Delhi District Court
State vs . on 25 August, 2011
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.89/10, 90/10 & 91/10
FIR NO.154/04
U/S 363/366/376/506120B/34 IPC
PS Narela
Unique Case ID No. : 02401R5636042004
State
Vs.
1. Sonia @ Kajal w/o Sh. Ajay Kumar
r/o Village Ladhot, PS City Rohtak,
District Rohtak, Haryana.
2. Ajay Kumar s/o Sh. Naresh Kumar
r/o Village Ladhot, PS City Rohtak,
District Rohtak, Haryana.
3. Kaptan @ Tanu s/o Sh. Risal Singh
r/o H.No.715, Village Bankner, Delhi.
Date when committed to the court of Sessions :07.07.2004
Date when case reserved for judgment : 12.08.2011
Judgment pronounced on : 25.08.2011
JUDGMENT:
1. The case of the prosecution in brief is that on 15.04.2004, the complainant (name not disclosed for the secrecy reasons) came to SC No.89/10, 90/10, 91/10 Page 1/18 the PS and got recorded her statement to the effect that she was residing at the address given in her statement along with her family and that on 12.04.2004, at about 5 p.m, her daughter namely, the prosecutrix (name not disclosed for the secrecy reasons), aged about 16 years was taken by one Sonia @ Kajal from her house and that Sonia was residing near Mata School and used to visit her house and her daughter had not returned back to her house regarding which she lodged a missing report vide DD No.33B dated 14.04.2004 and thereafter she had come to know that said Kajal @ Sonia along with one Kaptan @ Tanu and one Ravi Kant @ Pappal had induced her daughter to go from her house and on the basis of the said statement an FIR u/s 363/34 IPC was got registered and investigation was handed over to ASI Mahavir Singh.
2. During investigation, accused Kajal @ Sonia was arrested whose disclosure statement was recorded and from the information gathered from the said disclosure statement the prosecutrix was got recovered from Village Chulkana, Haryana but accused Kaptan and Ravi Kant could not be arrested and said prosecutrix was got medically examined and exhibits which were seized by the doctor were taken into possession and thereafter statement of the prosecutrix u/s 164 Cr.PC was got recorded.
3. As per statement u/s 164 Cr.PC, the prosecutrix was sleeping at her home on 12.04.2004, when accused Sonia and her husband Ajay came to her house and took her to the market and from the SC No.89/10, 90/10, 91/10 Page 2/18 market to their house where she was given tea with some obnoxious substance due to which she fainted and on the following day when she woke up, she found two boys by the name of Pappal and Kaptan who forcibly took her on motorcycle to Village Chulkana, Narela where she was kept in a house and there Kaptan committed rape upon her against her wish and as the area was isolated, nobody came after hearing her alarm and police had come in the evening and that she was taken by the said two persons but the said person by the name of Pappal got down from the motorcycle in the way and in the said way Kaptan committed rape upon her.
4. On the basis of the said evidence, accused Ajay, the husband of said Kajal @ Sonia, was also arrested in the case and first charge sheet was filed against them. The supplementary charge sheet was filed showing the said two accused as PO.
5. Accused Kaptan and Ravi Kant were arrested on 03.09.2004 and 14.09.2004 respectively and against them also again a supplementary charge sheet was filed after their arrest. The FSL result was placed on record subsequently.
6. On the basis of the said evidence and the charge sheets my Ld. Predecessor, initially vide his order dated 21.09.2004 framed charges against accused Sonia @ Kajal and Ajay Kumar u/s 328/363/109 r/w 376/34 IPC and vide her order dated 31.01.2005 against accused Kaptan and Ravi Kant the charges u/s 363/366/34 & u/s 376(2)(g) IPC were framed to which they pleaded not guilty and SC No.89/10, 90/10, 91/10 Page 3/18 claimed trial.
7. During the trial, accused Ravi Kant stated to have been murdered regarding which FIR no.329/10 u/s 302 IPC, PS Narela was registered and thus, the case stood abated against him.
8. The prosecution, in order to prove its case, has produced as many as 14 witnesses which have been discussed below.
9. The statements of the accused u/s 313 Cr.PC were recorded wherein they pleaded their innocence and denied the incriminating evidence against them as false and did not prefer to lead any defence evidence.
10. I have heard Ld. APP for the state, Sh. R.S. Prasad, Advocate for accused Sonia @ Kajal and accused Ajay and Sh. Tarun Gahlot, Adv. for accused Kaptan @ Tanu and perused the record.
11. PW4 HC Birender Singh was the MHC(M) who deposed regarding deposit of exhibits and sending the same to FSL. PW5 W/HC Sumitra was the duty officer who proved the copy of FIR as Ex.PW2/A. PW6 Ct. Devender Kumar proved the DD No.33B regarding missing of the prosecutrix as Ex.PW6/A. PW7 HC Vijay Pal was the inquiry officer with regard to said DD No.33B who could not trace out the prosecutrix. PW8 W/HC Sarla took the prosecutrix, at the instructions of the IO, for her medial examination on 15.04.2004 and the sealed parcels given to her by the concerned doctor, were handed over by her to the IO vide memo Ex.PW8/A. PW9 was the concerned official of MCD primary school, Narela SC No.89/10, 90/10, 91/10 Page 4/18 who proved the School Leaving Certificate of the prosecutrix as Ex.PW9/A mentioning the date of birth of the prosecutrix as 26.05.1988 and in her cross examination, she could not tell as to whether any document was given with regard to proof of age of the prosecutrix at the time of admission nor the School Leaving Certificate Ex.PW9/A revealed regarding any document submitted with regard to date of birth of the prosecutrix. She further answered that as per record, prosecutrix was given admission on the basis of school leaving certificate of the school situated at Bankner, Narela but her school generally did not verify the contents of the certificate if it was signed by the Head Master of the concerned school. She admitted that there was no MCD certificate with regard to date of birth of the prosecutrix in the school record. PW10 L/Ct. Suresh Bala took the accused Sonia @ Kajal and the prosecutrix to hospital for medical examination on 16.04.2004. PW11 Ct. Ishwar Singh and PW12 HC Ram Nihor joined the investigation with the IO and deposed about arrest of accused Ajay at the instance of the complainant, arrest of accused Kaptan Singh in the concerned court of MM and PW12 also deposed about arrest of accused Sonia @ Kajal on 15.04.2004 at the instance of the complainant, recording of her disclosure statement, recovery of the prosecutrix at Village Chulkana. Similarly PW13 SI Mahavir Singh was the IO who deposed regarding the said investigation conducted by him and he tendered the FSL result as Ex.PX and Ex.PY and he was not cross SC No.89/10, 90/10, 91/10 Page 5/18 examined on behalf of the accused. PW14 Dr. Jay Kumar identified the handwriting and signatures of Dr. Anil Khari, Dr. Pankaj Kumar and Dr. Rashmi, who left the services of the hospital and he proved the MLC of the prosecutrix as Ex.PW14/A and thereafter the said doctor proved the Xray reports of the prosecutrix Ex.PW14/B and Ex.PW14/C whereby the bony age of the prosecutrix was determined as between 14 to 17 years and he was also not cross examined on behalf of the accused.
12. Coming to the public witnesses, PW3 Parsuram Singh was the father of the prosecutrix who deposed that his wife had gone to lodge the report with the police regarding missing of his daughter on 14.04.2004 and he failed to identify any of the accused and he was declared hostile by the prosecution and in his extensive cross examination on behalf of the State, nothing could be brought on the surface connecting the accused with the offence although he was confronted with his previous statement Mark PW3/A which he denied to have made to the police. However, in his cross examination on behalf of the accused, he replied that he was married in the year 1973 or 1974 but he did not remember the date of his marriage and that the prosecutrix, his daughter, was born in his native Village situated in District Chapra, Bihar and as there was no practice in the village, that was why no birth record of the prosecutrix was got prepared and date of birth in the school was got recorded by them on the basis of their imagination and the date of SC No.89/10, 90/10, 91/10 Page 6/18 birth in the school register is not the exact date of birth of his daughter (the prosecutrix) and that the date of birth was informed in the school by his wife.
13. PW2 is the mother of the prosecutrix and the complainant who deposed regarding missing of the prosecutrix on 12.04.2004, as per the facts narrated above and she proved her statement recorded in the FIR as Ex.PW2/A and thereafter she deposed about arrest of the accused Sonia and Ajay on 14.04.2004 at Singhu Boarder and their disclosure statements recorded at the PS and thereafter she deposed that on sixth day of the missing of her daughter, the police had brought her daughter to the PS and she was informed about the same and thereafter her daughter was medically examined and her salwar (lower garment) was seized by the doctor which she was wearing and thereafter prosecutrix was produced before the concerned MM where her statement was recorded and that her daughter was born at the Village at District Chapra in Bihar and that her daughter was born on 26.05.1988 and she identified the said lower garment of the prosecutrix as Ex.P1.
14. In her cross examination on behalf of accused Sonia and accused Ajay, PW2 replied that both the said accused were coming to her house 2/3 days prior to the day of incident and both of them had come 2/3 times and that she had asked her daughter not to accompany accused Ajay and Sonia and that both the accused were living in a rented accommodation at a short distance from her house SC No.89/10, 90/10, 91/10 Page 7/18 and that she had gone to the market at 5 p.m in the evening on the day of incident leaving behind her children and one tenant at her house and she back home at about 8 p.m and that she was told by the said tenant that her daughter (the prosecutrix) had been taken away by accused Sonia and that she tried to trace out the said two accused but did not lodge report with the police for two days. She further replied that her daughter was working at a Beauty Parlor 1516 days prior to the day of incident and she had commanded her daughter not to go for the said work. She further replied that she was married in the year 1972 and prosecutrix was born in the year 1988 at District Chapra and that she had no certificate issued by Corporation regarding date of birth of the prosecutrix. She admitted it as correct that she got recorded the date of birth of the prosecutrix in the school on her guess work but she did not know the exact date of birth but again said that her daughter was born on 26.03.1988 and that she was more than 17 years of age on the day of deposition and when she was cross examined on behalf of accused Kaptan and accused Ravi Kant, she replied that she did not know the purpose for which the prosecutrix left her house on 12.04.2004 and she did not know if the prosecutrix had gone from the house for the purpose of marriage with accused Kaptan and that both the accused Ravi Kant and Kaptan were known to her prior to the incident and that Kaptan wanted to marry with the prosecutrix and at that time she was against the marriage and at the instance of her neighbours she SC No.89/10, 90/10, 91/10 Page 8/18 lodged a report Ex.PW2/A and that the prosecutrix had gone from the house in order to marry with Kaptan and that the prosecutrix may be about 18 years of age at the said time and now she was ready and willing to marry prosecutrix with accused Kaptan and that there was some misunderstanding with accused Sonia, Ajay and Ravi Kant in those days and that was why she made the report and that the prosecutrix did not disclose any wrong act done to her by any of the accused and that due to the fear of the police she deposed falsely against the accused on previous occasion and thereafter she was cross examined being hostile by the Ld. Addl. PP wherein she stated that report Ex.PW2/A was lodged by her due to disturbed mind and out of anger.
15. Let me now discuss about the deposition of the prosecutrix who appeared as PW1 and in her examination in chief she testified that on 12.04.2004, she was alone at home and her mother had gone to market and she was sleeping at home when accused Sonia and Ajay present in court came to her house and took her to the market for shopping and that she knew both the said accused prior to the incident as they were her neighbour and that after shopping, accused Sonia and Ajay took her to their house for tea and after having tea, she felt sleepy and lost her consciousness and she gained her consciousness at night time and she told the accused that she should be allowed to go home and accused Sonia asked her to take food and that after having dinner, she again lost her consciousness and when SC No.89/10, 90/10, 91/10 Page 9/18 regained consciousness in the morning, she found that Ravi Kant @ Pappal and Kaptan, the accused present in court, were present in the room and accused Pappal and Kaptan threatened to kill her in case she raised alarm or if she talked more and thereafter took her on a motorcycle to Village Chulkana at Haryana and that they took her to the house of accused Pappal where she was kept for a day and night and thereafter they again mixed something in water and gave her to drink due to which she again became unconscious and she regained her consciousness in the following morning and found that both the accused Ravi Kant and Kaptan were present in the room and they started misbehaving with her and touching her body to which she objected and on that accused Ravi Kant had slapped her and thereafter accused Ravi Kant committed rape upon her and after that accused Kaptan had committed rape upon her and on the following day police came to the house of the said accused Ravi Kant and apprehended her and that accused Ravi Kant and Kaptan had run away from there and she was brought to Delhi and that police had recorded her statement and statement of her mother also and on the next day she was taken to Balmiki Hospital where she was medically examined and doctor had seized her salwar and that she was also produced before the MM where her statement u/s 164 Cr.PC was recorded and the said statement is Ex.PW1/A and she volunteered that she had not told in her said statement that accused Ravi Kant had committed rape upon her as she was threatened at that time and SC No.89/10, 90/10, 91/10 Page 10/18 that she was 16 years old at the time of incident and that she had studied up to VIth standard in Govt. Girls School at Narela and that she was born on 26th May but she could not tell the year and that the same may be told by her mother and that she had shown the place of occurrence to the police and that none of the accused was arrested in her presence and she identified her salwar as Ex.P1.
16. In her cross examination on behalf of accused Sonia and accused Ajay, she replied that the said two accused became acquainted to her 45 days prior to the incident and that she came into contact with accused Sonia in the beauty parlor where she was working with her and that she was working in the beauty parlor for last six months prior to the date of incident and accused Sonia had joined the beauty parlor 6 or 7 days prior to the incident and that prior to the incident accused Sonia visited only once or twice to her house but she had not gone to the house of the said accused prior to the day of incident. She further answered that accused Sonia came to her house at about 5 p.m and they both went to the market in a rickshaw and that accused Ajay was going on a bicycle ahead of them and it took 15 minutes in reaching the market from where they bought some articles needed for running a beauty parlor and that they reached the house of accused Sonia at about 6 p.m and after taking tea, it took about 5/10 minutes when she became unconscious gradually while sitting in the room of the said tenanted house of the said two accused. She further answered that as she could not SC No.89/10, 90/10, 91/10 Page 11/18 understand mixing of something in the tea, she did not protest against the same and when she regained consciousness she realized that she was administered something in the tea due to which she lost her consciousness. She further replied that she regained consciousness at about 7 or 8 a.m on the following morning and at that time the said house was lying open and she did not raise alarm and that she had questioned both the said accused as to what was mixed in her tea and they should leave her at her parental home but accused Sonia requested her to take food with them and accused Sonia had taken only 5 minutes in preparing the food which was served thereafter and she had comfortably taken two loaves of bread (chapaties) and also consumed water thereafter and that she had not refused to take the meal as she did not suspect of mixing something in the food and that thereafter she became unconscious after about five minutes of taking the food and she regained consciousness next morning at about 9 or 9.30 a.m. She further answered that her two younger brothers were at home when she had left the house on the day of incident and she had told her brothers that she was going with accused Sonia and that the house of accused Sonia was situated at a distance of 25 minutes walking from her house and the beauty parlor was situated at a distance of 10/15 paces from her house and that her mother was aware about Sonia and also knew about her residence which was a tenanted house.
17. In her cross examination on behalf of accused Kaptan and SC No.89/10, 90/10, 91/10 Page 12/18 Ravi Kant, she replied that both the said accused were known to her prior to the incident and she wanted to marry accused Kaptan. She admitted it as correct that she had gone to marry accused Kaptan and she and accused Kaptan reached Panipat from Narela to have a court marriage there and Ravi Kant joined as witness. She further replied that her mother was against the said marriage and that was why she lodged a report and that no forcible act was done by the accused with her nor she was forcibly raped. She replied that previous statements given by her were under the pressure of her mother and police and that accused Ravi Kant was known as Pappal but he did not commit any rape with her and that there was no pressure from accused Sonia and Ajay. She admitted that accused Kaptan wanted to marry her and she replied that she was more than 18 years of age at that time.
18. She was declared hostile by the prosecution and was cross examined by the Ld. Addl. PP for the State wherein she admitted that she was medically examined and also a test for her age determination was done at the hospital. She admitted that at the time of her medical examination on 15.04.2004, she gave her age as 16 years because this age was recorded in the certificate which was two years less than her actual age. She, although admitted to have given her age before the concerned MM as 16 years but volunteered that at that time she was 18 years old. She admitted that she did not disclose regarding any pressure upon her to the said MM who SC No.89/10, 90/10, 91/10 Page 13/18 recorded her statement and volunteered that she was under the police pressure and for that reason she did not disclose the same to the said Magistrate.
19. Even if I ignore the cross examination of the prosecutrix as reproduced above for the sake of arguments wherein she has not supported the case of the prosecution and her examination in chief and assuming that the said hostility may be due to some allurement given to her or may be under threat from the accused, but still the question is as to whether her examination in chief is worth of any credit to be given to the same. Admittedly the accused were previously known not only to the prosecutrix but to her mother PW2 also. Right from accompanying the accused Sonia and Ajay on 12.04.2004 to the market, from there to the house of the said two accused, taking tea after which becoming unconscious, regaining consciousness and consuming the food and again becoming unconscious and regaining the consciousness and finding the doors of the said house open, is difficult to be believed as admittedly no one stopped her from going out of the said house nor it is the case of the prosecutrix that said two accused had put any threat or were armed so that not let her go outside the house. Further and admittedly the house of accused Sonia and Ajay was situated in the same locality near to the house of the prosecutrix and not raising alarm even after regaining consciousness is again difficult to be believed.
SC No.89/10, 90/10, 91/10 Page 14/18
20. Accused Kaptan and Ravi Kant taking her on a motorcycle to the said Village at Haryana must have taken a considerable time and admittedly it was a day time and the said fact is again difficult to be swallowed as she did not depose as to whether the said two accused were armed at that time or her mouth was being gagged so as not to give her a chance to raise alarm during the way to the said village. Further, she herself given a jolt to the story by self contradictory statements made by her u/s 164 Cr.PC wherein no role was assigned to accused Ravi Kant @ Pappal (since deceased) and deposing his role before the court as her rapist and taking shield behind the alleged threat given to her due to which she did not narrate accused Ravi Kant as rapist before the said Magistrate, is nothing but to supply the lacunaes in her story in order to make it foolproof before the court. Thus, she had blown hot and cold in the same breath regarding her story of alleged kidnapping and rape and from a close scrutiny of her examination in chief itself it can safely be deduced that she was a consenting party not only in going with accused Ajay and Sonia but going with accused Kaptan and Ravi Kant to the said Village Chulkana.
21. Having held so, now the question arises as to whether the prosecutrix was under the age of 16 years so that her consent qua the offence of rape becomes immaterial or under 18 years of age so as to attract the offences of section 363 and 366 IPC as per the charges levelled against the accused.
SC No.89/10, 90/10, 91/10 Page 15/18
22. PW2 and PW3, the parents of the prosecutrix, being the best witnesses have specifically admitted in their cross examinations that there was no birth certificate of the prosecutrix who was born at a Village in the State of Bihar. It has been specifically admitted by PW2, the mother of the prosecutrix, that she got recorded the date of birth of the prosecutrix in her school records out of her guess work and that may not be the actual age of the prosecutrix. The school leaving certificate proved on the record as Ex.PW9/A, although mentioned the date of birth of the prosecutrix as 26.05.1988 but from the very nature it was a secondary kind of document and contents of the same must have been recorded on the basis of some primary facts given to the school by way of some documentary evidence. I find that even an affidavit with regard to date of birth of the prosecutrix was not given to the school authorities in support of their claim qua the date of birth of the prosecutrix by her parents and admittedly, as per deposition of PW9, there was no Municipal record or any other record with regard to date of birth of the prosecutrix in the school records. Hence, the authenticity of the date of birth of the prosecutrix as 26.05.1988, as given in the certificate Ex.PW9/A, becomes highly improbable and doubtful and my view is further supported by the medical evidence of the report of Radiologist with regard to ossification test of the prosecutrix Ex.PW14/B giving the age of the prosecutrix between 14 to 17 years and needless to repeat the law that bony age may vary up to two years on both the sides and SC No.89/10, 90/10, 91/10 Page 16/18 thus, the possibility of the prosecutrix being more than 18 years of age on the day of incident may not be ruled out. If there are two views possible on the judicial record of the facts as proved, the view favourable to the accused must be adopted and all the accused cannot be said to have committed the offences u/s 363/366/376/34 IPC in the said circumstances and for the same reason accused Ajay and accused Sonia cannot be said to have committed the offences u/s 109 r/w Section 376/34 IPC.
23. Similarly, except the bald statement of the prosecutrix as PW1 that she was given some intoxicating substance in her tea and food by accused Sonia and Ajay and in her water by accused Kaptan and Ravi Kant, there is no corroborative medical evidence to that effect nor any gastric levage was preserved and sent for chemical analysis to determine the said administration of intoxicating or deleterious substance. Moreover, even if for the sake of argument the said unconsciousness due to said administering of intoxicating substance is taken as true, it is not appealable to the common sense as to why on the following morning when she regained consciousness and doors of the house were open, she did not try to run away from the said house of accused Sonia and Ajay. Thus, the version of the prosecutrix becoming unconscious due to the intoxicating or deleterious substance administered to her has not been established beyond reasonable doubt and thus, accused are extended benefit of doubt and they are acquitted of the said charges against accused SC No.89/10, 90/10, 91/10 Page 17/18 Sonia @ Kajal and Ajay Kumar u/s 328/363/109 r/w 376/34 IPC and against accused Kaptan and Ravi Kant u/s 363/366/34 & u/s 376(2)(g) IPC. Their PBs and SBs are hereby discharged. The file be consigned to the Record Room.
(Announced in the open court on 25.08.2011) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELH SC No.89/10, 90/10, 91/10 Page 18/18