Delhi District Court
State vs Amit Kumar S/O. Sh. Tej Singh on 4 September, 2013
IN THE COURT OF SANJAY GARG : ADDITIONAL SESSIONS JUDGE - 01
(EAST) :KARKARDOOMA COURTS : DELHI
SC No. 88/12
FIR No. 207/12
PS N.A. Nagar
Under Section : 363/328/376 IPC
State Versus Amit Kumar S/o. Sh. Tej Singh
R/o. F37, Harijan Basti Kondli, Delhi.
Date of Institution of Case : 26.11.12
Date on which Judgment Reserved : 04.09.13
Date on which Judgment Delivered : 04.09.13
J U D G M E N T :
1. Briefly stated that the case of the prosecution is that a complaint was made by Sh. Rajender Singh (PW1) stating that on 11.7.12 at 1 p.m his daughter aged 15 years went missing. Accused who was also residing in the same house as a tenant is also missing. On this complaint HC Raj Pal prepared rukka and got this FIR registered. On 1.8.12 Smt. Indu (PW2), mother of the prosecutrix produced her in PS. Prosecutrix refused to get her medical examination done. On 7.8.12 statement of prosecutrix was got recorded u/s. 164 CrPC. After investigation police filed chargesheet against the accused u/s. 363/328/376 IPC.
2. Charge u/s. 363/328/376 IPC was given to accused, to which he pleaded not guilty and claimed trial.
3. To prove its case prosecution examined seven witnesses. PW1 Sh. Rajender Singh is the father of the complainant, he proved his complaint Ex.PW1/A. PW2 Smt. Indu is the mother of the prosecutrix. Prosecutrix was examined as PW3, she identified her signatures on her statement recorded u/s. 164 CrPC Ex.PW3/A. PW4 SI Asha Sharma did investigation for some period. She proved arrest memo and personal search memo of accused as Ex.PW4/A and Ex.PW4/B. She proved seizure memo Ex. PW4/C vide which FIR No. 207/12 page 1 of page 6 four pulandas given to her after medical examination of accused were seized. PW5 ASI Yatender Kumar was assigned investigation of this case on 17.7.12. He prepared recovery memo of prosecutrix as Ex.PW5/A. PW6 Karan Singh is the landlord of the premises where prosecutrix and accused were residing. PW7 HC Desh Raj was duty officer, he proved FIR Ex.PW7/A and endorsement on rukka Ex.PW7/B.
4. Accused admitted MLC of prosecutrix and his MLC as Ex.P1 to Ex.P3. His statement u/s. 294 CrPC was recorded to this effect.
5. On the basis of the incriminating evidence against the accused , his statement was recorded u/s. 313 CrPC wherein he denied the entire prosecution evidence against him and took the defence that he has been falsely implicated in this case to the reasons best known to prosecutrix and complainant.
6. Heard arguments of Sh. Maqsood Ahmad, Ld. Addl. PP for State and Sh. Rakesh Kumar, Ld. Defence counsel for accused. Perused the case file.
7. The Ld. Addl. PP submitted that prosecutrix was minor and she has made specific allegations of rape and administering her stupefying object by the accused. It is stated that statement of prosecutrix recorded u/s. 164 CrPC also supports her statement made before this Court. It is stated that prosecution has been able to prove its case against the accused beyond reasonable doubt.
8. Sh. Rakesh Kumar, Ld. counsel for the accused submitted that statement of prosecutrix is full of contradictions and she has made major improvements while deposing before this Court, which renders her testimony under shadow of doubt. It is stated that as per PW2 she did not produce prosecutrix in the PS but as per IO PW5 mother of prosecutrix had produced her in PS. It is stated that medical evidence is also not supporting the allegations made by prosecutrix. It is stated that statement of prosecutrix Ex.PW3/DA recorded by police and statement of mother of prosecutrix i.e. FIR No. 207/12 page 2 of page 6 Ex.PW2/A establishes the defence of the accused that in fact no such incident had happened and he is falsely implicated in this case.
9. Prosecutrix while deposing as PW3 has stated that on 11.7.12 she returned back from her school. Accused was residing at the first floor of the same premises as a tenant where she was residing with her family on the second floor. She went to the market to buy rusk from a shop in front of her house. There accused and his father met her, they both enticed her to come with them. They took her on a scooter to a house. Thereafter father of accused returned back. Nitish who is friend of accused was also there. Accused gave her some intoxicant to inhale. After inhaling it she got semi unconscious. On 29.7.12 father of accused took her to PS New Ashok Nagar. During the time she stayed there accused continuously used to give her some intoxicants and after inhaling it she used to become semi unconscious. Police took her to LBS Hospital. There police officials asked her not to get her medical examination done and she told the same to the doctor. She was produced in the Court before Judge Sahib and there a male Judge Sahib recorded her statement. She made same statement as was tutored to her by the police officials accompanying her. She identified her signatures on statement Ex.PW3/A. During crossexamination by Ld. APP, she denied the suggestion that on 10.7.12 accused met her on the way to the school and asked her that he will take her to roam around.
10. She further denied the suggestion that on 11.7.12 accused met her and took her to Akshardham temple during after noon time in bus and they remained at Akshardham temple till late or thereafter she requested accused to took her back to her house but in stead of taking her to her house, in a auto rickshaw accused took her to his friend's house namely Nitish. She denied to have told Ld. M.M. that she was not knowing the name of the place where Nitish house was situated or it was three room single storey house or she again requested accused to took her to the house but he did not take her and they had hot talks and even accused slapped her. She FIR No. 207/12 page 3 of page 6 denied the suggestion that she and accused were alone in one of the bedroom and he locked it from inside and despite her resistance accused removed her clothes and established physical relations with her and she felt pain. She admitted that she was not in full senses as she suspected that accused had given her some tablet dissolved in water. She further admitted that she just wanted to go with accused but did not want to have any physical relation with him. She admitted that accused did sexual inter course with her against her wish. She further admitted that when she proposed accused that they should marry then he gave evasive answers. She also admitted that they remained at Nitish's home for about 15 days and during that time accused established physical relations with her number of times. She further admitted that when she had requested accused to go out, he did not permit her to go out and made her sit inside and during this period he used to talk with his father on phone. She admitted that father of accused called both of them at Noida, near Goal Chakkar and took both of them to PS New Ashok Nagar. During crossexamination by accused, in reply to a question that shopkeeper must have heard the alarm raised by her, prosecutrix replied that accused had called her in the street adjoining that shop and there his father was already present with a scooter. Prosecutrix stated that Nitish used to go out from the house but accused did not used to go out from the house ; Nitish used to bring food for them from market as there was no arrangement in the house to cook food ; there were three rooms in the said house, Nitish used to live in a separate room but accused used to stay with her in the same room ; she had tried to run away from there but could not since accused always used to remain with her ; she never went to the roof of the house and there was a window on the outer room of said house ; in the PS she had told the police that accused had raped her. Prosecutrix was confronted with her statement Ex.PW3/DA. She admitted her signatures on it but refused to have made the statement. She admitted that she refused to go with her parents to the PS. She further admitted that FIR No. 207/12 page 4 of page 6 on 1.8.12 she had not made any statement against accused before Ld. M.M and due to this reason accused was let off by the police.
11. Ex.PW3/A is the statement of prosecutrix recorded u/s. 164 CrPC wherein also she made same statement as made by her before this Court.
12. Ex.PA1 and Ex.PA2 is the MLC of the prosecutrix. In history it is mentioned "run away from home alone on 11.7.12 to Haridwar and returned herself on 1.8.12". Prosecutrix and her mother refused to get her external and internal examination done. One of the main contention raised by Ld. counsel for the accused is that statement of prosecutrix is full of contradictions which renders her credibility under shadow of doubt. I agree with this contention raised by Ld. defence counsel, as prosecutrix has made major improvements while deposing before this Court visavis her statement Ex.PW3/A recorded u/s. 164 CrPC. As per her statement Ex.PW3/A accused had taken her in an auto rickshaw to his friend's house. But while deposing as PW3 she has improved her version stating that both father and accused had taken her on a scooter to the house of Nitish i.e. friend of the accused. How prosecutrix was recovered, there are contradictory statements of different witnesses. As per PW2 (mother of the prosecutrix) on 28.7.12 she received a call from the PS informing that prosecutrix is in the PS but as per PW5 on 1.8.12 mother of the prosecutrix produced her in PS. Ex.PW5/A is the recovery memo of the prosecutrix dated 1.8.12, as per which prosecutrix was produced in the PS by her mother. Ex.PW3/DA is the statement of prosecutrix recorded by PW5 same day on which she was recovered. As per this statement prosecutrix has stated that her father is an addict to liquor and often his parents used to quarrel. Her studies used to get disrupted. Being fed up with all this on 11.7.12 after taking money from her house, taking train form old Delhi Railway Station she went to Haridwar. There she stayed in an Ashram. When she started missing her family she returned back to her house today and her mother produced her in the PS. As already FIR No. 207/12 page 5 of page 6 discussed same is the history mentioned in the MLC on Ex.PA1 and Ex.PA2 of the prosecutrix. Though prosecutrix has admitted her signatures on Ex.PW3/DA but she has denied to have made this statement. Ex.PW2/A is the statement of mother of the prosecutrix. She has also made same statement as made by prosecutrix i.e. Ex.PW3/DA.
13. The allegations of sexual assault made by prosecutrix against the accused also remains unproved as she and her mother had refused to get her internal and external examination done. In view of the aforesaid reasons the statement of prosecutrix does not inspire confidence and is not believable. Except statement of the prosecutrix, there is absolutely no other piece of evidence against the accused produced by the prosecution.
14. In view of the facts and circumstances of this case, it is held that prosecution has failed to prove its case against accused beyond reasonable doubt. Accused is thereby acquitted from the offences punishable under Section 363/328/376 IPC.
File be consigned to the record room.
ANNOUNCED IN OPEN COURT ON 04.09.2013 (SANJAY GARG) ADDL. SESSIONS JUDGE(EAST) 01 KARKARDOOMA COURTS : DELHI FIR No. 207/12 page 6 of page 6