Delhi District Court
State vs . Avinash Singhal @ Golu S/O Lt. Sh. ... on 17 January, 2012
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IN THE COURT OF Sh. J.R. ARYAN : DISTRICT JUDGECUM
ADDITIONAL SESSIONS JUDGE : INCHARGENE DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 5/10
Unique Case ID No. 02402R0646062008
State Vs. Avinash Singhal @ Golu S/o Lt. Sh. Kamlesh Singhal,
R/o H. No. 1165, Baradari Behind Novelty Cinema,
Delhi.
FIR No. 135/08
PS Bhajanpura
U/s 363/376 IPC
Date of Institution : 28.01.2010
Date of reserving for Order : 10.01.2012
Date of Pronouncement : 17.01.2012
J U D G E M E N T :
1. Accused Avinash Singhal @ Golu a young boy aged around 23 now has been tried for offences of kidnapping, kidnapping with intent that victim would be forced to illicit intercourse and for offence of rape. Charge for these offences u/s 363/366/376 IPC put to accused for trial was that:
On intervening night of 08/09.04.2008 at around midnight 00.30 hrs. accused kidnapped a minor girl victim/prosecutrix Ms. P (complete name withheld) aged around 15 years by taking her away from the lawful guardianship of her parents from her house No. 561/33, Street No.16, Adarsh Mohallah, Mauzpur, Delhi. Kidnapping of the victim was with an intention that victim will be forced to illicit intercourse. On S.C. No. 5/10 Page 1/15 2 10.04.2008, in a house situated behind Novelty Cinema, Delhi, accused committed rape on the victim. Accused claimed trial.
2. Facts wherein the present criminal case came to be registered and investigated are: Sh. Gopal Sharma PW5, father of the victim girl Preeti lodged his report Ex.PW5/A with Police Station Bhajanpura on 10.04.2008 to the effect that his minor daughter Ms. P (complete name withheld) aged around 15 years after taking food on the night of 08.04.2008 went to go to sleep at around 11.00 pm. On 09.04.2008, at around 6.00 am, he found his daughter Preeti not there in the house and he searched about her but he was unable to trace her. It was further reported that Smt. Shakuntala with her two sons Vikas and Avinash @ Golu was residing in his house as a tenant and Avinash @ Golu was also absent from the house since the victim daughter of the informant was found untraceable. Informant accordingly suspected that Avinash @ Golu could have enticed away the victim. On this report, FIR for offences u/S 363 IPC was registered and SI Hari Singh PW14 took up the investigation. During investigation, SI came to know that accused and victim girl had gone to Mumbai.
Meanwhile, PW6, Uncle of the victim girl namely Mohan Ram Sharma accompanied by brother of accused and another boy Sonu PW12 reached Mumbai by Air flight on 12.04.2008 and then he reached railway station Mumbai and found victim girl as well accused present at railway station, Mumbai. Both of them were S.C. No. 5/10 Page 2/15 3 brought to Delhi by Air flight. SI Hari Singh already informed by PW6 Mohan Ram Sharma reached airport, Delhi. Accused was arrested from there. Statement of prosecutrix was recorded whereby further offences u/S 366 and 376 IPC were added in this case.
3. Prosecutrix in her statement given to the police and then she having volunteered a statement on oath which was recorded before Ld. M.M. on 15.04.2008, accused took her away from her house by alluring her to take her to a temple and with an assurance that soon after visit to temple she would be brought back to her home but then accused took her to some other places after she being taken to a temple and one such place which was a house in Chandni Chowk, Delhi area where accused indulged in sexual intercourse with her and that was without her consent. Proof of age of the prosecutrix in the form of her date of birth recorded in the school where she had studied was collected. Principal of that school, "Atul Shiksha Sadan"
issued a certificate proved as Ex.PW9/A during trial whereby victim girl was stated to have studied in that school from 15.07.2006 to 30.07.2007. Her date of birth was recorded as 26.09.93. School admission form Ex.PW9/B1 was also collected. Date of birth as 26.09.93 of prosecutrix victim girl recorded in this admission form was found mentioned on the basis of an affidavit sworn by Gopal Sharma which was also collected as Ex.PW9/B2. On the basis of this document according to prosecution case the victim girl was less than 15 years on the date of incident and thus accused Avinash S.C. No. 5/10 Page 3/15 4 Singhal was found to have committed offences charged against him and finally charge sheet was filed.
4. As seen above, after committal proceedings were carried out by Ld. M.M., the case was taken up for trial and charge was framed. Accused claimed trial by pleading not guilty to charge.
5. In all 18 prosecution witnesses have been examined. Victim girl has been examined as PW11 and she supported the case of prosecution by deposing that accused had taken her away from her house for taking her to a temple on the night of 08.04.2008. After visiting temple situated in Preet Vihar accused started scaring her and then took her to Chandni Chowk area. Victim girl there took some breakfast and then accused brought the victim girl to a house situated in Chandni Chowk which was lying vacant. She further deposed that after eating food during the breakfast she started feeling giddy and when she gained consciousness, she found herself in that house in Chandni Chowk and she found belt of her pant was open and she deposed that accused had committed rape on her without her consent. Thereafter, she claimed to have accompanied accused to some other places also till they were traced by her uncle at Mumbai railway station.
6. PW5 Sh. Gopal Sharma and PW7 Smt. Maya Devi are the father and mother of the victim girl. They too supported the prosecution case and stated on oath that their daughter prosecutrix was 15 years of age and had studied only upto 8th standard. They S.C. No. 5/10 Page 4/15 5 also deposed that on 09.04.08 morning they found her absent from their house and they noticed that accused Avinash who was residing with his mother as a tenant in their house was also absent and missing and criminal report was lodged with the police. PW6 is Mohan Ram Sharma who deposed that after their efforts to trace victim girl did not bear any fruit, they went to Novelty Cinema area and there aunt of accused Avinash namely Sunita told him that Avinash @ Golu accompanied by his friend had gone to Mumbai. This witness along with brother of Avinash and another brother Sonu did reached Mumbai and finally traced victim girl and accused at railway station.
7. PW9 was a witness from "Atul Shiksha Sadan Middle School", Babarpur, Delhi and he proved and exhibited documents Ex.PW9/A, Ex.PW9/B1 and Ex.PW9/B2. Further material witness in this case is Dr. Ashita Gulati PW16 who proved MLC of the victim girl. That MLC was prepared by Dr. Sapna Raina but then Dr. Raina had already left the hospital and this witness a Senior Resident being familiar with the writing and signatures of Dr. Raina identified and proved the MLC. As recorded in the MLC, doctor deposed that victim girl was brought to the hospital with a history of sexual contact. On her local examination, her hymen appeared to be torn but no injury mark was noticed. Sample of her vaginal smear was prepared and handed over to the police. PW18 is a doctor who proved MLC of accused Avinash which was prepared on 13.04.2008. This MLC had S.C. No. 5/10 Page 5/15 6 ruled out accused Avinash Singhal if incapable of performing usual sexual intercourse activity. Doctor proved MLC as Ex.PW18/A.
8. PW14 is the IO and rest other witnesses are police officials.
Exhibits in this case including vaginal smear of the prosecutrix had been sent to FSL and report Ex.PW8/A was received. Two micro slides which were vaginal smear of the prosecutrix were reported no sign of semen stain noticed on those slides.
9. Accused when examined u/S 313 CrPC to explain the incriminating evidence, he came out with the plea of complete denial with no further positive plea as to why witnesses including the prosecutrix had deposed against him. He pleaded innocence and stated that he was falsely implicated when Gopal Sharma and his brother Mohan Ram Sharma were asking them to vacate the premises and on that account they got accused implicated. Accused then examined a witness Gaurav who was resident of house No. 1165, behind Novelty Cinema, Delhi. Witness deposed that accused and prosecutrix never came to their house and with that defence evidence was closed.
10. I have heard both sides in this case. Counsel Sh. Ajay Jain appearing for accused argued that the evidence of age proof of the victim girl in the form of school certificate was not acceptable. He submitted that victim girl is shown admitted in that school for the first time in the year 2006 and date of birth was got recorded only on the basis of an affidavit. He further submitted that though affidavit had S.C. No. 5/10 Page 6/15 7 been sworn by Gopal Sharma as it appears from affidavit Ex.PW9/B2 but the deponent who has signed this affidavit is Smt. Maya Devi. He submitted that prosecution could have collected age proof of the victim girl in the form of birth registration certificate but no such attempt was made. Counsel submitted that date of birth recorded in the school on the basis of affidavit as referred to above was not a proper proof of the age of the victim girl and was unacceptable. He further submitted that victim girl was got medically examined for assessment of her age on the basis of bony examination. Report is on the file which is dated 21.05.2008 bearing photograph of the prosecutrix and report mentions that age of the prosecutrix was above 18 years because lower end of radius and ulna and head of humorous were fused and below 20 years because iliac crest was not fused. Accordingly, age of victim girl was between 18 and 20 years. Counsel argued that when this bony age was taken into consideration with even one year error margin it would bring age of the prosecutrix to the status of majority.
11. Counsel further argued that evidence of the prosecutrix suggested that she was in the company of accused by her consent and rather her evidence that accused maintained a sexual contact with her was entirely a vague and not an acceptable and believable piece of evidence. He submitted that when prosecutrix appeared before Ld. Magistrate to get her statement recorded and which statement was recorded in terms of Section 164 CrPC, she attributed S.C. No. 5/10 Page 7/15 8 to accused only at the most an act of molestation of modesty of the prosecutrix. In this regard, counsel read over that portion of her statement where she has confined her allegations to the act of outraging her modesty. She has stated "Jab me hosh me aayi to dekha Avinash ne mere sath chedchad va batamiji ki aur paya ki me Chandni Chowk me ek makan me hu". Counsel submitted that evidence of the prosecutrix now in court that accused had indulged in sexual intercourse with her was unbelievable and unacceptable.
12. Finally Counsel argued that if prosecutrix was held and found to be above 16 and 18 years of age then her conduct in having visited several places in the company of accused without raising any protest or alarm would sufficiently suggest that she was in the company of accused by her consent and charge could not be held to have been proved.
13. Ld. APP on the other hand, submitted that the victim girl had been got admitted in a school in July 2006 and there she studied till March 2007 then her date of birth got recorded in school was not in contemplation of any such eventuality that date of birth will become relevant in a criminal case. Both parents of victim girl specifically stated that their daughter prosecutrix was 15 years of age when this incident occurred and there was no reason to not to believe that evidence. When victim girl was a minor and was below 16 years of age then the defence plea that victim girl was a consenting party in the entire episode was not legally sustainable and charge could be S.C. No. 5/10 Page 8/15 9 held and found duly proved. It has been argued that where victim girl was a minor then taking her away and removing her from the lawful custody and guardianship of her parents amounted to kidnapping and the prosecutrix has specifically deposed that accused committed rape upon her, the charge could be held and found well proved and established and accused was liable to be convicted. I have considered all these contentions.
14. Where prosecution seeks to prove its charge of kidnapping of a minor female and kidnapping was with an intent or a knowledge that victim female shall be subjected to illicit intercourse and further charge of rape on a plea and evidence that victim girl was a minor then onus is on the prosecution to prove the fact of minority status of the victim girl by convincing and satisfactory evidence. In the present case, victim girl when examined as PW11 on 14.09.2010 she deposed her age 18 years. PW9 is an official witness from a private school and this witness working as a Principal in the school deposed that prosecutrix D/o Sh. Gopal Sharma was admitted in his school in the year 2006 and her date of birth was recorded as 26.09.1993 as declared by her parents. She further deposed that an affidavit as regards that date of birth was sworn by her father Sh. Gopal Sharma. To my view, ld. defence counsel was justified in his arguments and contentions that where date of birth of a girl was recorded in a school in the absence of any birth certificate or any other authentic document disclosing her date of birth then court was S.C. No. 5/10 Page 9/15 10 to proceed very cautiously in accepting that date of birth and proceeding to decide the charge concerned with that date of birth. In the present case, admittedly date of birth of prosecutrix was recorded on the basis of an affidavit sworn by her father but then defence counsel rightly pointed out anomaly with affidavit though appearing sworn by Sh. Gopal Sharma but it has been signed by Smt. Maya as a deponent and thus no authenticity or credibility could be given to such an affidavit. Both parents of the victim girl namely Gopal Sharma as PW5 and Maya as PW7 while deposing evidence in this trial merely stated that their prosecutrix daughter was 15 years of age. Nothing more came to be deposed by these witnesses concerning age of victim prosecutrix. It is prosecution case itself that victim was got medically examined for assessment of her age. This medical report dated 21.05.08 reveals that victim girl was subjected to xray for bony age and categorical findings has been recorded that she was above 18 years of age but below 20 years. A year or two margin of error in such assessment is to be considered only from the point of view as is favourable to accused. This assessment of age of the victim girl comes directly in conflict with date of birth of the victim which was got recorded by parents in a private school. It is difficult thus to accept the age of the victim girl by her date of birth recorded in the school. Prosecution thus cannot be held to have proved that victim was below 16 years of age or even to say below 18 years of age on the date of occurrence i.e. 08.04.2008.
S.C. No. 5/10 Page 10/15
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15. Could the act and conduct of accused amount to abducting the victim girl and could the charge of rape be found established by the prosecution. On that point statement of the prosecutrix is very important for its analysis. Prosecutrix has deposed that accused used to reside with his brother and mother as a tenant in her uncle's house. He offered to take her to a temple and he then did take her to a temple in midnight of the intervening night of 08.04.2008. Could it be said that accused whether by force compelled her to leave her house or by deceitful means induced her to come in his company to visit a temple and leave her house. To my view, none of the ingredient could be found made out from such evidence. Prosecutrix then deposed that in the next morning she asked accused to taker her back to her house but accused started scaring her and both of them reached Chandni Chowk area and there they entered into a house which was lying vacant/unoccupied. This conduct of the prosecutrix in remaining in the company of accused and both of them going to Chandni Chowk area again fails to make out any other inference than the prosecutrix accompanying accused by her own willingness. She has deposed that after eating food as a breakfast she started feeling giddy. She is absolutely nonspecific as to what food it was that, she started feeling giddy after eating it. It is difficult to place reliance on any such statement. Finally she states that as she became conscious she found belt of her pant open and then she deposed that accused committed rape upon her without her consent. S.C. No. 5/10 Page 11/15
12 Defence counsel rightly argued that if prosecutrix became unconscious and found only belt of her pant open when she became unconscious, inference of rape was not to be drawn merely by fact that she found belt of her pant in open condition. Prosecutrix has not specifically deposed that accused indulged in a sexual intercourse with her within her conscious state of mind. Defence counsel further rightly argued that even place of incident of alleged rape was also not clear. Where was that house situated in Chandni Chowk which was lying vacant and unoccupied has remained absolutely an uninvestigated matter. In this regard counsel referred to the statement of IO PW14 where he deposed that during investigation IO visited a house situated behind Novelty Cinema where accused used to reside prior to this incident and there he met with the aunt and son of the uncle of accused and it is from that place that IO came to know that accused had called his cousin residing in Mumbai and then accused and the prosecutrix had gone to Mumbai. In cross examination, IO was asked to specify the address of that house behind Novelty Cinema but IO deposed that he did not remember address of that house and had not recorded that address anywhere in this case. It suggests that IO did not at all investigate the fact stated by the prosecutrix during the investigation that she had been subjected to sexual intercourse in a place which was a house lying vacant and unoccupied. It puts the testimony of the prosecutrix to a serious doubt. Besides this statement of the prosecutrix on the S.C. No. 5/10 Page 12/15 13 charge of rape, there is no other supporting and corroborating evidence. In a case of sexual offence, testimony of the prosecutrix can be a basis for holding the charge proved provided such a testimony appears truthful and reliable and inspires court's confidence to place implicit reliance on it. In the absence of testimony of the prosecutrix providing a confidence to the court, court would look for some corroborating evidence before accepting evidence of prosecutrix to hold a charge of rape proved against the accused. In the present case, no such corroboration is coming forth either from the medical evidence or even from the FSL report. Smear slides of the prosecutrix prepared during her medical examination when examined at CFSL, report indicates that no semen stains could be detected on those slides. Accordingly, it is difficult to give an implicit credibility to the testimony of the prosecutrix that she found herself in a house in Chandni Chowk when she gained consciousness and that accused had committed rape upon her without her consent. Ld. APP argued that MLC Ex.PW16/A of the victim girl showed that hymen appeared to be torn and that could be taken to be a supporting and corroborating piece of evidence. That itself in absence of any further evidence as to how old that factum of hymen found torn be and in absence of any other injury mark on the person of the prosecutrix, to my considered opinion did not provide any supporting/corroborating evidence.
16. Victim/prosecutrix further deposed that after accused and she S.C. No. 5/10 Page 13/15 14 moved from Chandni Chowk area they went to Gurgaon and reached house of a close relation of accused and they stayed in that house and then they visited a temple at Gurgaon. On 10.04.2008, they boarded train from New Delhi railway station and reached Mumbai. Prosecutrix and accused as soon they reached Mumbai Railway station, Uncle of prosecutrix and other persons traced them and they were brought back to Delhi. In the crossexamination, witness admitted that at no point of time and at no place she had raised any alarm or any hue and cry. She admitted to have visited house of a close relation of accused in Gurgaon and after staying for about half an hour in that house, both accused and prosecutrix visited a temple and then they reached Railway station. Prosecutrix tried to explain her silence by deposing that accused had given her a threat to kill her younger brother and that is how she did not make any complaint to anybody. This kind of an explanation stands contradicted and belied by the conduct and behaviour of the prosecutrix. Prosecutrix had ample opportunity to speak to anyone if she was being taken to any of above stated placed against her consent and wish. Her conduct suggests that she herself had consented to be in the company of the accused. When the prosecution has failed to prove age of the prosecutrix as minor on the date of incident then charge of kidnapping cannot be held to have been proved against accused.
17. Examination and analysis of the evidence discussed above S.C. No. 5/10 Page 14/15 15 shows that deposition of the prosecutrix that she was subjected to sexual intercourse by accused is not believable. Prosecution has since failed to prove that she was minor for the offence of rape or for the offence of kidnapping, the conduct and behaviour of the prosecutrix also fails to bring on record if accused had used any force. The charge of rape or kidnapping cannot be held to have been proved by the prosecution. Accused is acquitted of the charge tried against him. File be consigned to record room.
Announced in the Open Court (J.R. Aryan)
On this 17th day of January, 2012 District Judge/Addl. Session Judge
(Incharge), NorthEast District,
Karkardooma Courts, Delhi.
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