Delhi District Court
Fir No:881/07; Ps Nand Nagri; U/S ... vs . Vijay Kumar & Others on 28 April, 2011
1 FIR NO:881/07; PS NAND NAGRI; U/S 363/366/376/506/34 IPC ; STATE VS. VIJAY KUMAR & OTHERS IN THE COURT OF SH. B.S. CHUMBAK:ADDL. SESSIONS JUDGE DELHI Case ID Number 02402R0013272009 Session Case No. 35/09 Assigned to Sessions 11/02/09 Arguments heard on 28/04/11 Date of order 28/04/11 FIR NO. 881/07 Police Station NAND NAGRI Under Section 363/366/376/506/109/34 IPC. Out come of the judgment ACQUITTED STATE VS 1. VIJAY KUMAR S/O OM PRAKASH R/O H.NO. B-3/337 PANCHWATI COLONY LONI GHAZIABAD UP 2.NARESH S/O BUDHSEN R/O H.NO. B-3/278 PANCHWATI COLONY LONI GHAZIABAD UP 3. INDERPAL S/O BUDHSEN R/O H.NO. B-3/255 PANCHWATI COLONY, LONI, GHAZIABAD, UP Present: Sh. S.K. Dass Ld. Addl. PP for state. Sh. M.R. Chanchal Advocate on behalf of all the accused. JUDGMENTPage 1/21 2
FIR NO:881/07; PS NAND NAGRI; U/S 363/366/376/506/34 IPC ; STATE VS. VIJAY KUMAR & OTHERS
1. On 10.09.07 a case u/s 363/366/376/506/34 IPC was registered at PS Nand Nagri vide FIR no. 881/07 on the basis of complaint filed by Dolly d/o Dharampal r/o H.No.M-503, Amar Colony, Gokul Pur, Delhi against Vijay Kumar s/o Om Prakash r/o house no. B-3/337, Panchwati Colony, Ghaziabad, UP, Naresh s/o Budhsen r/o B-3/278, Panchwati Colony, Ghaziabad, UP and Inderpal s/o Budhsen r/o Panchwati Colony, Loni Border, Ghaziabad UP.
2. Brief facts arising out of this case are that the present case was registered on the basis of complaint filed by Dolly d/o Dharampal in her statement stated as under :
"On 02.06.07 at about 9 a.m when she was going to her school, accused Vijay, Naresh, Anil and one another person, all were known to her met her in a car at Gol Chakar in the way to school. They all forcibly took her to Yamuna Bazar Mandir in that car. They all took her photographs without her consent and forcibly compelled her to change her clothes and all the accused took her photographs in wedding dress. They all extended threat of killing her in case she would refuse to wear the dress and to got her photographs. Her signatures were also obtained forcibly on some blank papers and after taking her photographs in wedding dress they got her clothes changed and left her at the place from where she was taken by them i.e at Gol Chakar from there she went to his house and had not narrated this incident to her family members.
Again on 19.06.07 when she was going to her school accused Naresh, Inder Pal, Vijay and Anil met her in an Indica car near Durga Puri Chowk and forcibly took her to Ghaziabad. She raised alarm but they stopped her to raise Page 2/21 3 FIR NO:881/07; PS NAND NAGRI; U/S 363/366/376/506/34 IPC ; STATE VS. VIJAY KUMAR & OTHERS alarm while extending threat of killing her. They all took her in an office and obtained her signatures on some documents without her consent and they again left her at her house at 5 p.m but she has not narrated this incident to her parents due to fear.
Again on 17.7.07 when she was going to school at about 7 a.m all the above named accused persons lifted her from near MIG Flat and took her to Nand Nagri and confined her in a house for about 2/3 days. Thereafter on 19.7.07 they all were took her to the house of their relative at Meerut, accused Vijay forcibly committed sexual intercourse with her. Her naked photographs were also taken by accused Vijay.
On 27.7.07 all accused took her at Tis Hazari Court and her signatures were also obtained on one paper wherein it was written that her father used to beat her on petty matters. When they all let her free then she left the spot on the pretext of urination and had left for her house. Her father lodged a missing report at PS Nand Nagri, thereafter she was taken to PS. She gave false statement at PS. She was also directed to got medically examined but she refused. On 8.9.07 she filed a complaint and on the basis of her complaint FIR was registered. Statement u/s 164 Cr.P.C was recorded on 05.02.08."
3. After registration of the case investigation was initiated. Statement of witnesses were recorded, prosecutrix was got medically examined by WCT. Komal at GTB hospital. Statement of prosecutrix was recorded wherein she Page 3/21 4 FIR NO:881/07; PS NAND NAGRI; U/S 363/366/376/506/34 IPC ; STATE VS. VIJAY KUMAR & OTHERS stated all the facts which were stated by him in the complaint. Thereafter, investigation of this case was assigned to SI Lal Sahab on 10.11.07. All the accused namely Vijay Kumar, Naresh, Inderpal were formally arrested as they all were directed to be enlarged on anticipatory bail. Statement of prosecutrix u/s 164 Cr.P.C was got recorded. During course of investigation on 25.02.08 accused Vijay produced marriage registration certificate, voter list and certificate showing the date of birth of Dolly as17.07.90 Exhibits were sent to FSL and after completion of all the necessary investigation challan u/s 173 Cr.P.C was presented in the court of Ld. MM.
4. Ld. MM after taking cognizance for the offence supplied the copies of the challan to all the accused as provided u/s 207 Cr.P.C and committed the case to the court of Sessions and on turn allocated to this court for trial. Thereafter case was fixed for arguments on charge.
5. After hearing arguments and on perusal of the material placed on record a separate charge for the offence u/s 376 IPC was framed against accused Vijay Kumar and a charge for the offence u/s 363/366/376/506/109/34 IPC Page 4/21 5 FIR NO:881/07; PS NAND NAGRI; U/S 363/366/376/506/34 IPC ; STATE VS. VIJAY KUMAR & OTHERS was framed against accused Vijay Kumar, Naresh, and Inderpal to which they pleaded not guilty and claimed trial, thereafter case was fixed for prosecution evidence.
6. Ms. Dolly complainant appeared as (PW1), Dharampal father of prosecutrix as (PW2), Wct. Komal as (PW3), Ct. Ravinder Kumar as (PW4), Pradeep Kumar as (PW5), ASI Bhupender Singh as (PW6), Sh. Sailender Malik, Ld. MM as (PW7), ASI Sona Ram as (PW8), Dr. Shruti, Sr. Resident OBS & Gyne GTB hospital as (PW9), Jitender Singh as (PW10), Vijender Yadav as (PW11) and Retired SI Lal Sahab as (PW12), thereafter no PW was left to be examined, therefore, prosecution evidence was closed.
7. Brief testimony of all the PW's are as follows:
(i) She stated all the facts which were stated by her in her complaint Ex. PW1/A which has already been discussed.
During her cross examination she admitted that many persons were available at Gol Chakar from where she was lifted by the accused persons. She also Page 5/21 6 FIR NO:881/07; PS NAND NAGRI; U/S 363/366/376/506/34 IPC ; STATE VS. VIJAY KUMAR & OTHERS admitted that marriage certificate Ex.PW1/DA bears her photograph and signature. Original marriage registration certificate is mark X which also bears her name, father's name and address and also the name and address of accused Vijay. She also admitted that sweets were also distributed by the accused persons after solemnization of the marriage and she had also eaten sweet. She also admitted that many public persons met her in the way while going to Meerut at the place where she was sexually assaulted. She also admitted that she had taken dinner at Meerut in that house and also took bath during her stay. She also stated that she had not seen any other accused persons except Vijay at Meerut.
She also admitted that she was taken to Tis Hazari Court in a chamber of an Advocate but she cannot tell the chamber number, nor she can tell the name of Advocate. She has not narrated this incident to Advocate and she had also not narrated this incident to her parents as well as to other public persons when she returned to her house from Tis Hazari Court as well as about the earlier incidents but she denied the suggestion that factum of solemnization of her marriage with accused Vijay was already known to her parents but they Page 6/21 7 FIR NO:881/07; PS NAND NAGRI; U/S 363/366/376/506/34 IPC ; STATE VS. VIJAY KUMAR & OTHERS refused to accept this marriage due to the reason that accused belongs to SC community. She also admitted that before going to Meerut it was in her knowledge that her marriage had been solemnized with Vijay and was also got registered in the office of Registrar at Ghaziabad. She also admitted that she had not filed any case for declaring the marriage solemnized with accused Vijay as null and void. Rest of her testimony is reiterated by her as submitted by her during examination in chief.
(ii) PW2 deposed that on 19.7.07 he lodged a missing report of her daughter Dolly at PS Nand Nagri. On 27.7.07 I.e about eight days after lodging the missing report she returned to her house and told him with regard to factum of her kidnapping on 2.6.07 from near MIG flat Gol Chakar by Vijay, Naresh, Anil and one another person. She narrated about the incident on 19.6.07. He further stated that her daughter told her that on 27.7.07 she had come from Tis Hazari to her house at Loni border and told that she had gone to her friend's house. He further stated that only on 12.10.07 he took her to PS and got her statement recorded. Her medical examination was got conducted at GTB hospital and he got his statement recorded. Page 7/21 8 FIR NO:881/07; PS NAND NAGRI; U/S 363/366/376/506/34 IPC ; STATE VS. VIJAY KUMAR & OTHERS During his cross examination he admitted that when he took her daughter Dolly to PS on 27.7.07 she had refused for conducting her medical examination. He also admitted that he has not filed any case to declare the marriage between Vijay and Dolly as null and void.
Rest of his testimony is reiterated by him as submitted by him during examination in chief.
(iii) PW3 deposed that on 12.10.07 she took Dolly (PW1) to GTB hospital for her medical examination. After her medical examination doctor handed over her one sealed pullanda and one sample seal which she handed over to IO. IO seized the same vide memo Ex.PW3/A bearing her signature at point A.
(iv) PW4 deposed that on 25.10.08 as per direction of IO he took two sealed pullanda and one sample seal from MHCM Nang Nagri vide RC no.131/21 and deposited the same in the office of FSL Calcutta and handed over all the receipts of the same to MHCM. He further stated that till the pullanda remained in his possession these were not intact. Page 8/21 9 FIR NO:881/07; PS NAND NAGRI; U/S 363/366/376/506/34 IPC ; STATE VS. VIJAY KUMAR & OTHERS
(v) PW5 deposed that on 19/6/07 he saw accused Vijay in an Indica Car at Durga Puri Chowk and prosecutrix Dolly was standing there in school uniform. Accused Vijay forcibly pushed Dolli in that Indica car. Two/three other persons were also with accused Vijay. One Anil was also present with them but he failed to explain whether other accused persons present in the court were present with accused Vijay on that day or not.
After seeking permission from the court Ld. Addl. PP for state cross examined the witness wherein he denied the suggestion that he had told to the police that accused Inder Pal was also with accused Vijay in the Indica Car along with another person who were residing in the area of his colony and thereby confronted from his statement Ex.PW5/A from portion A to A wherein it was so recorded but he denied the suggestion that accused Inderpal was with accused Vijay and Naresh on the day of incident.
During his cross examination by Sh. M.R. Chanchal ld. counsel on behalf of accused he admitted that Dharampal and accused persons both are his neighbourers.
Page 9/21 10 FIR NO:881/07; PS NAND NAGRI; U/S 363/366/376/506/34 IPC ; STATE VS. VIJAY KUMAR & OTHERS Rest of his testimony is reiterated by him as submitted by him during examination in chief.
(vi) PW6 deposed that on 19/7/07 DD No.7A was marked to him for investigation. He searched for the missing girl Dolly (PW1) but she could not be traced. He informed the missing persons squard and PCR regarding the factum of missing of Dolly. He also flashed wireless messages to this effect. He further deposed that on 27/7/07 prosecutrix Dolly came to police station along with her father but she was perplexed on that day, therefore she left the PS without making any complaint.
Again on 10/9/07 prosecutrix Dolly reached at police station and handed over one complaint to SHO which was marked to him and after discussion with the senior officers FIR in this case was registered on 10/10/07. He further deposed that on 12/10/07 prosecutrix Dolly again reached at police station with her father and she was got medically examined by lady const. Page 10/21 11 FIR NO:881/07; PS NAND NAGRI; U/S 363/366/376/506/34 IPC ; STATE VS. VIJAY KUMAR & OTHERS Komal at GTB Hospital. He also corroborated the factum of handing over the sealed pullanda to him by Lct. Komal vide seizure memo Ex.PW3/A. Case property was deposited in the malkhana. Thereafter investigation of this case was assigned to SI Sahab Singh.
During his cross examination he reiterated his testimony as submitted by him during examination in chief.
(vii) PW 7 proved the factum of recording the statement of prosecutrix u/s 164 Cr.P.C.
(Viii) PW8 proved the factum of registration of the case and deposed that on 10/10/07 SHO PS Nand Nagri handed over him the complainant filed by the prosecutrix Dolly for registration of FIR and as per his direction he got the case registered vide FIR No.881/07. Original copy of FIR is Ex.PW 8/A bearing his signatures at point A. He also made his endorsement on the rukka Ex.PW 8/B. He further stated that after registration of the FIR, copy of the FIR and original rukka were sent to ASI Bhupinder Singh for investigation. Page 11/21 12 FIR NO:881/07; PS NAND NAGRI; U/S 363/366/376/506/34 IPC ; STATE VS. VIJAY KUMAR & OTHERS During his cross examination he reiterated his testimony as submitted by him during examination in chief.
(ix) PW9 is the doctor who examined prosecutrix Dolly vide MLC no. C- 6152/07. She deposed that prosecutrix Dolly was got examined by Dr. Varsha Jain who had know left the services of hospital and her present whereabouts were not known. She can identify handwriting and signature of doctor as she had already worked with her. The MLC prepared by Dr. Varsha Jain is Ex. PW9/A which is in her handwriting and bearing her signature at point A. During her cross examination she admitted that she was not present at the time of examination of prosecutrix Dolly.
(x) PW10 deposed that on 02.06.07 at about 9 a.m he was going to the house of his brother who was staying at DDA flats, Loni Road and when he reached near MIG flat Loni road accused Vijay and Naresh caught hold Dolly who was standing nearby and forcibly put her inside a car. Two other persons were also present inside the car. He had not disclosed the incident to parents of Dolly but only on 21.10.07 he narrated these facts to the parents of Page 12/21 13 FIR NO:881/07; PS NAND NAGRI; U/S 363/366/376/506/34 IPC ; STATE VS. VIJAY KUMAR & OTHERS Dolly and police officials also recorded his statement. During his cross examination he admitted that accused Vijay and father of prosecutrix were his neighbourers.
Rest of his testimony is reiterated by him as submitted by him during examination in chief.
(xi) PW11 deposed that on 19.7.07 he was going to his village Singawali from Panchwati colony and when he reached Baghpat at 7 a.m and was waiting for a bus, in the meantime a Indica car reached there from Delhi side. He raised signal to stop the car for taking lift. The car slow down then he saw accused Vijay was driving the indica car, Inderpal and Naresh were also present alongwith other person and Dolly D/o Dharampal was also sitting inside the car . They all were known to him as they were the resident of same area but he did not disclose these facts to anybody and only on 28.7.07 he narrated this incident to the parents of Dolly and his statement was recorded by the police officials.
During his cross examination he reiterated his testimony as submitted by him during examination in chief.
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(xii) PW12 is the second IO of this case and deposed that on 10.11.07 investigation of this case was assigned to him. On 05/02/08 he got statement of prosecurix Dolly was recorded u/s 164 Cr.P.C. All the accused were formally arrested as they have already been released on anticipatory bail. They were formally arrested vide arrest memo Ex. PW12/A, B and C respectively. Accused Vijay also produced the marriage certificate Ex. PW1/DA which he had taken on record. He also sent the case properties to FSL Calcutta and tendered the FSL report Ex. PX . He recorded the statement of witnesses. He collected the MLCs and after completion of investigation challan was presented.
During cross examination he admitted that he had verified the marriage certificate which was found to be correct. Thereafter, prosecution evidence was closed and case was fixed for examination of all the accused u/s 313 Cr.P.C.
8. During the course of examination of all the accused u/s 313 Cr.P.C they all converted all the allegations as alleged against them and submitted that Page 14/21 15 FIR NO:881/07; PS NAND NAGRI; U/S 363/366/376/506/34 IPC ; STATE VS. VIJAY KUMAR & OTHERS they all were innocent and falsely implicated in this case. They also desire to lead defence evidence, therefore, case was fixed for defence evidence.
9. No DW appeared despite opportunity given, therefore, defence evidence was closed and case was fixed for final arguments.
10. I have heard arguments on behalf of Ld. Addl. PP for state as well as Ld. counsel on behalf of accused.
11. Ld. counsel on behalf of accused submitted that before convicting the accused under any penal of law it is the duty of the prosecution to prove its case beyond reasonable doubt and in the present case no ingredients of the offence u/s 376 IPC as alleged against the accused persons are brought on record by the prosecution.
12. In support of his contention it is submitted that as per version of the prosecutrix alleged offence was committed on 2.6.07, 19.7.07, 17.7.07 and 27.7.07 but complaint was filed only on 8.9.07. Case was registered on Page 15/21 16 FIR NO:881/07; PS NAND NAGRI; U/S 363/366/376/506/34 IPC ; STATE VS. VIJAY KUMAR & OTHERS 10.10.07.
13. It is also brought on record that at the initial stage when prosecutrix returned on 27.7.07, she refused to lodge any complaint against any of the accused persons rather specifically stated that she had gone to the house of her friend which clearly suggests that prosecutrix falsely implicated the accused persons only due to the pressure of her parent's in the present case. It is also admitted by prosecutrix that her marriage was solemnized, marriage certificate Ex.PW1/DA and marriage registration certificate issued by the office of Hindu Marriage Registrar, Ghaziabad, UP are brought on record. Date of birth of prosecutrix I.e 17.7.90 is also not disputed which clearly suggests that prosecutrix was more than 17 years old at the time of registration of marriage however, before the registrar of marriage she had disclosed her date of birth as 17.07.87 I.e more than 18 years. The deposition of the prosecutrix that her photograph was forcibly obtained is totally unworthy of credit due to the reason that the photograph appearing on the certificate of Central Board of Secondary Education is the same which is affixed on the marriage certificate issued by Arya Samaj Vedic Marriage Mandal which clearly suggests that the Page 16/21 17 FIR NO:881/07; PS NAND NAGRI; U/S 363/366/376/506/34 IPC ; STATE VS. VIJAY KUMAR & OTHERS photograph used for affixing on the marriage certificate was already in possession of prosecutrix and she happily handed over the same for the said purpose. On perusal of the marriage certificate Ex. PW1/DA the date of birth of Dolly is deposed by her as 17.7.87 and she also admitted that certificate bears his photograph and signature. In such circumstances it cannot be said that prosecutrix has not consented for her marriage with accused Vijay and only after solemnization of marriage sexual relationship were established and if her age if calculated on the basis of date of birth I.e 17.7.90 mentioned on the CBSE certificate, then also she has become more than 17 years old on the day of alleged offence and on considering the age coupled with the fact that she gave her consent for sexual intercourse with the accused, in the such circumstances the ingredients for the offence u/s 376 IPC are not attracted. IO of this case also admitted that he verified the factum of marriage of prosecutrix Dolly and came to know that marriage was solemnized between prosecutrix and accused without any force or pressure. In view of the aforesaid circumstances it is established that prosecution failed to prove its case beyond reasonable doubt against any of the accused persons and requested for their acquittal.
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14. On the contrary Ld. Addl. PP for state submitted that prosecutrix brought on record sufficient evidence to prove the ingredients of the offence as alleged against the accused persons and same fact has been stated by her in her statement u/s 164 Cr.P.C duly recorded by Ld. MM. Testimony of prosecutrix is further corroborated by PW2 her father, factum of forcibly taking the prosecutrix in a car by the accused is further proved by PW5 Pradeep Kumar, PW10 Jitender Singh and PW11 Vijender Yadav. Factum of examination of prosecutrix at GTB hospital is proved by PW3 Wct. Komal, factum of depositing the case property in the office of FSL Calcutta is proved by PW4 Constable Ravinder Kumar and IO of this case. Factum of filing the complaint and registration of the case is proved by ASI Bhupender Singh, factum of recording statement of prosecutrix u/s 164 Cr.P.C is proved by PW7 Shailender Malik the then Ld. MM, factum of registration of case is proved by ASI Sona Ram, factum of medical examination of prosecutrix is further corroborated by PW9 Dr. Shruti who had identified the signature of Dr. Varsha Jain on the MLC no.C-6152/07.
15. In view of aforesaid deposition it is established that prosecution Page 18/21 19 FIR NO:881/07; PS NAND NAGRI; U/S 363/366/376/506/34 IPC ; STATE VS. VIJAY KUMAR & OTHERS succeeded in proving the ingredients for the offence as alleged against all the accused persons beyond reasonable doubt and requested for their conviction.
16. After hearing arguments and taking into consideration the facts and circumstances of this case coupled with the fact that factum of solemnization of marriage between prosecutrix and accused Vijay is duly verified by IO. Photograph affixed on the marriage certificate appears to have been handed over by the prosecutrix as the same photograph was already affixed on the matriculation certificate admittedly brought on record. Marriage is further registered in the office of Registrar of Marriage Ghaziabad and no evidence contrary to the documentary evidence admittedly brought on record is placed by the prosecution rather it is admitted by the IO that he verified the factum of marriage between prosecutrix and accused, was found lawfully solemnized and in such circumstances I am of the considered view that prosecution has totally failed to prove its case against any of the accused persons, therefore, all the accused namely Vijay Kumar, Naresh and Inder Pal are acquitted for the offence as alleged against them u/s 363/366/376/506/109/34 IPC. Page 19/21 20 FIR NO:881/07; PS NAND NAGRI; U/S 363/366/376/506/34 IPC ; STATE VS. VIJAY KUMAR & OTHERS
17. The bail bond/ surety bond furnished by all the accused shall remain in force till the expiry of six months and all the accused are further directed to appear before the appellant court, if they are required to appear before the appellant court in view of the provision of Section 437A Cr.P.C. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (B.S. CHUMBAK)
DATED Dt. 28th April 2011 ASJ-3 (North-East) KKD
DELHI
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FIR NO:881/07; PS NAND NAGRI; U/S 363/366/376/506/34 IPC ; STATE VS. VIJAY KUMAR & OTHERS FIR NO.: 881/07 PS NAND NAGRI 28.04.2011.
Present: Sh. S.K. Dass Ld. Addl. PP for state.
All the accused are present on bail.
Vide separate detailed judgment all the accused namely Vijay Kumar, Naresh and Inder Pal are acquitted for the offence as alleged against them u/s 363/366/376/506/109/34 IPC.
The bail bond/ surety bond furnished by all the accused shall remain in force till the expiry of six months and all the accused are further directed to appear before the appellant court, if they are required to appear before the appellant court in view of the provision of Section 437A Cr.P.C. File be consigned to Record Room.
(B.S CHUMBAK) ASJ-3/NE/KKD/DELHI 28.04.2011 Page 21/21