Delhi District Court
State vs . Ram Kirpal on 26 May, 2010
1
State Vs. Ram Kirpal
FIR No. 835/06
IN THE COURT OF MS. BARKHA GUPTA : ADDITIONAL
SESSIONS JUDGE - IV: ROHINI (OUTER) : DELHI
Sessions Case No. : 52/08
FIR No. : 835/06
PS : Nangloi
Under Sections : 363/366/376/328/506/34 IPC
State Versus 1. Ram Kirpal
S/o Sh. Kallu
R/o Village, Tarapur,
P.S. Khaga, District Fatehpur, U.P.
2. Kamlesh (Since expired)
S/o Sh. Ram Aasre
Village Shivdutt Ka Purva,
Majri Loniya Pura,
P.S. Khaga, District Fatehpur, U.P.
Date of Committal ----- 21.12.06
Date of Institution
before this Court ----- 05.12.08
Date on which reserved
for Judgment ----- 25.05.10
Date of Judgment ----- 26.05.10
Final Order ----- Convicted
U/Ss 363/366/376/328 IPC
JUDGMENT
1/39
2
State Vs. Ram Kirpal FIR No. 835/06
1. The present charge-sheet u/s 173 Cr.P.C. has been filed against the accused persons namely Ram Kirpal S/o Kallu and Kamlesh (since expired) S/o Ram Aasre u/Ss 363/366/376/328/34 IPC. Briefly stating the case of prosecution is that on 14.08.06, the accused Ram Kirpal had kidnapped the prosecutrix (a minor) out of keeping of lawful guardianship of her parents without their consent with intention that she may be compelled to marry him against her wishes or in order that she may be forced or seduced to illicit intercourse knowing it likely that she will be forced to illicit intercourse and to accomplish his motive, the accused Ram Kirpal made the prosecutrix eat a laddoo which comprised of some stupefying/ intoxicating substance after consuming which the prosecutrix got unconscious and the accused took her to Itawa, U.P. where he raped her against her will and without her consent. It is further the case of prosecution that father of the prosecutrix had on his own made efforts to trace out his daughter i.e. the prosecutrix and when he did not succeed, he lodged a complaint in the police station on 20.08.06 whereupon investigation commenced during which the accused Ram Kirpal was arrested from Khaga, U.P. on 01.09.06 and prosecutrix was also recovered and after completion of investigation, the charge sheet U/s 173 Cr.P.C. was filed in the Court of Ld. concerned MM who after compliance of necessary legal provisions U/s 207 Cr.P.C had committed the case to Sessions Court and my Ld. Predecessor vide order 2/39 3 State Vs. Ram Kirpal FIR No. 835/06 dated 08.03.07 had served the charges u/Ss 363/366/328/376 IPC on the accused Ram Kirpal and a separate charge u/s 506 IPC was also served on the accused Kamlesh (since expired) that after kidnapping of prosecutrix by the accused Ram Kirpal in the aforesaid manner, he had criminally intimidated the prosecutrix by extending threats to her to cause harm/injuries upon her person by showing her knife at Itawa, U.P. to which both the accused persons had pleaded not guilty and claimed trial.
It would be pertinent to mention at this juncture during the course of trial, the accused Kamlesh had expired and the proceedings against him were abated by my Ld. Predecessor vide order dt. 06.05.08.
3. Prosecution in support of its case in order to bring home guilt of accused has examined sixteen witnesses in all namely HC Taarif Singh (MHCM) as PW1, ASI Rajbla (Duty Officer) as PW2, Ms. Rita (prosecutrix) as PW3, L/Ct. Sudesh as PW4, Ct. Surinder as PW5, Ct. Sripal (DD Writer) as PW6, Ct. Ranbir Singh (DD Writer) as PW7, Sh. Amit Bansal (the then Ld. MM) as PW8, ASI Darshna (Investigating Officer) as PW9, Ct. Balwan as PW10, Dr. R.K. Mishra (Radiologist, RML Hospital as PW10, Ct. Mukesh Kumar as PW11, Dr. Divpreet Sahni ( Dental Surgeon, SGM Hospital) as PW12, Dr. V.K. Jha (Medical Officer, BJRM Hospital) as PW13, ASI Naresh (Investigating Officer) as 3/39 4 State Vs. Ram Kirpal FIR No. 835/06 PW14 and Dr. Brijesh Singh (CM), SGM Hospital) as PW15. It would be pertinent to mention here that inadvertently both Ct. Balwan and Dr. R.K. Mishra have been examined as Pws10. Thereafter statement of accused Ram Kirpal was recorded U/s 313 Cr.P.C. wherein he submitted that he is innocent and has been falsely implicated in the present case.
4. In the present case the most material witness upon whose testimony the entire case of prosecution rests is the prosecutrix (PW3), hence her testimony needs to be discussed on priority.
The Prosecutrix (PW3) has testified that on 14.08.06 at about 10.00/11.00 am, she had gone to collect her salary from the Kothi where she used to work and when she reached near the house of the accused Ram Kirpal, he offered her a laddoo to which she initially refused but on the insistence of accused as it was a 'Prasaad' she consumed it and after about 5- 7 minutes, she started feeling giddiness whereupon the accused called a rikshaw and made her sit in it on the pretext of taking her to the doctor after which she lost her consciousness. She has further testified that thereafter she regained her consciousness at Itawa, U.P. where the accused Ram Kirpal alongwith co-accused Kamlesh (since expired) and one more person namely Ramu (tried by Juvenile Justice Board) was present whom she requested to send her back to her parents' house, however the accused Kamlesh (Since 4/39 5 State Vs. Ram Kirpal FIR No. 835/06 expired) threatened her at the point of knife that in case she insisted to go her parents, she would be killed after which she got scared and did not utter anything. The prosecutrix has further deposed that she was kept at Itawa during that night after which she was taken to Sirathu, U.P. where she was kept for about 10 days from where she was taken to Khaga and the accused Ram Kirpal also took her to Shiv temple where he had forced her to marry him after which he got certain papers executed by her regarding solemnization of said marriage. She further testified that thereafter the Delhi police officials had apprehended the accused Ram Kirpal from Khaga, U.P. and recovered her as well and also testified that the accused Ram Kirpal had also committed sexual intercourse with her against her will and without her consent (prior her forced marriage). She has also deposed that after she was brought back to Delhi, she was also got medically examined and was produced before Ld. MM where her statement U/s 164 Cr. PC was recorded which is Ex. PW3/A and she has also identified her undergarments i.e salwar and underwear as Ex. P-1 to be the same which had been wearing at the time of incident.
During cross examination by Ld. Defence counsel, she has inter- alia stated that she was known to the accused Ram Kirpal and that the accused forcibly got her signature obtained at certain papers after extending threats to her. She also clarified that after she sat in the rikshaw, she had 5/39 6 State Vs. Ram Kirpal FIR No. 835/06 lost her consciousness and when in Itawa, U.P. the doctor had given her oral medicine, she did not talk to him and also explained that though several persons resided nearby, yet she could not converse with them as the accused had kept her there only for one night and no phone facility was available in the vicinity. She also explained that while in the bus to Sirathu, U.P., she did not tell anything to any passenger as she was under constant threatenings by the accused Ram Kirpal and also that she did not tell anything to Bua of the accused where he took her. She categorically denied if the accused had not raped her and also that "It is incorrect to suggest that I voluntarily accompanied the accused to Itawa, and thereafter to Sirathu and Khaga".
At this juncture, it would also be appropriate to discuss the testimony of the then Ld. MM Sh. Amit Bansal (PW8) who had recorded the statement of prosecutrix u/s 164 Cr. PC. He has testified that on 01.09.06, his link MM Sh. D.K. Jangala had marked an application Ex. PW8/A for recording the statement of prosecutrix u/s 164 Cr. PC and on 04.09.06, he recorded the statement of prosecutrix U/s 164 Cr. PC which is already exhibited as Ex. PW3/A and proved the certificate of correctness of said proceedings as Ex. PW8/B and also made endorsement Ex. PW8/C vide which the proceedings were directed to be sent in a sealed cover to the concerned court after which he allowed the application of Investigating 6/39 7 State Vs. Ram Kirpal FIR No. 835/06 Officer to hand him over the copy of proceedings vide his application Ex. PW8/D. It would be pertinent to mention here that PW8 was not cross examined by or on behalf of accused on any aspect whatsoever and accordingly the testimony of PW8 has remained admitted in totality by the accused without raising any iota of doubt regarding genuineness of Ex. PW3/A. As per statement of prosecutrix u/s 164 Cr. PC (Ex. PW3/A), it is revealed that she had very categorically stated that at the relevant date, time and place, the accused Ram Kirpal had kidnapped her and after administering some stupefying/ intoxicating substance, he took her to Itawa, U.P. where Ramu (Being tried by Juvenile Justice Board) and Kamlesh (since expired) were also present who threatened her to kill her at the point of knife after which the accused Ram Kirpal took her to Sirathu and Khaga (both places in U.P.) and where the accused Ram Kirpal had forcibly married her prior to which the accused Ram Kirpal had also forcibly maintained sexual relationship with her. It cannot be lost sight of that the prosecutrix has very emphatically narrated during her statement recorded u/s 164 Cr. PC i.e. Ex. PW3/A that the accused Ram Kirpal had committed the alleged offeces upon her person, yet he preferred not to cross examine her regarding the same and in these circumstances the only reasonable conclusion that can be drawn is that he has admitted in 7/39 8 State Vs. Ram Kirpal FIR No. 835/06 totality not only the statement of the prosecutrix u/s 164 Cr. PC but its contents as well in entirety. It is well settled law that if a witness is not cross examined on any point/aspect then it amounts to truthfulness of the same. The accused has nowhere given her even the suggestion that Ex. PW3/A is not a true account of the occurrence.
5. It would also be appropriate here to discuss the testimony of Dr. R.K. Mishra (PW10- Radiologist) who has testified that on 07.09.06, he was one of the members of the Medical Board (as a Radiologist) which examined the prosecutrix regarding her ossification test report and had examined the X- rays of the prosecutrix as per which the Board was of the view that on 07.09.06, the age of prosecutrix was between 13 to 15 years and further testified that no error of margin could be given as they had already given two years margin. He also deposed that the prosecutrix was not below 13 years and not above 15 years on that day and proved the said report as Ex. PW10/A. The accused has preferred not to cross examine him at all and has nowhere disputed the truthfulness of correctness contents of ossification test report of the prosecutrix which is Ex. PW10/A wherein it is specifically observed that the age of prosecutrix was not below 13 years and not above 15 years on 07.09.06 and also that no further error or margin could be given 8/39 9 State Vs. Ram Kirpal FIR No. 835/06 as they had already given margin of 2 years. The accused has preferred not to dispute the said report on any aspect whatsoever and has accepted the same in entirety including that at the relevant time, the prosecutrix was a minor and was not more then 15 years of age.
6. Dr. Divpreet Sahani (PW12) was also one of the members of the said Board who has testified that on 07.09.10, she had examined the prosecutrix and found that all third molars were un-erupted and X-rays were showing only crown formation with all third molars and proved her signature on Ex. PW10/A at point B.
7. Dr. V.K. Jha (PW13) who was the Chairman of Bone Age Estimation Board constituted to determine the age of the prosecutrix has testified that the said board consisted of himself, Dr. R.K. Mishra, Radiologist (PW10), Dr. Divpreet Sahani, Dental Surgeon and Dr. Manoj Dhingra, Forensic Expert and after dental, radiologist and forensic examination, the age of prosecutrix was determined to be between 13 years to 15 years i.e. more than 13 years and less then 15 years and proved his observation on Ex. PW10/A at point 'X' bearing his signature at point 'C'.
Dr. R. K. Mishra, Dr. Divpreet Sahni and Dr. V.K. Jha i.e 9/39 10 State Vs. Ram Kirpal FIR No. 835/06 PWs 10, 12 and 13 have categorically deposed that the age of the prosecutrix was between 13-15 years and no further error of margin could be given which has nowhere been shown to be false, fabricated or manipulated.
8. Dr. Brijesh Singh (PW15) has testified that the accused Ram Kirpal was examined by Dr. Jitender Behl (who has left the hospital and his present whereabout were not known) vide MLC Ex. PW15/A during which Dr. Jitender Behl had opined that there was nothing to suggest that the said accused was not capable of performing sexual act. He has further deposed that the undergarments and blood sample of the accused were sealed and handedover to the Investigating Officer. He has also testified that he had seen the MLC No. 13275 pertaining to the prosecutrix who was initially examined by Dr. Jitender Behl who was gynaecologically examined by Dr. Garima Trivedi (who has left the hospital and his present whereabout were not known) and has proved her MLC Ex. PW15/B bearing the signatures of Dr. Jitender Behl and Dr. Garima Trivedi at points A and B respectively and also testified that after the examination, the undergarments and vaginal swab of the prosecutrix was sealed and handover to the Investigating Office. During cross examination on behalf of accused, he stated that he has no personal knowledge of the case, however nothing is placed on record to show 10/39 11 State Vs. Ram Kirpal FIR No. 835/06 if the Dr. Brijesh Singh is deposing falsely or if at the relevant time, the accused was not able to perform sexual intercourse.
9. Ct. Sri Pal (PW6) has testified that on 15.08.06, he was working as DD Writer and at about 5.25 am, he received an information from the complainant Dinesh Kumar regarding missing of her daughter (the prosecutrix) whereupon he recorded the said information vide DD No. 29B and proved its copy as Ex. PW6/A after which it was marked to ASI Naresh Kumar (PW14) for investigation.
No cross examination was offered to this witness on any aspects whatsoever, hence recording of initial DD No. 29 B on 15.08.06 regarding missing of prosecutrix is nowhere been in dispute.
10. Lady ASI Raj Bala (PW2) has testified that on 20.08.06, she was working as duty officer and at about 11.50 am, she received a rukka as produced by Ct. Mukesh Kumar (PW11) as sent by ASI Naresh Kumar (PW14) on the basis of which she registered the present FIR and proved its copy as Ex. PW2/A. It would be appropriate to mention here that PW2 was not cross examined by or on behalf of accused on any count and despite the fact that in the said FIR, the name of the accused Ram Kirpal has been very 11/39 12 State Vs. Ram Kirpal FIR No. 835/06 categorically mentioned, yet the accused preferred not to cross examine PW2 and had admitted the version of PW2 in entirety including the contents of said FIR as genuine.
11. Ct. Ranvir Singh (PW7) has testified that on the intervening night of 30/31.08.06 at about 8.00 am, ASI Naresh Kumar (PW14) had received a telephonic information from SI Rajesh that in the present case, the prosecutrix and the accused Ram Kirpal were detained at PS Khaga, U.P. whereupon the said the information was recorded vide DD no. 42 which is proved on record as Ex. PW7/A. During cross examination by Ld. Defence counsel, he denied if DD no. 42 does not bear the name of the accused and it was manipulated.
From perusal of DD no. 42, it is clear on record that in fact the said information was received from PS Khaga, U.P. wherein it was very clearly mentioned that the prosecutrix and the accused Ram Kirpal were detained there and from cross examination of said witness, nothing is placed on record if contents of said DD no. 42 are false.
12. ASI Naresh Kumar (PW14) who is the Investigating Officer has testified that on 20.08.06, the complainant Dinesh Kumar came at the police post and got his complaint Ex. PW14/A recorded which was regarding 12/39 13 State Vs. Ram Kirpal FIR No. 835/06 kidnapping of the his daughter i.e. the prosecutrix by the accused Ram Kirpal on the basis of which he prepared rukka which is Ex. PW14/Band sent it through Ct. Mukesh Kumar (PW11) for registration of FIR and thereafter he alongwith the complainant searched for the prosecutrix but in vain. He has further deposed that on 22.08.06, he alongwith Ct. Surinder (PW5) and complainant went to PS Hussain Ganj and Hath Gaon at District Fatehpur in search of the prosecutrix and accused Ram Kirpal but in vain, however on 31.08.06 an information was received from PS Khaga Fatehpur, U.P. that the accused Ram Kirpal and the prosecutrix were detained in PS Khaga who were apprehended on suspicion which information was recorded vide DD No. 42 (Ex. PW7/A) and thereafter he alongwith Ct. Surinder (PW5), Lady ct. Sudesh (PW4) and the complainant went to PS Khaga Fatehpur, U.P. where on the identification of complainant, the prosecutrix was recovered vide recovery memo Ex. PW4/A. He has also testified that thereafter the accused Ram Kirpal was interrogated and arrested vide arrest memo Ex. PW4/B and his personal search was conducted vide memo ex. PW4/C after which he recorded statements of various prosecution witnesses and came back to Delhi and as per orders of SHO, further investigation was handover over to ASI Darshna.
During cross examination on behalf of accused, he stated that on 15.08.06, DD No. 29 (Ex. PW6/A) was recorded regarding missing of the prosecutrix in which regard he conducted preliminary investigation during 13/39 14 State Vs. Ram Kirpal FIR No. 835/06 which he went to the house where the prosecutrix used to work and also made necessary enquiry from neigbhours of prosecutrix, however he did not reduce them into writing. He has also stated that the complainant Dinesh Kumar had informed regarding whereabouts of the accused Ram Kirpal on 22.08.06 and between 20.08.06 and 22.08.06, he also informed the Missing Persons Squad and got the wireless message flashed for search of prosecutrix. He also stated that before leaving for Fatehpur, U.P., PS Hussain Ganj and Hath Gaon, he had sought requisite permission from his superior officers and also recorded arrival and departure entries. He has also stated they left Khaga in the evening of 31.08.06 and on 01.09.06, he reached at Delhi at about 7.00/7.15 am. He also stated that he had arrested the accused on 31.08.06 itself and fairly conceded that he had not recorded his disclosure statement. He also stated that at Khaga he made requisite entries regarding arrest of accused Ram Kirpal and recovery of prosecutrix and also collected copy of the same and further stated that DD Nos. 15, 20 31 pertain to his various arrival and departures and proved them on record as Exhibits. PW14/DA, PW14/DB and PW14/DC. Though Investigating Officer ASI Naresh Kumar (PW14) is cross examined at length by the accused, yet nothing is placed on record if the accused Ram Kirpal had not committed the alleged offences or was not arrested from Khaga U.P. in this case or if at the time of his arrest, the prosecutrix was not with him.
14/39 15State Vs. Ram Kirpal FIR No. 835/06
13. Ct. Surinder (PW5) has also deposed on the lines of Investigating Officer ASI Naresh Kumar (PW14), hence his examination in chief is repeated for the sake of brevity, however during cross examination by the accused, he stated that he did not remember the DD number regarding leaving for Khaga and also denied if he also did not visit PS Khaga or that the prosecutrix was not recovered in his presence.
14. Lady Ct. Sudesh (PW4) has deposed on the lines of Investigating Officer ASI Naresh Kumar (PW14), hence her examination in chief is not repeated for the sake of brevity, however she has identified the accused and also deposed that the prosecutrix remained in her custody during that period. During cross examination by Ld. Defence counsel, she stated that while leaving for Khaga, DD No. 42B was recorded and denied if she never visited Khaga or that the prosecutrix was not recovered in her presence.
It would be appropriate to mention here that PW4 had accompanied the Investigating Officer ASI Naresh Kumar (PW14), however nothing is shown on record if she did not accompany him or that the proceedings were not conducted in the manner in which she has deposed before the court.
15. Ct. Mukesh Kumar (PW11) has testified that on 20.08.06 at 15/39 16 State Vs. Ram Kirpal FIR No. 835/06 about 11.30 am, ASI Naresh Kumar (PW14) handed him over a Tehrir for registration of FIR whereupon he went to PS Nangloi and got the case registered and handed over the copy of FIR and original tehrir to ASI Naresh Kumar (PW14).
No cross examination was offered to this witness despite opportunity and accordingly the accused has nowhere disputed the registration of present FIR against him wherein the complainant Dinesh Kumar has expressed his suspicion upon him to have kidnapped his daughter i.e. the prosecutrix.
After going through the entire cross examination of this witness, nothing is placed on record if he is deposing falsely or is not narrating the true version of the occurrence or the proceedings which he had joined.
16. ASI Darshna (PW9) who is also one of the Investigating Officers case has testified that on 01.09.06, the investigation of the present case was handover to her at which point of time, the prosecutrix and the accused were in the police post and she interrogated the accused and also got the prosecutrix got medically examined at SGM Hospital at which point of time Ct. Brijesh Kumar had accompanied her and after medical examination of accused, the concerned doctor had handed her over two pullandas in sealed condition containing the undergarments and blood sample of accused alongwith one sample seal of Govt. of NCT Delhi which were seized vide 16/39 17 State Vs. Ram Kirpal FIR No. 835/06 memo Ex. PW9/A and after medical examination of prosecutrix, the concerned doctor had handed her over one pullanda in sealed condition consisting of undergarments and vaginal swab of prosecutrix which were duly sealed with the seal of Govt. of NCT Delhi alongwith sample seal which she was seized vide memo Ex. PW9/B after which she collected their MLCs as well. She has further deposed that on her application, the accused Ram Kirpal was remanded to judicial custody and vide another application Ex. PW9/C, statement of prosecutrix was recorded u/s 164 Cr. PC on 04.09.06 and after obtaining its copy, sections 328 and 506 IPC were added and on the same day itself, she had moved an application to the Medical Superintendent SGM Hospital for ossification test of prosecutrix and on 07.09.06, ossification test of the prosecutrix was conducted and she had also obtained ossification report which is marked PW9/D. She further deposed that on 15.10.06, Ct. Balwan (PW10) had collected the exhibits alongwith FSL form from MHC(M) and deposited them at CFSL Kolkata and returned back on 21.10.06 in which regard she also recorded his statement and that of MHC(M) and thereafter she submitted the case file before SHO concerned for preparation of charge sheet and after filing the charge sheet, she filed the FSL result on 19.09.07 vide her application Ex. PW9/E and proved the FSL result as Ex. PW9/F. She also deposed that the co-accused Ramu was juvenile, hence his charge sheet was filed before the Juvenile Justice 17/39 18 State Vs. Ram Kirpal FIR No. 835/06 Board.
17. In the present case, HC Taarif Singh (PW1) who was posted as MHC(M) has testified that on 01.09.06 ASI Darshna (PW9) had deposited two sealed pullandas one of which contained the undergarments of accused Ram Kirpal and his blood sample which were duly sealed with the seal of SGMH and other pullanda consisted of undergarments of prosecutrix and her vaginal swab which were duly sealed with the seal of SGMH alongwith sample seal in which regard he made relevant entry in register no. 19 at Sl. No. 5591. He has further deposed that on 15.10.09, he sent all the four sealed parcels alongwith sample seal at the office of CFSL, Kolkata through Ct. Balwan (PW10) vide RC No. 476/21/06 and proved the copy of relevant entries as Ex. PW1/A and also proved the copy of RC as Ex. PW1/B. The accused preferred not to cross examine him and accordingly the testimony of PW1 that said proceedings were conducted has remained unrebutted.
18. Ct. Balwan (PW10) has testified that on 15.10.06 at the instructions of Investigating Officer ASI Darshna (PW9), he collected the exhibits of the present case duly sealed with the seal of SGM Hospital alongwith sample seal from MHC(M) and went to Kolkata and deposited 18/39 19 State Vs. Ram Kirpal FIR No. 835/06 them at the office of FSL Kolkata vide RC No. 476/21/06 and returned to Delhi on 21.10.06 and handover the copy of RC to MHC(M). He further testified that nobody tempered with the pullanda so long as remained in his custody. He was not cross examined by or on behalf of accused on any point.
19. I have heard the final arguments as advanced by Ld. APP Sh. P. K. Samadhiya for State and Ld. Defence Counsel Sh. Aseem Bhardwaj during which Ld. APP has vehemently argued that the prosecutrix (PW3) who was minor at the relevant time who has very categorically deposed that the accused Ram Kirpal had kidnapped her on 14.08.10 after offering her a Laddoo which consisted of some stupefying/intoxicating substance due to which she felt unconscious and then the accused took her to Itawa, U.P. where co-accused Kamlesh (since expired) and Ramu (being tried by Juvenile Justice Board) had threatened her at the point of knife and thereafter the accused Ram Kirpal took her to Sirathu where he kept her for about 10 days from where he took the prosecutrix further to Khaga, U.P. and also took her to a Shiv Temple where he forced the prosecutrix to marry him and thereafter forced her to sign certain papers and also forcibly maintained sexual relationship with her and there is nothing on record if the prosecutrix has deposed falsely or that the accused Ram Kirpal has not committed the 19/39 20 State Vs. Ram Kirpal FIR No. 835/06 alleged offences. He has further submitted that the prosecutrix has been very clear in stating that the accused Ram Kirpal had repeatedly raped her at Sirathu and at Khaga, U.P. without her will and against wishes. Ld. APP has further contended that the testimony of prosecutrix has been sufficiently corroborated by the medical evidence as adduced on record and further finds necessary corroboration from the investigation and various documents which have also been duly proved on record. He has also averred that even in her statement as recorded u/s 164 Cr. PC, the prosecutrix made specific and categoric allegations against the accused regarding his kidnapping her after administering intoxicating laddoo to her and also regarding forcibly raping her and also that through Dr. D. K. Mishra (PW10), Dr. Divpreet Sahni (PW12) and Dr. V.K. Jha (PW13), the prosecution has succeeded in placing on record that at the relevant time, the prosecutrix was certainly not below 13 years of age and was not above 15 years of age which report has also been duly proved on record and no further error of margin regarding the age of prosecutrix could have been given as the board of doctors who had examined the prosecutrix had already given margin of two years of age while opining her minimum as 13 years and maximum age as 15 years.
Ld. APP has further submitted that investigation was fairly and properly conducted and all the necessary documents have been placed and proved on record and prays that since the prosecution has succeeded in bringing home the guilt of accused Ram Kirpal beyond reasonable doubt, 20/39 21 State Vs. Ram Kirpal FIR No. 835/06 hence, he must be convicted for committing the offences as punishable U/Ss 366/366/328/376 IPC.
20. Ld. Defence Counsel has vehemently argued that the prosecutrix had gone with the accused Ram Kirpal on her own who was a major at the relevant time and had been working as part time maid in various houses and at the time of going with the accused, she had dressed herself in red coloured suit and since she accompanied the accused Ram Kirpal voluntarily, hence no offence as alleged against the accused Ram Kirpal stands proved. He has further argued that the accused Ram Kirpal and the prosecutrix had married in Shiv Mandir voluntarily and also that the prosecutrix had executed certain documents pertaining to her marring the accused Ram Kirpal.
Ld. Defence counsel has further contended that as per her own version, the prosecutrix had remained with the accused for a considerable time at Khaga, U.P. where several other persons also used to reside but she did not tell anybody regarding the alleged offences committed by the accused Ram Kirpal upon her person and has further argued that when the accused Ram Kirpal took the prosecutrix to Sirathu thought they had travelled by bus, yet the prosecutrix did not tell anybody of them regarding the conduct of accused nor ever raised any hue and cry. Ld defence counsel has also submitted that the prosecutrix has stated in her testimony that the accused Ram Kirpal had taken her to the house of his Bua but she did not tell her 21/39 22 State Vs. Ram Kirpal FIR No. 835/06 anything regarding the offences or demenour of the accused and prayed that since the prosecutrix had voluntarily accompanied the accused to Itawa, U.P., Sirathu and Khaga where she married him and also maintained sexual relationship willingly, hence the accused Ram Kirpal must be acquitted of the charges levelled against him. He has further argued that the testimony of prosecutrix cannot be relied upon as she is an interested witness and there is no corroboration by any independent person and hence, it should be outrightly discarded. Ld. Defence counsel has further argued that the investigation was not conducted properly and the version of police officials are not truthful and since prosecution has failed to bring home the guilt of accused Ram Kirpal on record hence, he must be acquitted of the charges leveled against him.
21. In rebuttal, Ld. APP had submitted that keeping in view the facts and circumstances of the case and particularly the nature of offence, no corroboration to the testimony of the prosecutrix should be required to be looked for and the prosecutrix though is interested being victim at the hands of accused but the same does not points out the false implication of the accused as the interest of prosecutrix is to punish the offender who had kidnapped and raped her and in these circumstances her being interested is not a ground to reject her deposition. Ld. APP has further submitted that all the necessary documents have been proved on record which unerringly point 22/39 23 State Vs. Ram Kirpal FIR No. 835/06 out towards the guilt of accused regarding commission of alleged offences and prayed that the accused Ram Kirpal must be convicted for committing the alleged offences.
22. At this stage, it would be appropriate to discuss the relevant provision of Section 328 IPC, Section 361 IPC, Section 366 IPC and Section 375 IPC.
As per provision of Section 328 IPC -
Causing hurt by means of poison , etc. with intent to commit an offence - "Whoever administers to or causes to be taken by any person poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine".
As per provisions of Section 361 IPC that :-
Kidnapping from lawful guardianship -
"whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person 23/39 24 State Vs. Ram Kirpal FIR No. 835/06 of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship".
As per provision of Section 366 IPC -
Kidnapping, abducting or inducing woman to compel her marriage, etc. - "Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with any person shall also be punishable as aforesaid".
As per provisions of Section 375 IPC that :-
"A man is said to commit "rape" who, except in the case hereinafter expected, has sexual intercourse with a woman"
Firstly - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been 24/39 25 State Vs. Ram Kirpal FIR No. 835/06 obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she given consent.
Sixthly - With or without her consent, when she is under sixteen years of age".
23. In the present case, the most material witness is the prosecutrix and though her testimony has already been discussed at length, yet to appreciate her evidence, it would be appropriate to discuss relevant portion of her version.
Prosecutrix (PW3) has interalia testified that on 14.08.06, the accused made her consume a laddoo after eating which she felt unconscious and in that state the accused had kidnapped her and took her to Itawa from where he took her to Sirathu, U.P. where the accused Ram Kirpal had forcibly maintained sexual relationship with her against her will and without her consent and thereafter took her to Kahaga, U.P. where he forced her to marry him and also forced her to sign certain papers. She has also deposed 25/39 26 State Vs. Ram Kirpal FIR No. 835/06 that the police officials arrested the accused from Khaga, U.P. and recovered her as well and has also proved her statement as recorded u/s 164 Cr. PC as Ex. PW3/A. During lengthy cross examination by the accused, it has been placed on record that she was known to the accused and would sometimes talk to him and has fairly stated that she did not tell anybody in the bus by which the accused took her to Sirathu that accused had committed the alleged offences upon her person and did not tell the other passersby. At this stage, it cannot be lost sight of that the defence of accused is that the prosecutrix had voluntarily accompanied him to Itawa, Sirathu and Khaga at U.P. and it would be appropriate to mention at this juncture that Dr. R.K. Mishra (PW10) has proved on record the ossification test report of the prosecutrix as Ex. PW10/A and has categorically testified that the age of prosecutrix was between 13 years to 15 years and also that no further error of margin could be given as the Board has already been given two years' margin and the prosecutrix was not below 13 years and not more then 15 years at the relevant time which has nowhere been rebutted or disputed by or on behalf of accused and the accused accordingly has very fairly conceded that at the relevant time when he had taken the prosecutrix along with him, her age was less than 16 years 26/39 27 State Vs. Ram Kirpal FIR No. 835/06 and she was undoubtedly a minor. It would also be worth mentioning that in her statement as recorded u/s 164 Cr. PC, the prosecutrix has been very specific in stating that the accused had not only taken her after administering the laddoo after eating which she lost her consciousness but had sexual intercourse with her against her will and without her consent and even before the court she has been very categoric in stating that the accused Ram Kirpal had maintained sexual relationship with her against her wishes and when she resisted she was intimidated as well. The then Ld. MM Sh. Amit Bansal who had recorded the statement of prosecutrix U/s 164 Cr. PC has also duly proved the said statement and also that the prosecutrix had made the said statement voluntarily on her own and also certified the correctness of proceedings which also have nowhere disputed by the accused. As per provisions of section 375 IPC, if a person maintains sexual relationship with a woman/girl who is under 16 years of age, it is Rape and the consent of that woman/girl is immaterial.
In the present case, there is nothing on record to show if the accused had not taken the prosecutrix with him who was a minor at the relevant time from the custody of her parents without their consent. It is also established that in order or such taking the accused had forced the prosecutrix to eat a laddoo after which she got unconscious and the only reasonable conclusion that can be drawn is that the said laddoo must have 27/39 28 State Vs. Ram Kirpal FIR No. 835/06 contained some stupefying/intoxicating substance which resulted into loss of conscious of the prosecutrix. It would be pertinent to mention that the prosecutrix has been very categoric in stating regarding the above, yet nothing has come on record during cross examination by the accused to rebut or shatter or falsify the testimony of the prosecutrix.
Now so far as 'interestedness' is concerned, it cannot be lost sight of that the prosecutrix is a victim who must be certainly interested to the extent that the agressor/assailant must be punished but nothings is shown as to how she would be interested in falsely implicating the accused by leaving the real culprit and why she would do so. No motive of false implication has been shown by the accused and the accused has simply stated that he had some dispute with father of prosecutrix, hence his false implication does not inspire confidence of the court, more so when testimony of the prosecutrix is incriminating and is nowhere shown to be false or fabricated. In fact nothing has been put to the prosecutrix during her cross examination regarding false implication of accused in such a serious offence and the accused himself has put to the prosecutrix that she herself voluntarily accompanied him which she has denied. It cannot be lost sight of that the matter was promptly reported to the police officials and in pursuance of investigation, the police officials had flashed the message and in turn were informed from police officials of PS Khaga, U.P. that the accused and the prosecutrix were detained due to suspicion and from there, the accused was arrested and the 28/39 29 State Vs. Ram Kirpal FIR No. 835/06 prosecutrix was recovered who were already detained in PS Khaga due to suspicion. The entire investigation has been duly proved on record and it would be worth mentioning that the FIR which is proved on record as Ex. PW2/A has nowhere been shown to be false or manipulated wherein the father of prosecutrix has expressed his suspicion over the accused and it was from possession of the accused Ram Kirpal that the prosecutrix was recovered. Various police officials who had conducted and joined the investigation have deposed before the court the detailed investigation conducted in the case and have duly proved on record not only the detailed investigation conducted by them but various documents prepared by them which have nowhere been shown to be false or fabricated.
As per record, no material discrepancy has crept in on record in the deposition of prosecutrix qua her complaint/statement as recorded by the police officials or qua her statement as recorded u/s 164 Cr. PC which can be fatal to the case of prosecution and rather she has deposed before the court even what she had earlier narrated in her previous aforesaid statements whether it was before police officials or before the Ld. link MM.
In the present case, the prosecutrix (PW3) has levelled very specific, clear and categoric allegations against the accused Ram Kirpal and without mincing words, she has narrated the conduct of accused and his raping her as well (i.e. maintaining sexual relationship by the accused with the prosecutrix without her consent and against her will) as also his 29/39 30 State Vs. Ram Kirpal FIR No. 835/06 extending threats to her for not revealing the incident to anyone. There is nothing on record to show if the prosecutrix has not deposed before the Court the true version of the incident nor it is shown that the accused Ram Kirpal did not commit the alleged offences upon her person including repeatedly raping her.
In these circumstances, simply because the prosecutrix has given incriminating evidence against the accused Ram Kirpal or is interested being victim is not sufficient to discard her version as there is no reason as to why she would leave the real culprit and implicate the accused falsely.
The testimony of prosecutrix is also scrutinized in the light of medical evidence, her previous statement, the earliest version as put forward by her and as such there does not seem any discrepancy or omission of any material facts. The testimony of prosecutrix has inspired confidence of the Court in so far as she has come forward with narration of truthful version of the incident and her testimony does not suffer from any artificiality or exaggeration or material discrepancy which can go to the root of the matter and shake her basic version and as such there is no reason as to why the testimony of the prosecutrix be disbelieved or corroboration by any independent person is required to be looked forward as none is expected to remain present at the relevant time and it is well settled law that corroboration is not the sine-qua-non for a conviction in a Rape case. In this view, I am supported by the judgments of the Hon'ble Apex Court in cases 30/39 31 State Vs. Ram Kirpal FIR No. 835/06 titled as Paresh Kalyandas Bhavsar Vs. Sadiq Yakubbhai Jamadar, AIR 1993 SC 1544 and Bharwada Bhoginbai Hirjibhai Vs. State of Gujrat AIR 1983 SC 753.
The contention of the accused that he had married the prosecutrix in Shiv Mandir and also that the prosecutrix executed pepers regarding said marriage is falsified by the prosecutrix as she has very emphatically deposed that the accused forced her to marry him in the temple at Khaga, U.P., however she herself has deposed that even prior to that, the accused in Sirathu had forcibly maintained sexual intercourse with her without her consent and against her will and without mincing words she stated that the accused forced her to marry him and such a marriage is not valid in the eyes of law. The accused has miserably failed to prove if any documents at all were executed by the prosecutrix regarding said marriage.
Now as far as the contention of the accused that the prosecutrix did not tell any neighbiours or passengers in the bus regarding his said behaviour is concerned, it cannot be lost sight of that admittedly the prosecutrix who was a minor was under constant threat by the accused. The which has nowhere been controverted, rebutted or challenged by the accused. Above all, it cannot be over looked that whosoever maintains sexual relationship with a girl who is under sixteen years of age is guilty of committing Rape even if the said girl has consented as her consent is 31/39 32 State Vs. Ram Kirpal FIR No. 835/06 absolutely immaterial.
Considering the totality of facts and circumstances of the case, on the basis of material placed on record and in view of above discussion, Court is of the considered opinion that sufficient corroboration is available on record to the testimony of prosecutrix through the medical documents and other documents prepared and proved during the course of investigation. The ocular versions of prosecution witnesses, particularly the prosecutrix regarding commission of alleged offence is worthy of credence and must be believed which have also been duly corroborated on record by documentary evidence on all essential aspects. The witnesses examined by the prosecution are cogent, convincing and inspire confidence of the court in so far as that they come with true picture of the incident and there is no hesitation in reaching to the conclusion that the accused Ram Kirpal had kidnapped the prosecutrix (PW3- who was a minor) on 14.08.06 at the relevant time with such intention so that she may be compelled to marry him against her wish or in order that she may be forced or seduced to illicit intercourse or knowing it likely that she would be forced to illicit intercourse for which purpose the accused had also administered a laddoo consisting of stupefying/ intoxicating substance to her with intent to facilitate commission of offence of kidnapping and after she lost her conscious, he took her to Itawa, Sirathu and Khaga U.P. where he had forcibly raped her without her consent and without her will. Accordingly accused Ram Kirpal is convicted 32/39 33 State Vs. Ram Kirpal FIR No. 835/06 for committing the offences punishable U/Ss 328/363/366/376 IPC. Let he be heard on point of sentence.
Announced in the open Court (BARKHA GUPTA)
on this 26th day of May 2010 Additional Sessions Judge - IV
Outer District
Rohini District Courts
Delhi
33/39