. He searched his daughter at the house of his relatives but she could not be found. He has suspicion on Rohin that he has taken his daughter after alluring her. On the statement of the complainant, IO prepared a rukka and got registered a case u/s 363 IPC. After registration of the case, investigation was handed over to SI Manish Kumar. During investigation he recorded the statement of the witnesses and searched for prosecutrix but no clue was found. On 27.4.2009 prosecutrix was recovered from PS Dabri and her statement u/s 161 Cr. P.C. was recorded by the IO. Proseuctrix was taken to Aruna Asaf Ali Hospital for her medical examination but she refused for her Gynae examination. Doctor FIR No.: 61/2009 2/18 opined hymen raptured. After this section 376 IPC was added and the prosecutrix was produced before link MM for recording of statement u/s 164 Cr. P.C. On 29.4.2009 the prosecutrix was handed over to her mother. On 01.5.2009 accused Rohin surrendered in the court and he was arrested. His disclosure statement was recorded. Accused was taken on one day police custody remand and his medical examination was got conducted from Aruna Asaf Ali Hospital. Doctor handed over sealed pulanda and sample seal which were taken into possession and deposited in the malkhana. On 02.5.2009 accused was produced before Ld. MM and was sent to J/C. On 02.5.2009, father of prosecutrix moved an application before Ld. MM for medical examination of the prosecutrix and Ld. MM called report on the same for 4.5.2009. IO filed his report before Ld. MM. On 6.5.2009 the further investigation of the case was transferred to ASI Kusum Lata. On 13.5.2009 after hearing, Ld.MM ordered not to conduct medical examination of the prosecutrix again. After completion of investigation, charge sheet u/s 363/366/376 IPC was filed in the court.
2. Since the offence u/s 366/376 IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to the court of Sessions.
Charge Against The Accused:
3. Prima facie case u/s 363/366/376 IPC was made out against the accused. Charge was framed against him to which he pleaded not FIR No.: 61/2009 3/18 guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 15 witnesses in all.
5. The brief summary of the deposition of the prosecution witnesses is as under:
Formal Witnesses:
6. PW7 is Wct. Rekha Rani who stated that on 27.4.2009 she was posted at police station Civil Line and on that day she alongwith ASI Krishan Pal had gone to PS Dabri. On reaching there HC Subhash Chand met them. Prosecutrix and her relative Rihana Parveen were also present in the police station and on the direction of ASI Krishan Pal she took the prosecutrix for her medical examination at Aruna Asaf Ali Hospital. On reaching at the hospital, prosecutrix refused for her medical examination. Thereafter they returned back to the police station. The prosecutrix was produced in Tis Hazari Court and her statement u/s 164 Cr. P.C. was recorded by Ld. MM. Thereafter prosecutrix was sent to Nari Niketan.
7. PW8 is ASI Krishan Pal who deposed on lines of PW7 and has proved recovery memo Ex.PW8/A of prosecutrix.
8. PW9 is Ct. Hans Raj who stated that on 01.5.2009 he was posted at police station Civil Lines. On that day he joined the investigation of this case alongwith SI Manish Kumar. They reached at FIR No.: 61/2009 4/18 Tis Hazari Courts where in the court of Sh. Sudesh Kumar, Ld.MM, accused surrendered. Accused was interrogated with the permission of the court and was formally arrested in this case vide arrest memo Ex. PW9/A. His disclosure statement Ex. PW9/B was recorded. One day police custody remand of accused was obtained. Accused was got medically examined vide MLC Ex. PW5/A and he pointed out the place where he kept the prosecutrix. They tried to trace out the undergarments of accused and prosecutrix worn at the time of incident but same could not be found.
9. PW10 SI Pratap Singh is the DD writer who recorded the DD No. 25A and proved the same as Ex. PW10/A. He also proved the FIR of this case as Ex. PW10/B.
10. PW14 HC Satender Kumar is the duty officer who recorded FIR of this case and proved the same as Ex. PW10/B.
11. PW15 Sh. R. K. Gupta, Sub Registrar, Birth & Death, Civil Line, Delhi who brought the summoned record and proved the date of birth certificate of prosecutrix as Ex. PW15/A and Ex. PW15/B. Material Witnesses:
12. PW1 Sh. Aslam Khan is the complainant who stated that he is doing his private work. On 25.4.2009 he alongwith his wife Tabasum and daughter aged about 14 years had gone to one of their relatives (Sadu Aslam @ Salim) at Club Road, Civil Lines at about 2.30 pm. His FIR No.: 61/2009 5/18 daughter received a phone call at about 4.00 pm on her mobile phone and while talking she went outside of the house of his brother in law ( Sadu) and did not return back. His daughter was on friendly term with accused Rohit who is their neighbour. He searched his daughter at the places of his relatives but no clue could be found. Thereafter he suspected that accused Rohit had taken away his daughter. He had warned him previously also but he did not hear him. Thereafter he reported the matter to the police. IO recorded his statement Ex. PW1/A to this effect.
13. PW3 is Prosecutrix who stated that at the time of incident she was 14 years old. She knows the accused. Date and month she does not recollect. Accused was living in front of their house. Whenever, she went to the roof of her house, accused used to make pass at her (Ishare karta tha). He requested her to be his friend but she refused to be his friend. Accused started following her wherever she used to go. She asked the accused not to chase her because she does not like such habits but accused did not stop following her. One day she was going to her aunt's house. He also reached there following her. He collected her mobile telephone number from her friend and he called her from his mobile when she was at the house of her aunt Praveen. She refused to come out from the house of her aunt, then accused told her that if she will not come, he will reach at the house of her aunt and also threatened to kill her family members. Due to the fear, she came out. Accused met her near park. She asked him FIR No.: 61/2009 6/18 what he wants from her and he told her that he wants to marry her. He caught hold of her hand. She replied to the accused that it is not possible as she does not like him and their caste is also different. Thereafter, accused caught hold her hand and took her to the house of his friend at Pratap Bagh. She was detained there for about one day and he maintained physical relationship with her against her wishes. From there, he took her to the house of his maternal uncle. She cannot tell the address of his maternal uncle as she was not familiar with that place and he retained her there about 7/8 hours. He also gave beatings to her when she was raising alarm. He had also maintained physical relationship with her at his maternal uncle's house against her wishes. He also called his mother there when he came to know that police is chasing him. She has only one brother. When she was at the house of mama of accused, she was threatened by the accused that in case she will disclose anything to the police against him, he will kill her brother. In the night at about 1.00 or 2.00 am police reached at the house of his mama but accused had run away from there and she met the police. At that time she did not state correct facts to the police because she was under pressure and advice of the accused, so she made different statement which was in the favour of the accused. Accused raped her against her wishes.
14. PW11 SI Manish Kumar is the IO of the case who conducted the investigation of this case and proved the memos etc. FIR No.: 61/2009 7/18
15. PW12 ASI Kusum Lata is the second IO of the case who stated that on 6.5.2009 she was posted at police station Civil Lines. She moved an application for remedical of prosecutrix before Ld. MM but same was dismissed by Ld. MM. She also received the date of birth of the prosecutrix from MCD and proved the same as mark A. Medical Witnesses :
16. PW2 is Dr. Akash Jhanjee, Specialist Forensic Medicine, Aruna Asaf Ali Hospital, Delhi who examined Rohit and proved his MLC as Ex. PW2/A.
17. PW4 is Dr. Anubha CMO, Aruna Asaf Ali Hospital who examined prosecutrix and prepared her MLC and proved the same as Ex. PW4/A.
18. PW5 is Dr. Ruby Kumari, CMO Aruna Asaf Ali Hospital who examined accused Rohit and prepared his MLC and proved the same as Ex.PW5/A.
19. PW6 is Dr. Ved Prakash, Sr. Residents, Surgery, Aruna Asaf Ali Hospital who proved the opinion given by Dr. Shashikant Aggarrwal on MLC as Ex. PW5/B.
20. PW13 Dr. Sarita Dheeraj, Senior Resident Gynaecologist, Aruna Asaf Ali Hospital who stated that patient was referred from casualty for Gynae examination but prosecutrix refused for her per vaginal examination. She made her endorsement on her examination and FIR No.: 61/2009 8/18 proved the same as Ex.PW13/A.
21. Statement of accused u/s 313 Cr. P.C was recorded wherein he denied the case of the prosecution and stated that he is innocent and he has been falsely implicated in this case.
22. I have heard Ld. defence counsel for the accused and Ld. APP for the State and have carefully perused the record. CONCLUSION:
23. In the present case, the father of the prosecutrix who is also complainant has been examined as PW1. He stated that on 25.4.2009 he alongwith his wife and daughter i.e. prosecutrix aged about 14 years had gone to one of their relatives at Club Road, Civil Lines at about 2.30 pm. His daughter received a phone call at about 4.00 pm on her mobile phone and while talking she went outside of the house. Thereafter she did not return back. His daughter was on friendly term with accused Rohit. He searched for his daughter at various places but no clue could be found. Thereafter he suspected accused Rohit and lodged his report Ex. PW1/A to the police. As per the complainant, the prosecutrix went out of the house of his relative on 25.4.2009 of her own at about 4.00 pm but it seems that for whole one day, the father of the prosecutrix did not lodge any report with the police and it was only on 26.4.2009 at about 10.00 am in the morning that he lodged his report with the police. Why the complainant waited for such a long time and did not lodge report for FIR No.: 61/2009 9/18 missing of his daughter with the police, for this no explanation is forthcoming from the prosecution. Thus, there is delay of 12 hours in registration of FIR which has gone unexplained.
24. As per the prosecution, the date of birth of the prosecutrix is 18.8.1994 and in this regard the prosecution has filed the date of birth certificate Ex. PW15/A in the court. PW15 is the record clerk from the MCD, Registrar Birth & Death office. He stated that as per the record, a female child was born to Sh. Aslam Khan and Smt. Tabasum on 18.8.94. The date of birth has been registered on 22.8.1994. He stated that in their record the name of female child is not mentioned. The name has been added later on by the party. In the birth register Ex. PW15/B also there is no mention of child name. In Ex. PW15/A the name of child has been added later on by the party as per PW15. As per Ex. PW15/A, the number of live births to Sh. Aslam Khan and Smt. Tabasum is mentioned as two. Thus, before the birth of the female child on 18.8.1994, two children were born to said Aslam Khan and Smt.Tabasum but as per the prosecutrix in her statement u/s 164 Cr. P.C. given to Ld. MM she has stated that apart from her, she is having one elder brother and they are total five members in her family.
25. Ld. Defence counsel argued that there is possibility that the date of birth certificate of the younger child has been given by PW1 in order to show that the prosecutrix is of 14 years of age when in fact she FIR No.: 61/2009 10/18 was more than that and it is only due to this reason that the complainant has added the name of the prosecutrix also on the birth certificate later on. Submission of the Ld. Defence counsel bears force and it cannot be ruled out that instead of prosecutrix, the birth certificate of younger child has been given by complainant to the police in order to show that the prosecutrix was only 14 years of age at the time of commission of offence and to prove that she was minor at the time of offence. The prosecutrix herself has stated that she has one elder brother which means that she is at number two but as per the birth certificate, she is number three child born to her parents and, therefore, there is every possibility that instead of prosecutrix, the birth certificate of the younger female child has been given by the father of the prosecutrix to the police officials.
26. The prosecutrix in the present case has been examined as PW3 and at the time of her examination in the court in October2010 she has given her age as 16 years. The incident took place in April, 2009. According to the prosecutrix, she was 14 years old at that time only. In her statement u/s 164 Cr. P.C. given to Ld. MM, the prosecutrix has stated her age as 14 years 8 months. Prosecutrix stated that she knows the accused present in the court who was living in front of their house. She stated that whenever she went to the roof of her house, accused used to make passes at her. He requested her to be his friend but she refused. Thereafter accused started following her. She asked the accused not to FIR No.: 61/2009 11/18 chase her but accused did not stop. One day she went to the house of her aunt, accused also reached there following her. PW1 who is father of the prosecutrix has nowhere stated that accused also followed them or reached there at the house of aunt of the prosecutrix. PW3 has further stated that accused collected her mobile number from her friend and called her. She refused to come out from the house of her aunt but accused threatened her and stated that he will kill her family members and due to the fear she came out. As per the prosecutrix, she did not disclose this fact to anybody that she is receiving threatenings calls on her mobile phone. PW1 father of the prosecutrix also has not stated any such thing that he saw the prosecutrix under fear or some pressure when she received a call on her mobile. According to PW1, while talking on her mobile phone, the prosecutrix went out of the house. The prosecutrix is not a child. She is aged about 1415 years and she is living in a city like Delhi having mobile phone but despite threatening calls received by her, she has not disclosed this fact to anybody. Moreover, when she went out of the house of her aunt, she was not under fear or pressure and no such things has been deposed in the court by her father. She came out of the house of her aunt while talking on her mobile phone as per PW1 her father. If she did not like accused or was receiving threatening calls from the accused, then why she received the phone call of the accused is not explained by her. She has further stated that accused met her near park FIR No.: 61/2009 12/18 and she asked him what he wants from her and he told her that he wants to marry her. Accused caught hold of her hand. She replied in negative. Thereafter accused took her to the house of his friend at Pratap Bagh. From the area of Civil Lines, accused took the prosecutrix to the house of his friend at Pratap Bagh but it seems that during the way the prosecutrix did not raise any noise or made any effort or shouted for help nor called anybody i.e. her parents or her relatives or police on her mobile that she was taken by the accused under threats or accused had kidnapped her. She has further stated that she was detained there for about one day and accused maintained physical relationship with her against her wishes. It may be mentioned that the fact that accused maintained physical relations with her has nowhere been stated by the prosecutrix in her statement u/s 164 Cr. P.C. The prosecutrix has stated that she was taken to the house of the friend of accused on 25.4.2009 and remained there from 5 p.m. to 5 p.m. next day i.e. 26.4.2009 but it seems that at that time also the prosecutrix did not raise any noise nor she cried for any help. According to the prosecutrix, thereafter accused took her to the house of his maternal uncle and he kept her there for about 7/8 hours. She stated that accused also gave beatings to her when she was raising alarm but in the MLC of the prosecutrix proved on record as Ex. PW4/A and Ex. PW13/B, there is no fresh external injury visible as opined by doctor. This testimony of the prosecutrix is in clear contradiction to the statement given to Ld. MM u/s FIR No.: 61/2009 13/18 164 Cr. P.C. In her statement u/s 164 Cr. P.C., the prosecutrix has stated that she went herself with the accused and she called the accused on her mobile phone. Thereafter when accused refused to take her, she threatened him that she will commit suicide. She further stated in her statement u/s 164 Cr. P.C that they went to the house of maternal uncle of the accused and there they wanted to commit suicide but in the meantime mother of the accused came and pacified them and also asked both of them to accompany her to the police station on the next date. In her statement u/s 164 Cr.P.C., the prosecutrix even did not show her inclination to go to her parents house. The prosecutrix was taken for her medical examination before the doctors where also she had stated that she went with the accused with her own will and also admitted to have sexual intercourse with the boy during that time but subsequently the prosecutrix refused for her medical examination before the doctors.
27. So far as the date of birth or the age of the prosecutrix is concerned, then in view of the submission of the Ld. defence counsel, the date of birth certificate of the prosecutrix does not inspire any confidence and it cannot be said that prosecution has been able to prove the age of the prosecutrix as 14 years. The conduct of the prosecutrix also does not inspire confidence as she has given her different age at different place i.e. before IO, doctors, in her statement u/s 164 Cr. P.C. and in the court. Though in the court she has fully supported the case of the prosecution FIR No.: 61/2009 14/18 but in her statement u/s 164 Cr. P.C., the prosecutrix has clearly stated that she went with the accused on her own and she was in love with him and it was she who called the accused and also threatened him that if he will not take her with him, she will commit suicide. In her statement in the court, the prosecutrix has also stated that she has only one brother and in her statement u/s 164 Cr.P.C. she has stated that there are total five members in her family which means that she is at number two and in such circumstances, the possibility that the date of birth certificate of the younger sister has been given in the court by the father of the prosecutrix cannot be ruled out. Prosecutrix has denied the suggestion that she never called the accused on his mobile. As per the father of the prosecutrix, the prosecutrix was on friendly terms with the accused and used to talk on telephone. As per PW3 she never called the accused and it was accused who used to call her. She did not tell this fact to her parents. PW1 father of the prosecutrix himself has stated that accused and his daughter used to talk on telephone. The prosecutrix in her cross examination has admitted that she did not raise any alarm between the way from park to the house of the friend of the accused nor she requested any public person to help her or relieve her from the clutches of the accused. She also did not raise any alarm at the house of the friend of the accused. The conduct of the prosecutrix shows that she was a consenting party to the whole incident. Prosecutrix further stated that someone advised her not to go for medical FIR No.: 61/2009 15/18 examination whereas in fact she wanted to undergo medical examination to prove that she was raped by the accused. From the record it is clear that prosecutrix refused for her medical examination which falsifies the claim of the prosecutrix. Neither there is any medical report in this respect nor there is FSL result to prove the factum of the presence of semen of the accused on the clothes of the prosecutrix in order to substantiate the claim of rape. Thus, so far ingredients of section 376 IPC are concerned, the prosecution has failed to prove the same against the accused.
28. Reliance is also placed on 2006 CRI. L.J. 3732, 2006 CRI.L.J. 2556, CRI.L.J. 2457 and 2006 CRI. L.J. 1500.
29. So far as the kidnapping or the forceful abduction to have sexual intercourse with the prosecutrix is concerned, then from the age of both the parties, it is clear that prosecutrix though she was a minor but was capable to understand the consequences of her act. In her statement u/s 164 Cr. P.C. she has stated that she told the accused very clearly that if he will not take her, she will commit suicide. Ld. APP for the state argued that statement of the prosecutrix has not been proved on record by the prosecution and therefore, it cannot be taken into consideration. He argued that Ld. MM has not been examined by the prosecution. On the other hand, Ld. defence counsel argued that prosecution has not proved statement of the prosecutrix recorded u/s 164 Cr. PC. and Ld. MM has not FIR No.: 61/2009 16/18 been made a witness in the case but prosecutrix has been confronted with her statement in her cross examination and she has admitted to give her statement to Ld. MM. u/s 164 Cr. P.C. The prosecutrix in her cross has admitted her statement given to the Ld. MM u/s 164 Cr. P.C. and same has been proved on record as Ex. PW3/DA. Ld. defence counsel argued that in every case even if the child is small and her statement u/s 164 Cr. P.C. is recorded by the Ld. MM then same is relied upon in the court but in the present case since the statement does not go in favour of the prosecution, therefore, the prosecution intentionally is taking the plea that the prosecutrix is minor and therefore, her statement recorded u/s 164 Cr. P.C. is of no use. It may be mentioned that statement u/s 164 Cr. P.C. is recorded before the court. If the statement of the prosecutrix u/s 164 Cr. P.C. cannot be relied upon as she being a minor then her statement recorded in the court also cannot be taken into consideration being a minor. Moreover, it is only filmsy excuse as even in case where the prosecutrix is of 56 years of age, the statement u/s 164 Cr. PC. is relied upon by the prosecution invariably if that supports the case of the prosecution. It seems that this excuse has been taken by the prosecution for the reason that in her statement, the prosecutrix has not supported the case of the prosecution. The prosecutrix is living in city like Delhi. She is 6th class pass and she has also done English Speaking course and from her statement u/s 164 Cr. P.C., it is clear that both the prosecutrix as well FIR No.: 61/2009 17/18 accused were also aware about the consequences of their acts but the prosecutrix insisted the accused due to which accused took her away. The prosecutrix was the consenting party to the whole incident and, therefore, in such circumstances, the accused cannot be held guilty for kidnapping her with a view to compel her to marry against her will.
30. In view of abovesaid discussion, prosecution has not been able to prove its case against the accused beyond the shadow of doubt. Accused is acquitted of the offence. He is on bail. In view of the new amended section 437A of Cr.P.C., the bail bond already furnished by the accused is extended for the period of 6 months with the condition that he shall appear before the Hon'ble High Court as and when such notice is issued in respect of any appeal filed by the state against the judgement within a period of 6 months. Case property be confiscated to the state after the expiry of period of revision/appeal, if any. File be consigned to record room.
(MADHU JAIN) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi.
Announced in the open court today i.e. on 12.1.2011. FIR No.: 61/2009 18/18