Delhi District Court
State vs . on 28 November, 2011
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.42/11
FIR NO. 1122/07
U/S 376/363/366 IPC
PS Sultan Puri
Unique Case ID No. : 02404R0483222007
State
Vs.
Nem Chand s/o Sh. Dhanna Ram
r/o C9/193, Sultan Puri, Delhi.
Permanent address :
Village Mandawar Mahua, PS Bandi Kui,
District Dausa, Rajasthan.
Date when committed to the court of Sessions :20.09.2007
Date when case reserved for judgment : 21.11.2011
Judgment pronounced on : 28.11.2011
JUDGMENT:
1. The case of the prosecution in brief is that on 07.07.2007, the prosecutrix along with her sister in law came to the PS and informed W/SI Sanjeeta that on the night of 05.07.2007, she was taken by two boys and she fainted and when she regained her senses at about 5 a.m, she came weeping to her house and her medical examination SC No.42/11 Page 1/17 may be got conducted and on this the W/SI got the medical examination conducted of the prosecutrix and thereafter the W/SI recorded the statement of the prosecutrix.
2. As per statement of the prosecutrix, she was residing at the address given in the statement (name and address withheld for secrecy reasons) along with her parents and on the night intervening between 4th and 5th July, 2007, at about 1 a.m, she had come out of her house for call of nature and two boys were standing outside who came near to her, out of which name of the one boy was Nem Chand whose shop was in front of her house and he was doing tailoring business and that she could identify the other boy, if produced before her, and the said other boy put a knife at her neck and the said Nem Chand put a handkerchief over her mouth due to which she fainted and when she regained her senses, her clothes were found tied and she was lying in the room situated below the shop of Nem Chand and said Nem Chand was standing outside the shop and she cried loudly and came to her house and narrated the incident to her mother and that her brother gave the information to the police and out of fear, she had told the police at that time that no sexual abuse had taken with her and thereafter she narrated the incident to her sister in law (Brother's wife) and she had come to the police along with her sister in law and she did not know as to when she was taken by the said two boys, what happened with her.
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3. On the basis of the said statement, the FIR u/s 363/376/506 IPC was got registered and during the investigation, rough site plan was got prepared at the instance of the prosecutrix, statements of the witnesses were recorded and the exhibits preserved during her medical examination were seized and accused Nem Chand was arrested in the case whose medical examination was also got conducted and the exhibits preserved by the doctor at the time of his medical examination were also seized and as the prosecutrix could not tell about the description of the other accused, he could not be traced out and thereafter statement of the prosecutrix u/s 164 Cr.PC was got recorded on 23.07.2007.
4. As per statement of the prosecutrix u/s 164 Cr.PC, on the night intervening between 4th and 5th July, 2007, she was sleeping at the roof of her house and at about 1 a.m, when it started raining, she came down after taking her bed and thereafter she had gone for a call of nature to the bathroom where one Nemi Chand and another boy were standing and Nemi Chand put a handkerchief on her mouth due to which she became unconscious and when she regained her consciousness she found herself in the room of said Nemi Chand where he was also present, who kissed at her cheek and fondled her breasts forcibly and thereafter she again fainted and that by the time she regained her consciousness, she did not know as to what Nemi Chand had done with her during the said time and she regained her SC No.42/11 Page 3/17 consciousness at about 5 a.m and she came back to her house and her parents had beaten her and inquired as to where she had gone to which she replied that Nemi Chand had forcibly lifted her and taken away. Thereafter her parents called her brother who gave the information to the police at phone number 100 and she did not know that during the said time when she was unconscious what said Nemi Chand had done with her.
5. During further investigation Section 354 IPC was added and as the prosecutrix was illiterate having no age proof, her age was got determined by way of ossification test and charge sheet was filed and subsequent to the same, the ossification test report with regard to age of the prosecutrix and FSL result were placed on the record.
6. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide his order dated 11.10.2007, framed charge against the accused u/s 363/366/376 IPC, to which he pleaded not guilty and claimed trial.
7. The prosecution, in order to prove its case, has produced as many as 18 witnesses, relevant of which have been discussed below.
8. The statement of the accused u/s 313 Cr.PC was recorded wherein he pleaded his innocence and denied the incriminating evidence against him as false and did not prefer to lead any defence SC No.42/11 Page 4/17 evidence.
9. I have heard Ld. APP for the state, Sh. Abhishek Kaushik, Advocate for the accused and perused the record.
10. PW18 Inspr. Sanjeeta, the IO of the case deposed besides the said investigation conducted by her that as per ossification test, the age of the prosecutrix has been opined as 1416 years.
11. PW17 SI Sewa Singh deposed that on 05.07.2007, on receipt of DD No.17B Ex.PW12/A, he along with Ct. Kripal reached the spot where he found the prosecutrix and her brother present there and whatever they told him, he mentioned in his arrival entry at the PS because at that time the prosecutrix had not levelled any allegations against anyone so he filed the said DD on the said day and in his cross examination, he found the prosecutrix and her sister in law and the prosecutrix told him in her statement that nobody had teased her or no mis happening had happened with her on the intervening night and her statement was duly supported by her sister in law present there.
12. PW16 was the concerned Magistrate who recorded the statement of the prosecutrix u/s 164 Cr.PC which is Ex.PW1/C. PW15 Ct. K.N. Gaur is the witness of the arrest of the accused and preparation of rough site plan by the IO. PW14 HC Ramesh Kumar SC No.42/11 Page 5/17 is the MHC(M). PW13 W/Ct. Rajesh took the prosecutrix to SGM hospital and seizures of the exhibits preserved by the doctor were taken in her presence. PW12 Ct. Sunil proved the DD No.17B as Ex.PW12/A. PW11 was the duty officer who proved the copy of FIR Ex.PW11/A. PW9 Ct. Narender deposited the exhibits with the FSL. PW7 Vijay Kumar and PW8 Raj Kumar are the persons of the locality who deposed that on 05.07.2007, when they woke up in the morning, they saw public persons giving beatings to accused Nem Chand present in court and on inquiry, they came to know that in the night, accused Nem Chand had taken a girl namely the prosecutrix, in his room after making her unconscious and she was unaware as to what Nem Chand had done with her and in their cross examination, they deposed the time of the said beatings given to Nem Chand as 5.30 or 6 a.m and 7 a.m respectively and they did not know the names of the persons who were beating accused Nem Chand and they admitted that they had no personal knowledge of the incident. PW6 Dr. Brijesh Singh examined the accused vide MLC Ex.PW6/A and regarding his capacity to perform act of sexual intercourse. PW5 Dr. Binay Kumar prepared the MLC of the prosecutrix Ex.PW3/A. PW3 Dr. Renu Gupta was the Gynecologist who internally examined the prosecutrix vide MLC Ex.PW3/A and deposed that there was no external injury to the person of the prosecutrix and hymen was absent and in her cross examination, the SC No.42/11 Page 6/17 doctor replied that had it be a new tear of the hymen, it could have been noticed at the time of examination of patient and she could not tell as to what was the age of tear of hymen.
13. PW10 is the mother of the prosecutrix who deposed that at the time of the incident, her daughter was aged about 1415 years old and she did not remember the date and month of the incident and she was sleeping with her family including the prosecutrix inside the above mentioned house and it was drizzling on that night and she woke up at about 2 a.m and found her daughter, the prosecutrix, missing from bed and the same was told to her daughter in law and thereafter she searched for the prosecutrix with her daughter in law and at about 5 a.m she found her daughter coming in the gali in weeping condition, in perturbed condition and did not tell anything to her and the prosecutrix had told her that someone had taken her by putting clothes on her mouth but she did not tell anything about the name of the said person and thereafter she took the prosecutrix to PS Sultan Puri where a lady police officer recorded her statement and the prosecutrix was also medically examined and she was cross examined on behalf of the State by Ld. Addl. PP wherein she admitted that she had stated to the police in her statement that prosecutrix had told her that accused Nem Chand, present in court, who was running a tailoring shop, had taken the prosecutrix to his room and confined there. She admitted that accused Nem Chand was SC No.42/11 Page 7/17 beaten by the public in the morning. She admitted that date of incident was the night intervening between 4th and 5th July, 2007. In her cross examination, the mother replied that prosecutrix was sleeping with her on the same bed on the night of incident and that her nephew, her brother in law, her elder daughter in law were present at that time and that she did not accompany her daughter, the prosecutrix, to the PS but reached there later on when the statement of the prosecutrix was already recorded.
14. PW4 Smt. Bhanwari Devi deposed that on the said night, they were sleeping on the terrace of her house and mother of the prosecutrix removed the bedding etc as it started raining at about 1 or 2 a.m and the prosecutrix at that time, was living in the house opposite to her house across the road and an alarm was raised that prosecutrix had gone missing and that she and other residents of the gali searched for the prosecutrix but could not find her and in the morning, at about 5 a.m, the sister in law of the prosecutrix located the prosecutrix in the room occupied by the accused on hearing the cry of the prosecutrix and that she knew accused Nem Chand as he also lived in the neighbourhood and she was present when the prosecutrix was recovered from the room of the accused.
15. PW2, the sister in law of prosecutrix deposed that on 05.07.2007, she was present in her jhuggi which was at a little SC No.42/11 Page 8/17 distance from house of her parents in law and in the night intervening between 4th and 5th July, 2007, at about 3 a.m., her mother in law came to her jhuggi in search of the prosecutrix and she also joined her in search of the prosecutrix and at about 5 a.m, they heard cries of the prosecutrix and went towards the house of Nem Chand from where prosecutrix was seen coming out and Nem Chand was also standing outside his house at that time and they brought her to their house and her husband called the police and prosecutrix was scared at that time and therefore, she could not narrate the incident to the police. She further testified that after 2 days, they again went to the PS and statement of the prosecutrix was recorded and she had also signed the said statement which is Ex.PW1/A and bears her signature at point B and thereafter the prosecutrix was taken to the hospital where her clothes were seized vide memo Ex.PW1/D. In her cross examination on behalf of the accused, she replied that in the adjoining area the people in the jhuggies used to sleep in open and some slept inside the room and at the time of the occurrence there was a house being constructed opposite the house of her mother in law and no person was sleeping outside because of the construction. She further replied that in the morning when they were standing in the gali then the prosecutrix came out of the shop of accused and was crying and accused was standing in the gali at that time.
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16. Coming to the deposition of the prosecutrix who appeared as PW1, who deposed that on 07.07.2007, at about 1 a.m she was sleeping on the terrace with her parents when it started raining and she came down and went to answer the call of nature outside her house where two boys were standing out of which one was the accused Nemi Chand, present in court, who used to work as a tailor but she did not know the other boy and that accused Nemi Chand placed a handkerchief on her face and took her to a room behind his tailoring shop and he kissed on her cheek and fondled her breasts and thereafter she became unconscious and that she regained consciousness at about 5 a.m and at that time accused was standing outside his shop and she went away to her house and that she was beaten by her father who asked her as to where she had gone to which she replied that she had not gone voluntarily but was taken away by accused Nemi Chand and that her father called her brother who called the police and she told the police about the facts as she had deposed above and she was taken to the PS along with her sister in law where her statement Ex.PW1/A was recorded which bears her thumb impression at point A and thereafter she was taken to SGM hospital where she was medically examined and that she had pointed out the place of occurrence to the police and also pointed out towards the accused who was arrested vide memo Ex.PW1/B and Ex.PW1/C and that her statement u/s 164 Cr.PC was recorded by the SC No.42/11 Page 10/17 MM and she further deposed that her salwar kameez was seized by the police vide memo Ex.PW1/D and her vaginal swab was seized vide memo Ex.PW1/E and she identified her clothes as Ex.P1 and Ex.P2 and thereafter she was cross examined on behalf of the State by the Ld. Addl. PP wherein she admitted that the occurrence had taken place during the night intervening between 4th and 5th July, 2007 and that she could identify the second person, if shown to her. She further admitted that when the police came to her house for the first time, out of fear she told the police that no occurrence had taken place. She admitted that she came to the PS along with her sister in law on 07.07.2007. She further admitted that her statement u/s 164 Cr.PC was recorded on 23.07.2007 but she did not know if her statement was recorded by the police on 05.07.2007 and her further examination in chief was deferred at the request of Ld. Addl. PP on 30.11.2007 and in her further cross examination on behalf of the State dated 11.08.2008, it was submitted by the Ld. Addl. PP that there was no statement of the prosecutrix dated 05.07.2007 recorded by SI Sewa Singh available on judicial record or on the police file. The witness further replied that when she regained consciousness after the occurrence her clothes were in the right condition and that there was no blood or semen stains on the clothes nor she felt any pain on gaining consciousness. She further admitted that when she was unconscious accused committed rape with her. SC No.42/11 Page 11/17
17. In her cross examination on behalf of the accused, she answered that she did not tell the name of accused Nem Chand when she raised alarm and it was still drizzling when she went to answer the call of nature. She could not say that accused Nem Chand was standing in the rain as she did not see him standing in the rain and that the toilet was constructed outside her house and that other family members were also sleeping at the terrace when it started raining and that she did not tell her mother before leaving the room for the toilet and that the toilet was at a distance of 6 or 7 feet from their one room house and the other houses were adjacent with the common wall to their house. She answered that no person was outside in the gali. She further answered that shop of the accused was situated across the road but not opposite to her house and she did not notice the accused coming towards her as he had placed handkerchief on her mouth immediately after she came out of her house and she was put with a question as to whether the accused dragged her or picked her up or she walked herself from the house to the shop of the accused to which the witness remained silent for a long time and no answer was given by the witness. She could not remember after how long she lost consciousness, whether it was one minute, two minutes or five minutes of placing the handkerchief on her mouth and she again said that she lost consciousness after the accused kissed her and fondled her breast and she regained SC No.42/11 Page 12/17 consciousness at 5 a.m and then she got up and returned to her house and accused Nem Chand was outside the room when she woke up and that her father was at home and other family members were searching for her. The prosecutrix was further recalled for cross examination u/s 311 Cr.PC because in her cross examination on behalf of the Ld. Addl. PP, she uttered a single sentence that during her unconsciousness, the accused committed rape with her and in her further cross examination dated 30.05.2011, she replied that she could not tell as to whether she was dragged or was taken in lap to the place of incident as she was unconscious. She further answered that she knew accused Nem Chand prior to the incident as he was working as a tailor at a small distance from her house but she had never visited the room prior to the incident. She replied that she did not make any hue and cry when she regained consciousness in the room and when she regained consciousness, she found her wearing clothes intact. She further replied that she did not know as to whether accused had committed rape upon her during the period she remained unconscious and before becoming unconscious accused Nem Chand did not rape her. She further answered that from the room she reached directly to her house and found her parents there only and on the same day, police came to their house and she voluntarily, without any pressure, told them that nothing wrong had happened with her and after that she was produced before the SC No.42/11 Page 13/17 concerned MM where she narrated voluntarily about the whole incident. She admitted it as correct that on 11.08.2008, she gave her statement in the court at the instance of the IO by stating that accused had committed rape upon her when she was unconscious. Again she was cross examined on behalf of the Ld. Addl. PP due to her different deposition in her cross examination dated 11.08.2008 and 30.11.2007 regarding rape wherein she denied the suggestion as wrong that she had given her statement in the court on 11.08.2008 voluntarily or she deposed voluntarily that accused Nem Chand had committed rape upon her during the period she was unconscious.
18. From the bare reading of the deposition of PW10, the mother of the prosecutrix and the prosecutrix as well as deposition of PW2, sister in law of the prosecutrix, it is well established on the record that as to what happened in the night of 4th and 5th July, 2007 was differently deposed by the said three witnesses. Further, in her examination in chief, no allegation towards her rape and in her cross examination on behalf of the State she alleged her rape by the accused during the period of her unconsciousness and again in the cross examination on behalf of the accused she denied the said fact of rape with her and again in her cross examination on behalf of the State, she denied the suggestion to have voluntarily deposed about the rape in her said previous deposition dated 11.08.2008. If we admit the story of the prosecutrix as correct, for the sake of SC No.42/11 Page 14/17 argument only, that accused Nem Chand put handkerchief on her mouth due to which she became unconscious and that was why she did not know as to whether she was dragged or picked up by the accused to be carried to the said room of the incident, for the simple reason that she was unconscious, then it would amount to contradiction in term to swallow her story which she told in her cross examination on behalf of the Ld. Addl. PP dated 11.08.2008 that she was raped by the accused during the time she remained unconscious. What she used the term is "she woke up at 5 a.m" and not that "she regained the consciousness at 5 a.m" and thereafter she straight away went to her house where admittedly she was beaten by her father who has not been produced in the witness box. Her clothes were in tact, as per her own admission. Which time is to be believed regarding her becoming unconscious i.e at the time when handkerchief was allegedly put on her mouth by the accused or at the time when she was kissed and her breasts were fondled by the accused. In both the circumstances, the said story is not trustworthy at all. Moreover, the medical evidence established beyond doubt that there was no fresh injury on any part of her body nor any semen or blood was detected on her clothes or in her vaginal swab and the hymen was found torn and even the doctor could not give the age of the tearing of the hymen and in these circumstances, it seems to be a simple case of affairs between the prosecutrix and the accused and SC No.42/11 Page 15/17 when she was caught red handed on the night when it was admittedly raining at that time, she, after two days of the incident, implicated the accused in the present case. Hence, the prosecution has miserably failed to establish the case of rape with the prosecutrix, in any manner whatsoever.
19. Regarding the offence u/s 363 & 366 IPC, in the said circumstances, it is doubtful if she was kidnapped or abducted at all by the accused and circumstances are tilting towards the fact that she voluntarily had gone to the room of the accused without any inducement on his part. Coming to the age of the prosecutrix, which is a material issue to be decided for the said two offences as an offence u/s 363 IPC does not require any intention and it is mere "taking or enticing" of the minor that the offence is complete. The PW10, mother of the prosecutrix, made a bald statement with regard to the age of the prosecutrix as 1415 years at the time of incident and it was so deposed by the prosecutrix herself. Admittedly no year of birth of the prosecutrix or date of marriage of the PW10, the mother of the prosecutrix, has been established on the record by any documentary or otherwise reliable evidence. The father of the prosecutrix was not made a witness by the IO, for the reasons best known to her. The ossification test report suggested the bony age of the prosecutrix between 14 to 16 years. The law commands that report of the Radiologist with regard to bony age can have variation SC No.42/11 Page 16/17 of two years on either side and in this regard reference may be given to the judgments of the Hon'ble Supreme Court titled Jaya Mala Vs. Home Secretary reported as AIR 1982 SC 1297, State of Rajasthan Vs. N.K. reported as 2000 (5) SCC 30 and Ram Suresh Singh Vs. Prabhat Singh reported as 2009 (6) SCC 681.
20. From this point of view, the prosecutrix may be of 12 years of age or 18 years of age. If there are two evidence on the record regarding the same fact and one is favourable to the accused, the said evidence favourable to the accused must be accepted. In the circumstances, the prosecution has again miserably failed to establish even the offences u/s 363 & 366 IPC and the result is that accused is given benefit of doubt for all the said offences and is acquitted of the charges u/s 363/366/376 IPC. His PB and SB are hereby discharged. The file be consigned to the Record Room. (Announced in the open court on 28.11.2011) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.42/11 Page 17/17