Delhi District Court
State vs 1. Subhash on 4 February, 2009
1
IN THE COURT OF SHRI NAROTTAM KAUSHAL:
ADDITIONAL SESSIONS JUDGE-02, N/W:ROHINI COURTS:DELHI
Date of Institution:- 13.1.2006
Date on which reserved for order: 23.1.2009
Date of order: 4.2.2009
State Versus 1. Subhash
S/o Shri Prahad Singh
R/o E-1326 Jahangirpuri, Delhi
2. Neeraj (P.O)
S/o Sarwan Singh
R/o E-1326, Jahangir puri, Delhi.
Sessions Case No.107/06
FIR No.429/04
U/s 363/376/34 of IPC
P.S. Jhangir Puri, Delhi.
JUDGMENT
1.1 Accused Subhash, Neeraj (P.O) and Vicky (Juvenile) were charge sheeted by P.S. Jahangirpuri to face trial for the offences punishable under section 363/376 read with section 34 of IPC. Accused Vicky being Juvenile was produced before Juvenile Justice Court. Only accused Subhash has faced the trial before this court.
2.1 On 7.6.2004 Rajinder Singh s/o Chet Ram appeared at P.S. Jahangirpuri and got recorded his statement, that he was employed as a Mason. On that day at about 7.30 am, he left for work and returned home at 2 about 3.30 pm. On returning home, he learnt that his daughter namely 'L'(real name concealed) aged 14 years 7 month had been missing. He gave description of his daughter and the clothes which she was wearing. He had searched for his daughter in the neighbourhood, but in vain. He further stated that he had come to know that his daughter had been enticed away by one Vicky S/o Ramesh. His daughter had also taken away, Rs.20,000/- from the house.
2.2 On the complaint abovesaid, FIR U/s 363 read with section 34 of IPC was registered and the investigation was handed over to ASI Jor Singh. Wireless message was transmitted all over India. On 12.6.2004 complainant Rajinder Singh produced his daughter before the IO. She was medico legally examined. Pullandas were seized, sealed and deposited in the malkhana. Her statement U/s 161 Cr.P.C. was got recorded on 25.6.2004. On the basis of her statement, accused Subhash were arrested and medico legally examined. Co-accused Vicky and Neeraj were searched, NBWs were sought and proceedings U/s 82-83 Cr.P.C. carried out. Accused Neeraj was declared P.O. Samples were sent to FSL and finding sufficient material against accused Subhash, he was charge sheeted. Offence Under section 376 3 of IPC was also added.
3.1 After complying with the provisions of section 207 Cr.P.C, the trial was committed to the Court of Sessions, which in turn was marked to the predecessor of this court. Vide order dt. 6.12.2004, the predecessor of this court framed charge against the accused for the offence punishable U/s 376 of IPC. Accused pleaded not guilty and claimed trial. 3.2 The prosecution in support of its case examined 13 witnesses. The prosecution evidence was closed on the statement of the Ld. Addl. PP. Incriminating evidence had come up against the accused was put to him and his statement under section 313 Cr.P.C was recorded. He denied the evidence to be correct.
4.1 Prosecutrix 'L' was examined as PW1. She proved the entire occurrence. Rajinder Singh (PW2), the complainant proved his complaint and the date of birth of his daughter and her recovery. Chander Kala (PW3) is the mother of co-accused Neeraj and mother in law of the present accused. She proved that prosecutrix had been brought to her house by third accused Vicky (Juvenile). She was declared hostile by the State and cross examined by Ld. Addl. PP.
4.2 Dr. Shipra Rampal (PW4) proved the bone age of the prosecutrix 4 to be between 18-19 years. Dr. Shakuntla (PW5) and Dr. Sanjay Kumar (PW6) proved the MLC of the Prosecutrix. Dr. Sanjay Kumar (PW6) also proved the MLC of the accused.
4.3 The remaining witnesses are formal, who have proved various stages of investigation.
5.1 Shri R.K.Tanwar, Ld. Addl. PP for the state has argued that the prosecutrix PW1 has clearly deposed that accused committed rape upon her. She had made similar statement u/s 164 of Cr.P.C. before the Ld.MM. Her MLC Ex.PW5/A and Ex.PW6/A records hymens to be absent. Thus, indicating that there was a sexual intercourse. MLC of accused Ex.PW6/B records him to be fit to perform sexual intercourse. There is no reason to disbelieve the testimony of the prosecutrix. It is settled preposition of law that no woman makes a false assertion against her virtue. No irregularities have been noticed in the investigation, so as to vitiate the trial. 5.2 Shri Aseem Bhardwaj, Ld. Amicus- curaie on behalf of the accused has strongly contested the charges. It is submitted that the prosecutrix had eloped with one Vicky (Juvenile). Said Vicky dumped the prosecutrix in the house of his friend Neeraj (P.O). Accused who is brother 5 in law of accused Neeraj (P.O) and being elder in the family brought the girl back to her parents house. Annoyed by this conduct of the accused, he was falsely implicated in the present case. It is argued that the MLC of prosecutrix Ex.PW5/A indicates her to be having an old, healed tear in the hymen. Her age has been opined between 18-19 years. She has herself deposed that she had previously also maintained sexual relationship, though forcibly with Vicky and his friend. It is also argued by Shri Bhardwaj that the story put forth by the prosecutrix of having escaped from the clutches of the present accused and then having ran away to a Mandir and finally reaching Delhi by begging money is not substantiated at all. Bald testimony of the prosecutrix, who had eloped with her lover Vicky (Juvenile) carrying away Rs.20,000/- from her house cannot be believed.
6.1 I have heard the Ld. counsels ands perused the evidence on record. The most important witness of the present trial is prosecutrix 'L' (PW1). She had eloped from her father's house on 7.6.2004 carrying away Rs.20,000/-. She returned home of her own on 11.6.2004. In her deposition before this court, she has stated that she left her house on receiving a phone call from Vicky. She was frightened on receiving call from Vicky as he and 6 his friend had raped her about two months earlier. Rajinder Singh (PW2) has deposed that an amount of Rs.20,000/- lying in his house also went missing with his daughter. In my opinion, both these versions cannot be reconciled. If the prosecutrix ran away carrying Rs.20,000/- from her house, it cannot be because of fear of accused Vicky (Juvenile). If she had previously been subjected to forcible sexual intercourse by Vicky and she again went in his company carrying away Rs.20,000/- in cash; the logical conclusion indicates elopement. However, I shall not record any finding on this aspect, as accused Vicky is facing trial before Juvenile Court. Nevertheless, this inconsistent version indicates that the prosecutrix is not stating the entire truth.
6.2 The prosecutrix has also deposed her date of birth to be 16.10.89.She was thu less than 15 years of age at the time of occurrence. PW4 Dr. Shipra Rampal had conducted the ossification test. She has opined the age of the prosecutrix to be between 18-19 years. It is settled law that there is a margin of error in the ossification test report. But even after considering the margin of error, the age of the prosecutrix does not come to be less than 15 years. Thus, the testimony of the prosecutrix on this aspect is 7 also doubtful.
6.3As regards the role of the present accused, prosecutrix has deposed that Vicky (Juvenile) left her at the house of accused Neeraj (P.O). Neeraj's mother called accused Subhash, who is brother in law of accused Neeraj, and directed him to drop the prosecutrix at her house. Accused took her with him to the house of one Kamla, whom he was addressing as his sister. At the house of Kamla, accused Subhash raped her. On being cross examined, prosecutrix deposed that there was only one room in the house of Kamla, where Kamla, her husband and their children were present in the hut. I find force in the argument of Ld. defence counsel that in the room where another couple and children were present,the rape could not have taken place; especially when the lady in the room was sister of the accused.
6.4 The manner in which the prosecutrix claims to have escaped from the custody of accused Subhash also raises certain doubts. She has deposed that one of her ear-rings fell down, when she was scuffling with Subhash. Accused Subhash and his Jija started searching for the ear-ring. On finding an opportunity,she escaped and after seeking lift from truck driver 8 and a tractor driver, she reached a temple and stayed the night in a temple. Next day, she begged money from a shopkeeper and reached Delhi. This part of her testimony could have been easily corroborated during investigation. IO has chosen not to take her to the Mandir where she had stayed for the night. IO has also not examined the shopkeeper, from whom she begged money to come to Delhi. The second ear-ring of the set, was not seized during investigation nor produced before the Court. The manner of escape deposed by the prosecutrix seems too imaginary to be trust worthy. 6.5 For the aforesaid reasons, I am of the opinion that the testimony of the prosecutrix cannot be accepted to be a gossple truth. In Aman Kumar Versus State of Haryana, 2004 Cr.L.J 1399, the Hon'ble Supreme Court has held that the evidence of the prosecutrix does not need corroboration. However, if doubtful court may look for assurance, short of corroboration. In Bakhtawar Singh Versus State of Punjab 2006(3) RCR-642 (P & H), it was held that the argument that a lady will not put her character at stake is not a universal truth.
6.6 Reference must also be made to the testimony of the IO,ASI Johar Singh (PW13). He has proved the entire investigation carried out by 9 him after the prosecutrix surfaced in Delhi. He got her medical examination conducted, her statement U/s 164 of Cr.P.C. recorded and arrested the accused at her instance. He has not deposed as to what investigation, he carried out to corroborate the version of the prosecutrix, as regards her escape. On being cross examined by the Ld. Defence counsel, he admitted that he had not taken the prosecutrix to Mathura where the alleged offence had taken place. He had also not taken the prosecutrix to the temple at Mathura where she has allegedly stayed for two days. He had not recorded the statement of any neighbourers of co-accused Neeraj from where the accused is alleged to have got the custody of the prosecutrix. 6.7. Scientific evidence to corroborate sexual intercourse, is of no help to the prosecution. FSL report Ex PX did not detect semen in the panty or vaginal smear or hair clippings of the prosecutrix. Moreover, these samples having been taken, about two days after the alleged occurrence, were in any case of no help to the prosecution MLC Ex.PW5/A and Ex.PW6/A do not record any fresh injury on the private parts of the prosecutrix, to indicate any forcible sexual intercourse. Similarly MLC of the accused Ex.PW6/B also did not record any injury, so as to suggest struggle.
106.8 For the aforesaid reasons, I am of the opinion that accused Subhash is entitled to benefit of doubt. He is accordingly acquitted. Personal bond and surety bond are canceled. Surety is discharged. File be consigned to Record Room.
Announced in open court:- NAROTTAM KAUSHAL 4.2.2009. ASJ-02 N/W Rohini Courts,Delhi.