Delhi District Court
State vs . Rahul on 4 August, 2014
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 23/13)
Unique ID case No. 02404R0047502013
State Vs. Rahul
FIR No. : 25/12
U/s : 363/376 IPC
P.S. : Aman Vihar
State Vs. Rahul
S/o Inder Pal
R/o MCD Flats No. 257,
Block13, Sector20,
Rohini, Delhi.
Date of institution of case 11.03.2013
Date on which, judgment has been reserved 04.08.2014
Date of pronouncement of judgment : 04.08.2014
JUDGMENT:
1. Briefly stated the case of the prosecution is that the victim child P went missing from her house on 29.01.2012. A missing report was filed on 30.01.2012, which was registered vide DD no. 18A dated 30.01.2012 at PS Aman Vihar and was marked to PW17 SI Amarjeet Rana for inquiry. The PW17 SI Amarjeet Rana proceeded to the informed place i.e. C12, Karan Vihar, PartV, near Gas Godown S.C. No. 23/13 : State vs. Rahul : Page 1 of 28 Road, however, she did not find complainant there. She contacted the complainant on his mobile phone and found that complainant was one Pintu, maternal uncle of the victim, and that he was busy searching for the victim P. Accordingly, PW17 SI Amarjeet Rana returned back to the PS. In the evening, said Pintu came to Police Station Aman Vihar himself and informed PW17 SI Amarjeet Rana that he was unable to trace victim P. He gave his statement Ex. PW2/A, pursuant to which, the FIR was registered in the present case and investigations were commenced. Despite search, there was no clue of the victim P. On 31.01.2012, complainant Pintu came to PS with prosecutrix P. The PW17 SI Amarjeet Rana prepared recovery memo of victim P and tried to inquire from her about her whereabouts, during the period, she had been missing. The victim P was unable to tell anything to the IO, as she was in perplexed state. The PW17, SI Amarjeet Rana, took the victim for medical examination to hospital, where she got victim examined under supervision of W/Ct. Manju and Sh. Pintu, maternal uncle of the victim. The samples taken from the victim by the concerned doctor, during the medical examination were also seized by the IO.
On 01.02.2012, IO got recorded the statement of the victim under Section 164 Cr.P.C vide Ex. PW4/B and further obtained copy thereof by moving an appropriate application before the learned Metropolitan Magistrate. The mother of victim refused to take her custody and accordingly, victim was sent to Nari Niketan. During the course of investigations, IO collected the age proof of the victim and also got samples taken from the victim sent to FSL. It is stated that efforts were made to search for the accused, but without any avail. In the meantime, it appears that victim P was got married by her parents and was not available for investigations with the IO. The accused was arrested only on 04.12.2012, on the pointing out of victim S.C. No. 23/13 : State vs. Rahul : Page 2 of 28 P. Thereafter, the accused was also got medically examined and the samples taken from him by the concerned doctor were seized by the IO and the same were later on got sent to FSL on 06.12.2012. After completing the investigation, the charge sheet was prepared and filed in the court.
2. Upon committal of this case to the court of Sessions, charges for the offences punishable under Sections 363/376 IPC were framed against the accused. However, accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
3. In order to prove its case, prosecution has examined seventeen witnesses.
4. The PW1, Sunita, teacher, produced record from the school, situated at JJ Nangloi no. 2 (Ist), Nangloi, Delhi, wherein victim child/prosecutrix was admitted in first class. The PW1 proved copies of admission form and affidavit submitted by Sh. Pappu, father of the victim child as Ex. PW1/A and Ex. PW1/B, and stated that as per the school record, the date of birth of the victim/prosecutrix was 21.11.2000. The witness also proved the relevant entry in admission register qua the victim/prosecutrix as Ex. PW1/C and the original certificate issued by Incharge/Acting Principal of the said school as Ex. PW1/D. During crossexamination, the witness termed it correct that father of the child had not submitted any birth certificate of the child at the time of her admission in the school and that no independent inquiry regarding of the date of birth of the child was got conducted by the school.
S.C. No. 23/13 : State vs. Rahul : Page 3 of 28
5. The PW2, Pintu, is the maternal uncle of the prosecutrix and he deposed that in the month of January, 2012, prosecutrix, who is daughter of his real sister Raj Bala, came to stay at his house on the occasion of birthday of his nephew and stayed with them for about 20 - 22 days. He further deposed that in the month of January 2012, on an unknown date, his niece/ prosecutrix went missing from the house at about 6:00/6:30 PM without informing anyone and when despite searches for about 5/6 hours, they could not trace her, he went to PS and filed his complaint Ex.PW2/A. He further deposed that at that time, the prosecutrix was aged about 15 years, but in the school record, her age was mentioned as 13 years. He further deposed that even after registration of the case, prosecutrix did not return home for three days and that after about 3 days in the evening at about 6:30/7:00 PM, three boys came to leave the prosecutrix in his locality and that at that time she was having a stab injury in her abdomen. He volunteered to state that 'Hamare ghar se do gali door phaik kar chale gaye'. The witness further deposed that he brought prosecutrix to his house and informed the police telephonically and that he was told to bring the prosecutrix to PS. He further deposed that thereafter, he along with prosecutrix reached at the PS, where some inquiry was made from the prosecutrix. The witness further deposed about medical examination of the prosecutrix and recording of his statement as well as statement of the prosecutrix. He further deposed that after medical examination, the prosecutrix was taken to Nari Niketan as his sister refused to take her custody due to fear of defamation by the people of the society.
During crossexamination, the PW2 stated that he had stated in his complaint Ex.PW2/A to the police that after about three days in the evening at S.C. No. 23/13 : State vs. Rahul : Page 4 of 28 about 6:30/ 7:00 PM, three boys came to leave the prosecutrix in his locality and that at that time she was having stab injury in her abdomen and that the people from neighbourhood and locality tried to apprehend said boys but they managed to run away and that he was informed about it by local people, who brought the prosecutrix to his house. The witness was confronted with his complaint Ex.PW2/A, wherein these facts were not found recorded. He further deposed that he had not taken the prosecutrix to any doctor, when he saw the stab injury in her abdomen. He volunteered to state that he had only taken her to the PS and thereafter, police took the prosecutrix to SGM Hospital. He further termed it correct that during the period of 11 months i.e. the time between recovery of prosecutrix and arrest of accused, the prosecutrix had not told them about the name, address or description of the accused.
6. The PW3 SI Ravinder Solanki, had only prepared the charge sheet of the present case and filed the same in the court and deposed about the same.
7. The PW4, Sh. Dharmender Singh, learned MM, had conducted the proceedings u/s.164 Cr.P.C and proved the same as Ex.PW4/A to Ex.PW4/D i.e. the application filed by IO for recording of statement of victim/prosecutrix u/s.164 Cr.P.C as Ex.PW4/A ; statement of victim/prosecutrix u/s.164 Cr.P.C as Ex.PW4/B ; the certificate given by PW4 as Ex.PW4/C ; and application for supply of copy of said statement, filed by IO, as Ex. PW4/D.
8. The PW5, Dr. Heena Kausar, SR Gyane, examined the prosecutrix P, vide MLC Ex. PW5/A and deposed about the same. She further deposed that the S.C. No. 23/13 : State vs. Rahul : Page 5 of 28 patient had given the history of sexual assault and that she (patient) was forcefully taken by a woman at Aman Vihar, where 7/8 persons raped her on 29.01.2012 at about 6.30 pm and came back on 31.01.2012 at about 7.00 pm. She further deposed that according to the patient, the patient jumped from the vehicle and fell over anterior chest to escape from the alleged persons. She further deposed that on local examination, twothree abrasions were found over anterior chest wall 23 cm below the breast and the clothes over anterior chest wall were also found torn about 3 to 4 cm.
9. The PW6, Lady Ct. Sudesh had joined the investigations of the present case with PW17 SI Amarjeet Rana on 01.02.2012, at the time of recording the statement of the prosecutrix u/s 164 Cr.P.C and deposed about the same. She further deposed that prosecutrix was sent to Nari Niketan in her custody.
During crossexamination, the witness stated that no visible injury was seen by her on the exposed body parts of the prosecutrix at that time and that prosecutrix was probably wearing a suit and her clothes were not torn.
10. The PW7, Dr. Brijesh Singh, proved the MLC of the accused as Ex. PW7/A by identifying the handwriting and signatures of Dr. Pawan Kumar Jain, the then J.R, who had examined the patient/accused, under supervision of PW7, and given opinion about the potency of the accused.
11. The PW8, Dr. M. Das, had examined the prosecutrix initially vide MLC Ex. PW5/A and thereafter referred her to SR Gynae for further examination and deposed regarding the same.
S.C. No. 23/13 : State vs. Rahul : Page 6 of 28
12. The PW9, Ct. Ramesh, had joined the investigations of the present case with the IO on 30.01.2012 and deposed on 30.01.2012, on receipt of DD no. 18A, he along with IO reached at Karan Vihar, PartV, near Gas Godown, where the complainant was not found present and that on inquiry, it was revealed that complainant, who was maternal uncle (mama) of the prosecutrix, had gone to search for the prosecutrix amongst his relations and that on being contacted through telephone, the complainant informed them that he would come to the PS and give his statement and that accordingly, they returned to the PS. He further deposed about getting the present case registered on the statement of the complainant and about the efforts made by the IO to search for the prosecutrix.
13. The PW10, Ct. Sandeep, had taken the exhibits of the present case to FSL Rohini on 15.03.2012 and deposed regarding the same. He proved the copy of RC as Ex. PW10/A and copy of the receipt as Ex. PW10/B.
14. The PW11, Ct. Sushil, had also taken the exhibits of the present case to FSL Rohini, on 06.12.2012 and deposed regarding the same. He proved the copy of RC as Ex. PW11/A and copy of the receipt as Ex. PW11/B.
15. The PW12, Ct. Samarval deposed that on 31.01.2012, he was present in the PS and that in his presence, PW2 Pintu produced the prosecutrix before the IO/PW17 SI Amarjeet Rana by stating that prosecutrix was his niece, about whom, he (PW2) had lodged missing report on 30.01.2012 and thereafter, the prosecutrix was taken into custody vide memo Ex. PW2/B. S.C. No. 23/13 : State vs. Rahul : Page 7 of 28
16. The PW13, is the victim child P and her testimony would be discussed in the following paragraphs of the judgments.
17. The PW14, Ct. Devanand had taken the copy of FIR and original rukka and handed over the same to PW17 IO SI Amarjeet Rana and deposed regarding the same.
18. The PW15, W/SI Anita Sharma is one of the investigating officers of the case and she deposed that on 08.06.2012, on assignment of the further investigation of the case, she made inquiry from Pintu, maternal uncle of prosecutrix and also from the mother of the prosecutrix, who told her that they had married their daughter with some other boy outside Delhi, and that the prosecutrix would come to visit them in the month of December, 2012. She further deposed that on 04.12.2012, she along with Ct. Mohit went to the house of prosecutrix at X180, J.J. Colony, Nangloi, Delhi and met the prosecutrix and her mother, but the prosecutrix could not tell the address of the flat, where the offence of rape had been committed upon her by the accused and took her (PW15) to that place and pointed towards a house No.257, (MCD Flat), Sector20, Rohini, Delhi. The PW15 further deposed that she went towards that flat and knocked at the door, which was opened by one boy and that the prosecutrix pointed towards the said boy and told her that he was the same person who had committed rape upon her and thereafter, the said boy i.e. accused Rahul, was apprehended by her.
She further deposed about preparation of the site plan Ex. PW15/A at the instance of prosecutrix and about arrest, personal search and disclosure statement S.C. No. 23/13 : State vs. Rahul : Page 8 of 28 made by the accused and proved his arrest memo as Ex.PW13/A, personal search memo as Ex.PW13/B and disclosure statement as Ex. PW13/C. She further deposed about medical examination of the accused and about seizure of the exhibits, taken from the accused, along with sample seals, vide seizure memo Ex.PW15/B. She further deposed that on 06.12.2012, she sent the exhibits of the present case to FSL Rohini, through Ct. Sushil.
During crossexamination, PW15 deposed that she met the prosecutrix on 04.12.2012 for the first time. She further deposed that the mother and maternal uncle of the prosecutrix refused to give the address or telephone number of the matrimonial house of the prosecutrix. She further stated that she had not obtained either the signatures or thumb impression of mother of accused Rahul on arrest memo. She volunteered to state that his mother refused to sign the same. She further stated that she did not make any inquiry regarding the absence of family members of accused from their house for two days when the alleged incident had taken place and that it never came to her knowledge during the course of investigation that the prosecutrix was having an affair with the accused.
19. The PW16, W/Ct. Manju, joined the investigations of the present case with PW17 SI Amarjeet Rana and got the prosecutrix medically examined at SGM Hospital vide MLC Ex. PW5/A and deposed regarding the same. She further deposed that after medical examination of the prosecutrix, concerned doctor had given the exhibits of the prosecutrix to her, which were produced by her before PW17, who seized the same vide memo Ex. PW16/A. S.C. No. 23/13 : State vs. Rahul : Page 9 of 28
20. The PW17, W/SI Amarjeet Rana, is the initial investigating officer of the case and she deposed that on 30.01.2012, at about 11:06 am D.D. No18 A regarding missing of a minor girl of 15 yrs from C12, Karan Vihar, PartV, near Gas Godown Road, was entrusted to her for inquiry and that she accordingly went to the spot but did not find any complainant there. She further deposed that on being contacted on the mobile no 9911732235 (which was given in the PCR call), one Pintu/PW2 responded and told her that he was going to search his niece i.e. the prosecutrix to the houses of his relatives and that he himself would come to the PS later on. She further deposed that in the evening hours, said Pintu came in the PS and told him that despite his efforts, he could not trace the prosecutrix and that thereafter, she recorded his statement Ex.PW2/A, on the basis of which, she made her endorsement, prepared Rukka Ex.PW17/A and handed it over to duty officer for registration of case FIR and that thereafter, she left the PS with complainant and Ct. Ramesh to search for the prosecutrix. She further deposed that despite her best efforts, she could not trace the prosecutrix and thereafter, she along with Ct. Ramesh and complainant reached at PS, where Ct. Daya Ram handed over computerized copy of FIR Ex.PW17/B and original rukka to her. She further deposed that she completed with all the formalities, which are required to be done in a case of missing person i.e. flashing of wireless message, information to zipnet, hue and cry notice, etc. She further deposed that on 31.01.2012 in the evening hours, complainant came to PS with his niece i.e the prosecutrix P and produced the prosecutrix P before her and that she prepared recovery memo of prosecutrix vide Ex.PW2/B. She further deposed that she tried to make some inquiries from the prosecutrix, but prosecutrix could not tell her anything as she was very perplexed. She further S.C. No. 23/13 : State vs. Rahul : Page 10 of 28 deposed about medical examination of the victim child and at BSA Hospital and about seizure of the sealed exhibits and samples of the prosecutrix vide seizure memo Ex.PW16/A. She further deposed about getting the statement Ex.PW4/B of the prosecutrix recorded u/s 164 Cr.P.C vide application Ex. PW4/A and obtaining the copy of the same vide application Ex. PW4/D. She also deposed about collecting the age proof of the prosecutrix i.e. certificate Ex. PW1/D from the Principal, MC Girls school, J.J. Nangloi, Ist Shift, vide her application Ex.PW17/C. She further deposed about sending the exhibits of the present case to FSL and about recording of the statements of the witnesses.
During crossexamination, PW17 stated that she herself did not see any visible injury on the person of prosecutrix when she (prosecutrix) was produced before her. She volunteered to state that the complainant had informed her that she had some injury on her stomach. She further stated that the prosecutrix had told her the name and address of accused, when she was medically examined and while recording of her statement u/s.161 Cr.P.C and that she did not take the prosecutrix for arrest of accused at that time. She volunteered to state that at that time, the prosecutrix did not tell the proper address of accused and had told her only Sector 20, Rohini, and no more than that. The PW17 further deposed that she herself traced out the house of accused and went to his house after 2 / 4 days of recording the statement of prosecutrix. She further stated that she had collected the MLC of prosecutrix and read over the same and that till the file remained with her, she did not investigate about the fact mentioned in the MLC as alleged history told by the prosecutrix to SR Gyne. She volunteered to state that she made inquiries from the prosecutrix about this fact but she could not tell PW17 anything about it and that the complainant did not tell her about the said fact mentioned in the MLC. S.C. No. 23/13 : State vs. Rahul : Page 11 of 28 She further stated that during inquiry, she came to know that there was no truth in the history given by the prosecutrix to the concerned doctor. She further deposed that she had not taken the prosecutrix to the house of accused for pointing out, after she had traced out the address of accused.
21. After closing of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C, wherein he denied the allegations of the prosecution and stated that he was innocent and had been falsely implicated in the present case by the police and that no such incident had ever taken place. He further stated that he was having an affair with the prosecutrix and had developed physical relations with her, but nothing happened on 29.01.2012. He further stated that prosecutrix wanted to marry him and that on his refusal, she threatened to lodge a false complaint against him and that consequently, after about 11 months of the alleged incident, he was falsely implicated in the present case, after being lifted from his house. He further stated that his parents were at home at the time of alleged incident and had not gone anywhere as alleged by the prosecutrix. The accused wished to lead evidence in his defence and examined his father Inder Pal as DW1.
22. The DW1, Inder Pal, deposed that his son Rahul was having an affair with the prosecutrix since last one year and that in the year 2012, the mother and maternal uncle(mama) of prosecutrix came to his house with the proposal of marriage of the prosecutrix and his son Rahul, but he (DW1) refused for the same. He further deposed that at that time, they also told him that prosecutrix was also in love with the accused and that she too wanted to marry with his son and that both of them developed physical relations and that on hearing this, he refused for the S.C. No. 23/13 : State vs. Rahul : Page 12 of 28 said marriage and also scolded his son and told him that he was not in favour of this marriage. He further deposed that in the winter season of the year 2012 again, mother and maternal uncle of the prosecutrix came to his house and they requested for the marriage and that on his refusal, they threatened him either to give permission for marriage or they would have his son lifted through police. (ladke ko uthwa denge). He further deposed that after some days, when he was on his duty, his son was taken away by the police officials from his house, in his absence and thereafter, he came to know that a false case had been registered against his son at the instance of prosecutrix and her family members. He further stated that on the date of incident, he was present in Delhi and that he had his family members had not left their house as alleged by the prosecutrix.
During crossexamination, DW1 stated that he had not lodged any complaint with any authority or police, regarding the threats extended by the mother and maternal uncle of the prosecutrix and termed it correct that he had come to depose, being the father of accused Rahul.
23. Arguments have been addressed by learned counsel for the accused as well as learned Additional PP for the State.
24. Learned Additional PP has contended that in the present case, in view of the statement of the PW13 victim child P and PW2 Pintu, prosecution has proved its case beyond reasonable doubt against the accused and has accordingly prayed that accused be convicted for the charged offence.
25. Learned counsel for the accused on the other hand has contended that S.C. No. 23/13 : State vs. Rahul : Page 13 of 28 prosecution has miserably failed to prove its case against the accused and that accused is innocent and has been falsely implicated in the present case by the Police. He further stated that no such alleged offence was ever committed by the accused and that the entire prosecution case is based on false and incorrect statement of the prosecutrix and her maternal uncle. He further submitted that there are material contradictions in the testimonies of the prosecution witnesses, which makes the entire story of the prosecution highly improbable and unbelievable, and it is thus prayed that the accused be acquitted of the charged offence.
26. I have heard the arguments put forward by ld. Addl. PP as well as learned counsel for accused Rahul and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case.
27. In the present case, accused is alleged to have kidnapped the victim P, a minor girl aged about 12 years, from lawful guardianship of her parents/guardian on 29.01.12, without the consent of the mother/guardian (father of prosecutrix has already expired) of the prosecutrix and is further alleged to have committed rape upon her.
28. In order to prove that victim P was a "child" less than 18 years of age as on the day of incident, the prosecution has examined PW1 Smt. Sunita, teacher from school, at JJ Colony, Nangloi No. 2 (Ist), Nangloi, MC Primary School, wherein the prosecutrix was admitted in first class on basis of admission form and affidavit submitted by her father Sh. Pappu. As per record produced by PW1, the date of birth of the victim K is 21.11.2000.
S.C. No. 23/13 : State vs. Rahul : Page 14 of 28
29. However, it is noteworthy that Sh. Pappu, father of the victim P, who had got her admitted in the school of PW1 Sunita, has not been examined. Even the mother of the victim P has not been cited as one of the witnesses in the case. The prosecution has examined Sh. Pintu, maternal uncle (Mama) of the victim P, who stated in his examination in chief, recorded on 26.08.2013 that the victim child was aged about 15 years at the time of her admission in the school, but her age was mentioned as 13 years. Thus, from the testimony of PW2 Pintu, a doubt is created regarding the age of the prosecutrix as mentioned in the school record. This doubt is further compounded by the fact that the victim P was got married by her parents, in June 2012 i.e. within a few months of registration of the FIR in the present case. Nothing has been brought on record by the prosecution to show that victim P was a minor, when her marriage was solemnized by her parents, for if, such state of affairs had existed, then the I.Os i.e. PW17 SI Amarjeet Rana (first IO), PW15 W/SI Anita Sharma (second IO) and/or SI Ravinder Solanki, (third IO), would have taken appropriate action against the parents and other family members of the victim for having solemnized the marriage of a minor. At least, the parents of the victim would have been cited as witnesses and examined qua the age of the victim, which is not so in the present case. It would, thus appear that the age of victim P has not been correctly mentioned in the school records. In this regard, I am supported by a judgment in the case of Birdi Mal Singhavi vs. Anand Purohit, 1988 Supp. SCC 601, wherein it was held that no evidentiary value can be given to Date of Birth entry in absence of material on which entry is made. No other document of age of the prosecutrix like report of the Medical Board etc. has been filed and hence, it cannot be concluded that prosecutrix was less than 18 years of age as on the date of incident. Since, the prosecution has failed to prove, beyond reasonable doubt, S.C. No. 23/13 : State vs. Rahul : Page 15 of 28 that victim P was a minor as on the date, she went missing, from her house, the possibility of prosecutrix P above 18 years of age, cannot be ruled out and benefit thereof, would go to the accused. Having this opinion, I am fortified by the judgment titled as Mathura Dass & Ors. vs. State, 2003 (III) AD (Delhi) 213, wherein Justice Mr. R.C. Chopra has held that : "existence of prima facie case may be found even on the basis of strong suspicion against accused - assessment of prosecution evidence at the final stage is on entirely different footing than it is at the stage of framing a charge. At the final stage, if two views are possible than view which is favourable to accused has to be accepted,...... "
30. Now coming to the allegations of rape and cheating, it is noticed that after recovery of the victim child M, her statement u/s 161 Cr.P.C was recorded on 01.02.2012, wherein the victim M stated that :
"Bayan kiya ki main pata uprokat par apne matapita ke saath rehti hoon. Jo main pichhle kuch dino se apni nani ke ghar Karan Vihar aai hui thi. 29 January 2012 ko raat 9/9.30 baje, main apni nani ke ghar se kisi ko bagair batlaye Sec. 20, Rohini, Rahul ke ghar usse milne gai thi. Main Rahul se pyar karti hoon. Main 23 din tak Rahul ke saath uske ghar par hi rahi, wahan aur koi nahi tha. Hum dono ek hi bistar par soye, jo is dauran maine aur Rahul ne apneapne kapde utare, aur usne apni peshab karne wali jagah ko mere peshab karne wali jagah me dala. Hamne esa ek din me 45 bar kiya. Ye sab S.C. No. 23/13 : State vs. Rahul : Page 16 of 28 hamari, Rahul aur meri rajamandi se hua hai. 31 Jan. ko Rahul ke maabaap ghar aane wale the, no wah mujhe Aman Vihar Thane ke nazdik raat ke samay chhod gaya. Jahan se main apni nani ke saath Aman Vihar thane pahunchi. Apne mera bayan likha, sun liya, sahi hai. .."
31. The victim/prosecutrix was taken to SGM Hospital for her medical examination on 01.02.2012 at 12.50 am, wherein, she firstly gave following history in the casualty ward : "gone from home on Sunday with known person"
In the Gynecology department, the prosecutrix gave following history : "She was forcefully taken by a woman at Aman Vihar followed by rape by 7/8 persons on 29/1/12 at about 6.30 pm and came back on 31/1/12 at 7.00 pm, According to patient she jumped from the vehicle over anterior chest to escape from alleged persons."
32. The statement of prosecutrix u/s.164 CrPC Ex.PW4/B was recorded on 01.02.2012 by PW4 Sh. Dharmender, ld. M.M. and in her statement, the victim P deposed that : "29 Jan. 2012 ko raat 9/9.30 baje, main apni nani ke ghar (Aman Vihar) se bina kisi ko bataye Sector20, Rohini, Rahul ke ghar gaye. Main Rahul se pyar karti hoon. Main 23 din uske ghar hi rahi. 31 Jan. ko Rahul mujhe Aman Vihar thane ke thodi doori par chhod gaya. Jis dauran main Rahul ke ghar rahi, wahan par koi nahi tha. Main Rahul ke saath, ek bistar par soi. Is dauran, maine aur Rahul S.C. No. 23/13 : State vs. Rahul : Page 17 of 28 ne apneapne kapde utare, aur usne apni peshab karne wali jagah ko meri peshab karne wali jagah me dala. Hamne esa ek din me 45 bar kiya. Ye sab meri aur Rahul ki rajamandi se hua. 31 Jan. ko Rahul ke maabaap ghar aane wali the, to wah mujhe Aman Vihar Thane ke nazdeek raat ke waqt chhod gaya. Jahan se main apne (nani ke) ghar gai. Wahan se main mamai ke saath Aman Vihar Thane pahunchi."
33. The prosecutrix P appeared to depose before the Court as PW13 and her statement was recorded on 30.01.2014, wherein she deposed as under : " ...... In the month of January, last to last year i.e. in the year 2012, I had gone to stay with my maternal grandmother (nani).
On the day of incident at about 6:00 / 7:00 PM, accused Rahul, whom I knew from before, enticed me to go with him to his house at Jalebi Chowk. There was nobody present at his house. Accused Rahul made me sleep with him 3 - 4 times.
Again said, he established physical relations with me as between husband and wife. After 2 - 3 days accused left me near PS Aman Vihar. From there I went to house of my maternal grandmother (nani) and I told her everything. My maternal uncle (mama) took me to PS. At PS, police made inquiry from me and thereafter I was taken to SGM hospital for my medical examination. At that time I had told the doctor something but I do not remember what it was. ....
S.C. No. 23/13 : State vs. Rahul : Page 18 of 28 During further examination, the prosecutrix deposed about arrest and personal search of the accused and about the disclosure statement made by the accused and proved his arrest memo Ex.PW13/A, personal search memo Ex.PW13/B and disclosure statement Ex.PW13/C. The witness identified her signature on her statement u/s 164 Cr.P.C i.e. Ex.PW4/B. Some leading questions were put to PW13 by learned Addl. PP, in response to which, the witness termed it correct that she had gone with accused on 29.01.2012 and that he (Rahul) had dropped her near PS Aman Vihar on 31.01.2012. She further termed it correct that she had gone with her mother and the police to the house of accused on 04.12.2012.
34. During crossexamination by learned defence counsel, the PW13 showed her lack of knowledge, if she had told the learned MM that accused had enticed her to go with him. She also showed her lack of knowledge about her exact date of birth and deposed that she was born on 21st November, but she could not tell the year of her birth. She further termed it correct that there were other houses near the house of accused Rahul and that during her stay with accused, he (accused) had not used force upon her by tying her hands, mouth, etc and that during the period of two days when she was with accused Rahul, he (accused Rahul) had gone out of the house to bring food, etc. She further deposed that during the period of said two days, she did not raise alarm or tell anyone that accused had brought her there by enticing her and that she did not make any effort to run away from the house of the accused.
S.C. No. 23/13 : State vs. Rahul : Page 19 of 28
35. To elicit the truth from the witness, following court questions were also put to the witness, in reply to which, she stated as under : Court Ques.: When you were taken for your medical examination did you tell the concerned doctor that you had been forcibly taken away by a woman from Aman Vihar and had been forcibly raped by 7 - 8 persons on 29.01.2012 at 6:30 PM ?
Ans. No. I did not tell any such thing to the doctor. Again
said, I had stated so.
Court Ques.: Did you tell the doctor who had examine you that on 31.01.2012 at about 7:00 PM you jumped from a vehicle and received injury on your chest while escaping from said persons ?
Ans. Yes. Vol. I remain under stress and forget several
things.
Court Ques. Why did you tell the doctor that you had been
forcibly taken away by a woman and forcibly raped by 7 / 8
persons and had jumped from the vehicle and received injuries on your chest?
Ans. I stated so as I was nervous.
Court Ques. You had stated in your examination in chief that you had been enticed away by accused Rahul whereas you told the doctor in your MLC Ex.PW5/A that you were taken away by one woman forcibly and were raped by 7 / 8 persons and you have also stated in the Court that you had said so at the time of your examination by the doctor, which of the two versions of the incident given by you is correct ?
S.C. No. 23/13 : State vs. Rahul : Page 20 of 28
Ans. The fact that accused Rahul had enticed me away
and raped me is correct.
During her further crossexamination, PW13 deposed that she had told the police and learned MM that she had been forcibly taken away by a woman from Aman Vihar and had been raped by 7 / 8 persons on 29.01.2012 at 6:30 PM. She further termed it correct that she had told the learned MM in her statement u/s. 164 CrPC i.e. Ex.PW4/B that she loved accused and had gone with him of her own and had physical relation with him with her own consent and that when she returned home on 31.01.2012, she was not having any stab injuries on her person and that, on that day her mother refused to allow her to enter her house, so she was sent to Nari Niketan. She further deposed that she was knowing accused Rahul since several years prior to the incident. She further termed it correct that she had got married, after the incident and that she was having one child from her said wedlock.
36. From the above mentioned statements of the prosecutrix i.e. her statement u/s 161 Cr.P.C dated 22.08.2012 ; her statement/history given to doctors (as recorded on MLC Ex. PW5/A) ; her statement u/s 164 Cr.P.C Ex. PW6/A dated 23.08.2012 and her deposition recorded before the court on 30.01.2014, it is seen that the prosecutrix has changed her version in her deposition as PW13 with a view to save herself and to rule out the possibility of her consent in the entire incident. In her statement u/s 161 Cr.P.C dated 23.08.2012 and her statement u/s 164 Cr.P.C Ex. PW6/A, she categorically stated that she had herself gone with the accused, without telling her family members and stayed with him and established physical relation with him with her own consent, whereas in her deposition before S.C. No. 23/13 : State vs. Rahul : Page 21 of 28 the court, prosecutrix has introduced the factum of being enticed away by the accused. If version given by prosecutrix as PW13 is to be believed, then there is no explanation, how and why prosecutrix accompanied the accused Rahul to his house, from her maternal grandmother's house, at Sector20, Rohini, on 29.01.2012 and continued to stay with the accused at his house till 31.01.2012, without putting up any resistance or making any effort to raise alarm or to escape from her alleged forced confinement by the accused. If the prosecutrix had been forced to accompany the accused, she could have easily raised alarm at that time and was not expected to have meekly accompanied accused as per his desires.
37. Learned Additional PP has contended that the prosecutrix was aged about 16/17 years at the time of commission of offence and hence her consent is immaterial.
38. The submissions made by ld. Addl PP cannot be sustained, since it has already been held in foregoing paragraphs that prosecution has failed to prove that prosecutrix was less than 18 years of age at the time of the incident. It appears that prosecutrix who was a major, when she left her grandmother's house on 29.01.2012, had herself taken decision to go with the accused without any kind of apparent inducement, influence or pressure from him. In these facts and circumstances of the case, more particularly in view of the contradictions in the testimony of prosecutrix and her other statements, the element of 'taking away' or 'enticement' is found to be lacking and it appears that prosecutrix was willing and consenting party and that everything has happened with her sweet will. I am supported in my view by judgment in case titled as Bunty vs. State (G.N.C.T.) of S.C. No. 23/13 : State vs. Rahul : Page 22 of 28 Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011 by the Hon'ble Delhi High Court, wherein it was held that : "8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had travelled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...."
39. It would also be relevant to refer to the case titled as " S. Varadarajan Vs. State of Madras, AIR 1965 SC 942", wherein in a case of a minor victim, the Hon'ble Supreme Court, while distinguishing between " taking" and "allowing a minor to accompany a person" laid down that : "There is a distinction between " taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing , voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian."
40. In the present case also, the element of 'taking away' or 'enticement' is found to be lacking. In these circumstances, the factum of kidnapping and rape of prosecutrix does not stand proved. This observation is further fortified by testimony S.C. No. 23/13 : State vs. Rahul : Page 23 of 28 of PW17 SI Amarjeet Rana, who stated during her crossexamination that mother and maternal uncle of prosecutrix, refused to take her custody, after recording of her statement u/s 164 Cr.P.C, as prosecutrix had herself left her house.
41. Further, perusal of the record shows that there are material contradictions in the testimonies of the witnesses. The PW13 prosecutrix P herself stated that in her statement u/s 161 Cr.P.C as well as statement u/s 164 Cr.P.C that on 29.01.2012, she left the house of her maternal grandmother (nani) and went to the house of Rahul, situated at Sector20, Rohini and stayed there 2/3 days. The PW2, Pintu (maternal uncle of prosecutrix) contradicts her testimony in as much as he has said that after three days of being found missing, the prosecutrix was left in the locality at about 6.30/7.00 pm by three boys and that she was having a stab injury in her abdomen at that time. He also stated that people from neighbourhood and locality tried to apprehend said boys, but they managed to run away and that PW2 was informed by local people, after which, he brought the victim to the house. As per record, the victim was got examined at SGM Hospital on 01.2.2012 itself at about 12.30 am and no stab injury is reflected from her MLC Ex. PW5/A. Only abrasions were found, which have not been explained by the victim, considering that she gave history of being taken away forcibly by a woman and being raped by 78 person on 29.01.2012.
42. Ld. Addl. PP further submitted that in the present case, as per FSL result, the DNA profiling STR Analysis was performed on the exhibit "1n" (salwar) and exhibit '2' (blood sample of the accused) and as per the report, biological stains on the source of exhibit "1n' (Salwar) and the source of exhibit "2" (blood sample of the S.C. No. 23/13 : State vs. Rahul : Page 24 of 28 accused were found similar and that is sufficient to prove the guilt of the accused beyond reasonable doubt.
43. It has already been observed hereinabove, that the prosecution has failed to prove that the prosecutrix was a minor at the time of incident and even the prosecutrix herself in her statement u/s 161 Cr.P.C and u/s 164 Cr.P.C has stated that she had gone with the accused of her own free will and accord. It is possible that the victim P being a major had herself gone to the accused and had physical relations with him of her consent, however, the subsequent events i.e. the manner in which, the victim returned back to her home, does not stand explained. The statement of her maternal uncle that victim was having a stab injury in the abdomen, which were belied by the findings on MLC by the doctor, and statement made by PW17 SI Amarjeet Rana and PW6 L/Ct. Sudesh, who stated that there were no visible injury seen by them on prosecutrix and her clothes were also not torn and the victim's own conduct of changing her statement and giving imaginary and concocted version every time, she made her statement, make it difficult to rely upon the FSL result only to convict the accused. It is not the case of the prosecution that the accused had inflicted injuries or hurt the victim in any manner and thus, it was for the prosecution to explain how the abrasions were found on the body of the prosecutrix, when she was taken for medical examination.
44. Further, perusal of the record shows that prosecutrix had gone with the accused on 29.01.2012 and remained at the house of the accused for about 2/3 days. The matter was reported to the police on 30.01.2012 and at that time, all the particulars i.e. name of the accused and address of the accused were known to the S.C. No. 23/13 : State vs. Rahul : Page 25 of 28 prosecutrix, but surprisingly, the accused was arrested on 04.12.2012. The PW17, SI Amarjeet Rana, has stated during her crossexamination that she had traced out the house of accused within 2/4 day or recording of statement of prosecutrix, yet she made no effort to arrest the accused. To the contrary, PW2 Pintu, maternal uncle (mama) of victim, has stated that during the period, when prosecutrix was recovered, till the arrest of accused on 04.12.2012, the prosecutrix had not told them ( PW2 and/or her mother), about name, address or description of the accused. Thus, inordinate delay in arrest of the accused does not stand explained by prosecution, which itself creates a doubt about the prosecution version.
45. It is a settled legal proposition that once the statement of prosecutrix inspires confidence, it is to be accepted by the Court as such and conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the Court to seek for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice of the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the Court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. I am supported in S.C. No. 23/13 : State vs. Rahul : Page 26 of 28 my view by judgment in case titled as Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. & Anr., AIR 2003 SC 818 and Vishnu Vs. State of Maharashtra, AIR 2006 SC 508.
46. In the present case evidence of prosecutrix is found suffering from serious infirmities and inconsistencies and it is seen that prosecutrix is making deliberate improvements on material points with a view to rule out consent on her part, lead to conclusion that no reliance can be placed upon her evidence. I am supported in my view judgment in case Suresh N.Bhusare & Ors. Vs. State of Maharashtra, (1999) 1 SCC 220.
47. It has also been held in the case of Tameezuddin @ Tammu Vs. State (NCT of Delhi), (2009) 15 SCC 566, this Court held has under : "It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter."
48. It has been further held in the case of Jai Krishna Mandal & Anr. Vs. State of Jharkhand, (2010) 14 SCC 534, as under : "The only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in S.C. No. 23/13 : State vs. Rahul : Page 27 of 28 its totality, the story projected by the prosecutrix was so improbable that it could not be believed."
49. After consideration of the entire material placed on record by the prosecution, I am of the opinion that the case of the prosecution is full of loopholes and prosecution has failed to prove its case against accused Rahul beyond reasonable doubt. The prosecution has further failed to prove that accused had taken the prosecutrix, by enticing her, on 29.01.2012 or that he kidnapped or abducted prosecutrix and committed rape on the prosecutrix forcibly without her consent. Accordingly, I acquit accused Rahul of the charged offences, giving him benefit of doubt File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 04.08.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C. No. 23/13 : State vs. Rahul : Page 28 of 28