Delhi District Court
State vs :- 1- Mukesh @ Vicky Kumar, on 19 January, 2010
1
IN THE COURT OF SH. BHARAT PARASHAR:ASJ-II (NW
DISTT.):ROHINI:DELHI
S.C.NO.1085/09
STATE VERSUS:- 1- MUKESH @ VICKY KUMAR,
S/O SH. SADANAND,
R/O VPO BADA MUKAND PUR,
PS GOPAL PUR, DISTT. BHAGALPUR,
BIHAR.
2- PANKAJ @ VICKY - (SINCE P.O.)
FIR NO.816/06
U/S 328/34 IPC, 366/34 IPC, 376 IPC and 506/34 IPC.
PS ADARSH NAGAR
DATE OF INSTITUTION IN SESSIONS COURT: 27-7-2009
DATE OF HEARING: 19-1-2010
DATE ON WHICH JUDGMENT PRONOUNCED:19-1-2010.
JUDGMENT
Briefly stated the case of the prosecution as unfolded by the report U/S 173 Cr.PC is as under :
"On 6-12-2006 a missing report was lodged at PS Adarsh Nagar by one Mohd. Harun Khan regarding his daughter "A" (name of the prosecutrix has been changed as it is a case u/S 376 IPC) since 2-12-2006 from his house. Thereafter, when she could not be traced for a number of days so on 19-12-2006 Mohd. Harun Khan got recorded his complaint stating that her daughter has probably been abducted by someone. On the basis of his statement a rukka was prepared and a case was got registered at PS Adarsh Nagar for the offence U/S 365 IPC. During the S/V MUKESH ETC., FIR NO.816/06, PS ADARSH NAGAR 2 course of investigation which was carried out by ASI Gopiram he came to know that one of the neighbourer, namely, Mukesh @ Vicky was also missing since 2-12-06. Upon making inquiry at the village of Mukesh in Bihar at PS Bhagalpur, ASI Gopiram came to know that Mukesh had reached along with the missing girl over there. Upon reaching PS Gokulpur, the SHO informed ASI Gopiram that pursuant to orders of S.P. Jogachiya said Mukesh and the missing girl have been made to stay at PS Nogachiya. ASI Gopiram accordingly went to PS Nogachiya and where SHO, PS Nogachiya, namely, Sanjay Kumar informed that they had caught hold of Mukesh and the said girl on the basis of suspicion when they were found sitting inside a park. They were accordingly taken into custody by ASI Gopiram but, the girl refused to make any statement and stated that she will make her statement only after reaching Delhi. ASI Gopiram thereafter directed Mukesh to join investigation in Delhi on 30- 12-06 and along with the girl returned to Delhi. After reaching Delhi she stated that she was abducted away by Mukesh. Statement of the prosecutrix was also got recorded u/S 164 Cr.PC. Thereafter, when Mukesh again joined the investigation then he was interrogated and on the basis of the statement of the prosecutrix he was arrested. He also made a disclosure statement which was reduced into writing. He also disclosed about the involvement of his brother Pankaj in abducting the prosecutrix. Both Mukesh @ Vicky and prosecutrix were taken to hospital for their medical examination but, they both refused to get them medically S/V MUKESH ETC., FIR NO.816/06, PS ADARSH NAGAR 3 examined. On the basis of statement of prosecutrix that she was made to smell some intoxicating substance by accused so, Section 328 IPC besides Section 366/376/506 IPC were also invoked against the accused. The brother of accused Mukesh, namely, Pankaj however could not be arrested and thus upon completion of necessary further investigation challan was prepared and was filed in the court for trial as against accused Mukesh @ Vicky".
Upon committal of the case to the court of sessions, charge for the offence U/S 328/34 IPC, 366/34 IPC, 376 IPC and 506/34 IPC was framed against accused Mukesh to which he pleaded not guilty and claimed trial.
Prosecution thereafter in order to prove its case examined 7 witnesses.
Accused was thereafter examined U/S 313 Cr. PC. He however did not lead any evidence in his defence.
PW4 was the prosecutrix herself. She deposed that on 2-12-06 she had gone along with her cousin brother Gulab to market to make a call to her husband in Dubai. She however stated that as she forgot the phone number at her house so, her brother had gone back to the house to take the number of her husband. She further stated that in the meantime accused Vicky, who was residing as a tenant in their house came over there along with his brother Pankaj and he put some cloth on her face and as a result she became unconscious. She further stated that S/V MUKESH ETC., FIR NO.816/06, PS ADARSH NAGAR 4 when later on she regained consciousness she found herself in the custody of accused Mukesh and his brother Pankaj and when she started crying then they told her that they had brought her to Chandigarh. She further stated that she was kept over there for 12-13 days and accused Mukesh committed rape upon her during those days. She further stated that later on she came to know that she was not in Chandigarh but, in village Lattipur, Distt. Bhagalpur, Bihar. She further stated that later on police reached over there along with her brother and she was brought back to Delhi along with accused Mukesh. She further stated that accused wanted to marry with her forcibly. She further stated that her statement u/S 164 Cr.PC Ex.PW4/B was also recorded upon reaching Delhi.
I shall be discussing the deposition of the prosecutrix in detail at a later stage of my judgment.
PW2 ASI Dinesh Kumar was the duty officer, PS Adarsh Nagar on 19-12-06, who had recorded FIR Ex.PW2/A in the present matter after a rukka was handed over to him by IO/ASI Gopiram.
PW3 Dr. Shakuntla proved the MLC Ex.PW3/A of prosecutrix which was in the hand of Dr. Veena Gupta, who had endorsed that prosecutrix had refused for her medical examination. She had to enter the witness box as Dr. Veena Gupta was not available.
PW5 Mohd. Harun Khan was the complainant. He deposed that in the month of December, 2006 his daughter went missing after she S/V MUKESH ETC., FIR NO.816/06, PS ADARSH NAGAR 5 had gone to the market to make a telephone call to her husband in Dubai. He also proved his complaint lodged with the police. He further stated that later on his daughter was recovered by the police on 27/28- 12-2006 from Bihar.
PW6 Mohd. Irfan Khan was the brother of prosecutrix. After his sister went missing so, he had accompanied ASI Gopiram initially to Chandigarh and thereafter to Bhagalpur, Bihar and to PS Nogachiya and in his presence ASI Gopiram had recovered his sister.
PW7 Ct. Manoj Kumar had also accompanied ASI Gopiram to PS Nogachiya, Bihar, Distt. Bhagalpur and from where prosecutrix was recovered by ASI Gopiram and accused was directed to join the investigation in Delhi.
PW1 HC Usha had joined the investigation with IO/ASI Gopiram on 30-12-06 when accused Mukesh was arrested and she had taken prosecutrix to BJRM Hospital for her medical examination.
Accused in his statement U/S 313 Cr.PC however stated the case of the prosecution to be false and the prosecution witnesses to be deposing falsely. He though admitted that prosecutrix had gone along with him to Bihar but, he stated that she had gone voluntarily with him and there was no element of force, inducement or enticement on his part in taking her away. He also stated that he had sexual intercourse with the prosecutrix on her own free will and consent. He thus claimed himself to be innocent.
S/V MUKESH ETC., FIR NO.816/06, PS ADARSH NAGAR 6 I have heard ld. APP as well as learned counsel Sh. Jagat Singh for accused at length and carefully perused the record.
At the outset, I may state that in so far as the issue of age of prosecutrix is concerned, there is no dispute in as much as the prosecution case itself states her age to be about 22 years at the time of incident. It is also clear from the deposition of the prosecutrix and has also not been disputed by the accused in his statement u/S 313 Cr.PC that he along with prosecutrix had gone to Bihar and they both had sexual intercourse with each other. The short question which thus remains to be ascertained is as to whether accused had abducted the prosecutrix along with his brother or prosecutrix had voluntarily gone along with him. It also needs to be ascertained as to whether the alleged incident of sexual intercourse took place between the accused and the prosecutrix with the consent and wishes of prosecutrix or against her consent and wishes.
Clearly, we have on record the deposition of prosecutrix only to arrive at an answer to the aforesaid questions. Prosecutrix in her cross- examination stated that accused had taken her to Chandigarh in a bus. She further stated that initially accused had taken her in a TSR to ISBT and from there they boarded a bus. She further stated that she regained some consciousness when she was still sitting in the TSR. She further stated that she regained complete consciousness however upon reaching Chandigarh only. She also stated that at Chandigarh bus stand number of persons were present but, she had not told anyone that accused had S/V MUKESH ETC., FIR NO.816/06, PS ADARSH NAGAR 7 brought her forcibly. She further stated that they stayed in Chandigarh for about 12-13 days and accused used to cook food for them. She further stated that 4-5 other persons used to live in the adjacent room in which they were living. She however stated that she did tell said 4-5 other persons that accused had forcibly brought her to Chandigarh but, further stated that she had not told this fact to the police. She further stated that a marriage took place between her and accused at Chandigarh but, stated that no 'phera' ceremony or exchange of garlands took place. She was however confronted with some photographs by learned defence counsel where there were garlands in her hand and that of accused and where accused was putting vermilion in her hair. She however stated that those photographs were taken forcibly. She further stated that there were 3-4 persons present along with the accused at the time of said marriage and that all the ceremonies were performed in the STD booth in the presence of photographer but, no "pandit" was present. She further stated that she had not told anything to photographer as accused had threatened her to kill. She also stated that from the room accused had taken her to the place of marriage in a TSR. She further stated that at the time of marriage she was not fully conscious. She further stated that accused thereafter took her to Bihar from Chandigarh in a train but, on the way she was not allowed to talk to anyone and they reached Bihar after two days of train journey. She further stated that there were many passengers in the train but, she did not raise any alarm and also did not S/V MUKESH ETC., FIR NO.816/06, PS ADARSH NAGAR 8 complain to co-passenger. She further stated that whenever accused wanted to ease himself then, he used to take her along inside the toilet or when she had to ease herself then accused used to stand guard outside the toilet. She further stated that she had not made any complaint to the railway police on the way and that at railway station in Bihar no police man was present. She further stated that from the station they had gone to the house of accused in a TSR and accused had initially taken her to the house of his sister and she had made complaint to the sister of accused and other persons present. She further stated that she remained over there for 12-13 days and she used to be kept locked in the house whenever accused used to go out. She further stated that later on they were produced before SSP- Nogachiya but, she had not stated before him that accused had forcefully brought her over there. She further stated that she did state before SSP- Nogachiya that she wanted to live with accused out of love. She however stated that she was forced to state the said facts by the relatives of accused. She was also shown some newspaper clippings by learned defence counsel wherein she was shown giving food to the accused. She denied having stated to the police in Bihar or the press reporter that she had extended her hand towards the accused or that on her persuasion accused ran away with her or that she had married with accused in "Mansa Devi Temple".
I have deliberately reproduced the cross-examination of the prosecutrix as on the face of it, it is apparent that prosecutrix, who was a S/V MUKESH ETC., FIR NO.816/06, PS ADARSH NAGAR 9 grown up a lady, aged about 22 years or so had ample opportunity to raise hue and cry and to make complaint to public persons in general and even to the police, who must be present at ISBT in Delhi or at Chandigarh bus stand or at Chandigarh railway station or still at Bhagalpur railway station. Moreover, when prosecutrix was produced before SSP-Nogachiya then also she did not make any complaint against the accused and rather stated that she had come voluntarily with the accused. At the same time it is highly unbelievable that a grown up lady in unconsciousness condition can be dragged by two persons firstly in a TSR and thereafter in a bus to Chandigarh without arousing suspicion of anyone on the way. It is thus crystal clear that prosecutrix chose to make a different statement after reaching Delhi probably under the pressure of her parents or other family members. It is highly improbable that prosecutrix resided along with accused for 12-13 days initially at Chandigarh and thereafter at Bhagalpur and did not attract attention of anyone at either of the two places. The newspaper clippings also corroborates the aforesaid conclusion.
A reading of the charge sheet also shows that after accused and prosecutrix were found present at PS Nogachiya by IO/ASI Gopiram then, he did not arrest accused Mukesh at that time but, only chose to give him notice u/S 160 Cr.PC to join the investigation at Delhi on 30-12-
06. This fact clearly suggests that prosecutrix had not levelled any allegations of commission of any offence against the accused, for S/V MUKESH ETC., FIR NO.816/06, PS ADARSH NAGAR 10 otherwise ASI-Gopiram would have immediately arrested accused over there itself.
In view of my aforesaid discussion thus nothing is left in the prosecution case to be discussed about. It is clear that prosecutrix had voluntarily accompanied the accused and it cannot be inferred from the overall facts & circumstances of the present case that she was threatened by the accused or was forcibly abducted away or was induced or enticed away in any manner. The prosecution has clearly failed in proving that the element of consent on the part of prosecutrix was missing in all the acts of accused. The story of prosecutrix that accused had put on her face some 'hanky' which made her unconscious also does not inspire confidence.
I accordingly hereby giving benefit of doubt to accused Mukesh @ Vicky, acquit him of the offence U/S 328/34 IPC, 366/34 IPC, 376 IPC and 506/34 IPC. The aforesaid findings also hold ground qua co- accused Pankaj. Thus vide the present judgment, I also hereby withdraw the declaration of proclaimed offender as against co-accused Pankaj, who has since been declared a proclaimed offender.
Intimation in this regard be sent to concerned police station. Bail bond of accused-Mukesh stands cancelled and his surety is discharged.
S/V MUKESH ETC., FIR NO.816/06, PS ADARSH NAGAR 11 Documents of his surety, if any be returned forthwith. File be consigned to record room.
Announced in the open court on 19-1-2010.
(BHARAT PARASHAR) ADDITIONAL SESSIONS JUDGE-II (NW DISTT.) ROHINI COURTS:DELHI *rk S/V MUKESH ETC., FIR NO.816/06, PS ADARSH NAGAR 12 FIR NO.816/06, PS ADARSH NAGAR.
19-1-2010 Present : Ld. APP for the State.
Accused is present on bail along with ld. counsel Sh. Jagat Singh.
No PW is present.
In the present case, the prosecutrix has already been examined.
The father of prosecutrix and brother of prosecutrix have also been already examined.
IO/ASI Gopiram is stated to have since expired. From a perusal of the nature of deposition of the prosecutrix and her cross-examination I deem it appropriate to close the prosecution evidence as sufficient opportunities have already been given to the prosecution.
On the other hand, ld. APP has however sought an adjournment stating that even today some of the witnesses viz ld. MM Sh. Sanjay Khanagwal and Ct. Sunil Kumar have been served though not present besides Dr. Rakesh Kumar and they may be summoned again on the next date of hearing. However, as already observed by me herein above, in view of the nature of deposition of the prosecutrix, who admittedly was a lady, aged about 22 years or so at the time of incident, the request of ld. APP cannot be acceded to and is hereby rejected. The prosecution evidence is closed.
Statement of accused u/S 313 Cr.PC has been recorded. I have heard the arguments and carefully perused the record. Vide my separate detailed judgment dated 19-1-2010 accused Mukesh @ Vicky Kumar has been acquitted of the offence U/S 328/34 IPC, 366/34 IPC, 376 IPC and 506/34 IPC.
S/V MUKESH ETC., FIR NO.816/06, PS ADARSH NAGAR 13 /2/ Vide the said judgment, I have also withdrawn the declaration of proclaimed offender as against co-accused Pankaj, who has since been declared a proclaimed offender.
Let necessary intimation be sent to concerned SHO, PS Adarsh Nagar.
Bail bond of accused-Mukesh stands cancelled and his surety is discharged.
Documents of his surety, if any be returned forthwith. File be consigned to record room.
Announced in the open court on 19-1-2010.
(BHARAT PARASHAR) ASJ:ROHINI:DELHI /19-1-2010 At this stage, ld. MM Sh.Sanjay Khanagwal from Karkardooma Courts is present but, he is discharged unexamined as accused has already been acquitted.
File be consigned to record room.
(BHARAT PARASHAR)
*rk ASJ:ROHINI:DELHI /19-1-2010
S/V MUKESH ETC., FIR NO.816/06, PS ADARSH NAGAR