Delhi District Court
State vs Accused Persons on 5 December, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI Unique Case I.D. No.02402R02402R0717652008 SC NO.39/13 Date of Institution : 20.10.2008 FIR No.139/08 Date of Argument : 21.10.2013 PS Nand Nagari &05.12.2013 U/S 363/365/366/368 Date of Order : 05.12.2013 & 376/328/34 IPC State Versus Accused Persons 1. Sukhbir Singh S/o Vijay Pal R/o Village Barkat Pur, PS Chattari, District Bulandshahar, UP 2. Raja Ram S/o Yad Ram R/o Village Nangla, PS Anupshahar, District Bulandshahar, UP 3. Himmat Singh, S/o Yad Ram R/o Village Nangla, PS Anupshahar, District Bulandshahar, UP SC No.39/13 State vs. Sukhbir & Ors. Page 1 of 30 JUDGMENT
1. The facts in brief of the prosecution case are that ______x_________, daughter of ________y______, R/o _____z_____, herein after referred to as the prosecutrix was residing with her parents and Sukhbir Singh, herein after referred to as the accused no. 1 was residing in her neighbourhood along with his brother in law (jija) Raja Ram, herein after referred to as the accused no. 2. ___y__, son of________z-1_________, R/o ___z____, Delhi, herein after referred to as the complainant lodged a report at PS Farsh Bazar that his daughter, the prosecutrix on 28.02.2008 at about 9.00 PM went to the house of his sister in his neighbourhood but she did not return back. He tried to search her here and there but she could not be searched. On the basis of his report DD entry No. 38 was recorded at Police Post Farsh Bazar on 29.02.2008. Missing Person Form was filled in and messages were sent to SSPs and SHOs of India. Hue and cry notice was got issued and published. On 19.03.2008, the complainant again arrived at PS Farsh Bazar and informed that he was having doubt of kidnapping of her daughter by Sukbhir Singh and his relatives Raja Ram, Ajit and Babloo. Statement of complainant was recorded and on the basis of his statement FIR No. 139/08 at PS Farsh Bazar, under SC No.39/13 State vs. Sukhbir & Ors. Page 2 of 30 Sections 363/365/366/368/376/328/34 IPC was recorded. The IO inspected the place of occurrence and prepared site plan. On 27.07.2008, the prosecutrix returned to her home. She was taken to PS where her statement under Section 161 of the Code of Criminal Procedure, herein after referred to as the Code was recorded. She alleged that on 28.02.2008 at about 9.00 PM when she was returning from the house of her father's sister (bua), accused no. 1, accused no. 2 and his brother Himmat, herein after referred to as the accused no. 3 with three other persons were standing on the way. Accused no. 1 put a handkerchief on her nose. The accused no. 2 asked him to take the prosecutrix and that he would take care. The prosecutrix became unconscious. The accused took her firstly to Mohan Nagar in TSR and from there she was taken to Lal Qua, Ghaziabad in another TSR and from there she was taken in a tempo to Dadri, Gautambudh Nagar at the house of his friend. They stayed there for about 1 month. Thereafter, she arrived in Aligarh from Dadri where accused no. 1 solemnized marriage with her forcibly in Arya Samaj Temple. Thereafter, she was brought back to Dadri by accused no. 1 and they stayed there for about 15-20 days. From there accused no. 1 took her to his Village Barkat Pur, PS Chattari, District, Bulandshahar, UP and they stayed there for one day and at that place the SC No.39/13 State vs. Sukhbir & Ors. Page 3 of 30 accused no. 1 committed wrong act with her without her consent. Wife of Munni Lal who was son of elder brother of his father (Tau) died and in that case accused no. 1 and accused no. 2 were arrested by the police and put them behind the bar. Thereafter, she stayed in the house and wife of father's brother (Tai) for about 8 days. She did not permit her (prosecutrix) to stay in her house. She stayed 2/3 days here and there and then returned to the house of friend of accused no. 1 and after staying sometimes there she returned back to Delhi where she was produced before the police. The prosecutrix was taken to GTB hospital on 28.07.2008 where she was medically examined. Her MLC was prepared. She refused for her internal medical examination. On the same day, she was produced before Ld. Metropolitan Magistrate and her statement under Section 164 of the Code was recorded. IO formally arrested the accused no. 1 and 2 from Bulandshahar, UP Jail and prepared their arrest memo. They were interrogated and their disclosure statements were recorded. The accused Himmat evaded his arrest. The police after completion of investigation filed a chargee-sheet against the accused no. 1 for his trial for the offences punishable under Sections 365/366/368/376/328/34 IPC and against accused no. 2 for his trial for the offences under Section 363/365/366/368/328/34 with the permission to file SC No.39/13 State vs. Sukhbir & Ors. Page 4 of 30 supplementary charge sheet against the accused Himmat as and when he is arrested.
2. Ld. Metropolitan Magistrate after supplying of copies of charge sheet and documents to the accused persons committed this case to the court of sessions and the case was assigned to Sh. Raj Kapoor, Ld. ASJ, Karkardooma Courts, Delhi.
3. Vide order dated 20.10.2008, the court opined that there was prima facie sufficient material on record for framing of charge against accused Sukhbir Singh for the offences punishable u/s 363/366A/368/376/328/34 IPC and against accused Raja Ram for the offences punishable u/s 363/365/366A/368/328/34 IPC. Therefore, separate charges against both the accused for their trial for the said offences were framed and read over to them. They pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined the prosecutrix ___x___ as PW1 and her mother __z-2__ as PW2; ___z-3___, her father's sister (bua) as PW3; her father ____y_____ as PW4; HC Udaiveer as PW5; HC Anil as PW6; Ct. Pramod Kumar as PW7; SI Beena Thakur as PW8; HC Poonam as PW9; ASI Charan Singh as PW10; Ct.
SC No.39/13 State vs. Sukhbir & Ors. Page 5 of 30Suman as PW11; Dr. Dharam as PW12, Sh. Satish Kumar Arora, Ld. Metropolitan Magistrate as PW13 and SI __y__ Kumar as PW14.
5. During the pendency of trial, accused Himmat was arrested. A supplementary charge sheet against him was filed. Ld. Metropolitan Magistrate after supplying of copies of charge sheet and documents to the accused Himmat committed this case to the court of sessions and the supplementary charge sheet was also assigned to the same Court on 28.04.2011.
6. Vide order dated 04.05.2011, the court opined that there was prima facie sufficient material on record for framing of charge against accused Himmat for the offences punishable u/s 363/366A/368/328/34 IPC. Therefore, separate charge against the accused Himmat for his trial for the said offences was framed and read over to him. He pleaded not guilty and claimed trial.
7. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
SC No.39/13 State vs. Sukhbir & Ors. Page 6 of 308. The prosecution in order to prove its case against all the accused persons including accused Himmat re-examined all the above narrated prosecution witnesses. Besides, the prosecution further examined Sh. Devender Singh Bhandari, Sub-Registrar, Birth and Death, Shahdra North Zone, East Delhi Municipal Corporation as PW15.
9. After closing of prosecution evidence statement of the all the accused persons u/s 313 of the Code were recorded. All the material and incriminating evidence was put to them. The accused Sukhbir Singh admitted that the prosecutrix PW1 was the eldest daughter of the complainant and that he brought her to village Barkat Pur, District Bulandshehar and kept her there and that IO PW14 after knowing that he and accused no. 2 were in Bulandshehar jail reached there and formally arrested them on 23.06.2008 and that he was interrogated and his statement was recorded and that Ex. P-1 was the photograph of the prosecutrix and that he and other co- accused were correctly identified by the witnesses in the Court. He pleaded that he was having love affairs with the prosecutrix. Father of the prosecutrix had a conversation with accused no. 2, who is his brother in law (behnoi) regarding marriage of the prosecutrix with accused no. 1. Accused no. 2 declined to accept the proposal of marriage SC No.39/13 State vs. Sukhbir & Ors. Page 7 of 30 of the prosecutrix with him (accused no. 1) and told him that he was unable to perform marriage up to one year. In the meantime, intimacy was developed between him and the prosecutrix. Father of the prosecutrix was trying to marry her else where with a boy who was brother in law of her father's sister (bua). That boy was having bad habits of gambling and drinking liquor. The prosecutrix compelled him to marry her failing which she threatened him that she would commit suicide. He declined her proposal many times and ultimately they left for Dadri and lived there for one month. Then, they went to Aligarh and performed marriage there. After their marriage, they returned to his village and lived there as husband and wife. Thereafter, he was implicated in a false case and was sent to jail in that case. The prosecutrix also came to see him in jail on 22.04.2008 with one Munni Lal. Munni Lal wanted to marry her so he falsely him in a murder case.
10. Accused Raja Ram also admitted that the prosecutrix was eldest daughter of the complainant PW4 and PW2 and that he was arrested on 23.06.2008 vide arrest memo Ex. PW14/B and that Ex. P-1 was the photograph of the prosecutrix and that he was correctly identified by the witnesses. He explained that he was resident of the same house in which the family of the SC No.39/13 State vs. Sukhbir & Ors. Page 8 of 30 complainant, including the prosecutrix, used to reside. He denied rest of the material prosecution evidence and pleaded that he was falsely implicated because he was relative of accused no. 1.
11. Accused Himmat admitted that photograph Ex. P-1 was of the prosecutrix. He either denied the material prosecution evidence or expressed his ignorance about the same and pleaded that he was falsely implicated in this case.
12. In support of their defence, the accused no. 1 examined himself as DW1 under Section 315 of the Code as a defence witness. Sh. Ram Charan an elder person aged about 70 years, resident of village Barkat Pur was examined as DW2 and another person named Nahar Singh, resident of the same village was examined as DW3.
13. I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for the accused persons and perused file and written arguments submitted by Ld. defence Counsel. Causing hurt by means of poison etc.
14. In order to prove its case that accused persons SC No.39/13 State vs. Sukhbir & Ors. Page 9 of 30 committed an offence of causing hurt by means of poisons etc., punishable u/s 328/34 IPC, prosecution has to prove firstly that accused persons in furtherance of their common intention administered either poison or stupefying, intoxicating or unwholesome drug to the prosecutrix; secondly, that drug/intoxicating pills by way of smell were administered to the prosecutrix with the intention to commit or to facilitate the commission of an offence or knowingly it to be likely that they will thereby cause hurt to the prosecutrix; and thirdly, that after consuming the drug/intoxicating pills, the hurt was caused to her.
15. It has been argued on behalf of Ld. defence Counsel that the prosecutrix was in love with accused no. 1 Sukhbir and she left her house with him without any pressure, etc. The statement of the prosecutrix that she was made to smell some sedative or intoxicant material is false. She was major on the date of commission of alleged offences. There are major contradictions in the testimonies of prosecution witnesses. The accused persons are entitled to get benefit of doubt.
16. On the other hand, Ld. Additional Public Prosecutor argued that prosecution witnesses have proved SC No.39/13 State vs. Sukhbir & Ors. Page 10 of 30 the case beyond reasonable suspicion and doubt. Testimonies of prosecution witnesses are reliable and trustworthy and accused is liable to be convicted. She also argued that minor discrepancies, if any, may be ignored in view of the principles of law laid down in case of State v. Jai Hind, 2012 VI AD (Delhi) 170 wherein it was held that:
"32. ***In Rameshwar v. State of Rajasthan, AIR 1952 SC 54 where the Court held:
"The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."*** "38. In State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurances to her testimony, short of corroboration required in the case of an SC No.39/13 State vs. Sukhbir & Ors. Page 11 of 30 accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
17. On analyzing the evidence on record, I come to the conclusion that there is probability that the prosecutrix accompanied accused no. 1 Sukhbhir on of her own. The reasons and evidence which support this conclusion are firstly, that in her statement under Section 161 of the Code recorded by the police on 27.07.2008, she stated that on 26.02.2008 at about 9.30 P.M. when she was returning from the house of her father's sister (bua) ___z-3__, Shukhbir, who was staying in the adjoining room to her house along with his brother in law (jija) Raja Ram on rent, was standing. Raja Ram and Himmat and two more boys, whose name she did not know were also standing there. Sukhbir put a cloth on her mouth in which there was some medicine. Then, Raja Ram told him that he should take her and that he would take care. Sukhbir, took her from there in a auto rickshaw and brought her to Mohar Nagar, UP. Thereafter, in another TSR he took her from Mohan Nagar, U.P. to Lal Qua,Ghaziabad and from there he took her in a tempo to Dadri, Gautaubudh Nagar. In her entire statement she nowhere stated that after putting the handkerchief she became unconscious. As she told the entire route and SC No.39/13 State vs. Sukhbir & Ors. Page 12 of 30 the nature of transport by which she was taken, it can be inferred that she was not unconscious when she was allegedly taken from Harsh Vihar to Dadri, Gautambudh Nagar on 26.02.2008. In the Court, she deposed that on 26.02.2008 at 9.30 P.M., when she was returning from the house of her father's sister (bua), accused Sukhbir and Raja Ram, both were present there and they met her on the way. Accused persons put some intoxicated substance on the handkerchief and put the same on her mouth. She became unconscious. When she regained her conscious, she found herself at the house of Sukhbir's friend. Thus, this statement is contradictory to her earlier statement made to police on the points of number of the persons met her. Earlier, she stated that accused Sukhbir, Raja Ram and two more boys were present there but in the Court she stated that only Sukhbir and Raja Ram, both met her on the way. In the Court, she also stated about sprinkling of sedative material on handkerchief and then, putting the same on her mouth. In the earlier statement, her statement is silent about sprinkling of sedative material on her handkerchief. In the statement, Ex. PW13/B made before the Ld. Metropolitan Magistrate, she stated that Sukhbir, Raja Ram, Himmat and two friends of Sukhbir were standing there. Thus, name of Himmat was included in the statement Ex. PW13/B. When she was re-examined SC No.39/13 State vs. Sukhbir & Ors. Page 13 of 30 after filing of supplementary charge-sheet against accused Himmat, she failed to state the name of accused Himmat but in cross examination she stated that Himmat found sitting in the TSR in Mohan Nagar along with 2/3 other friends. Thus, the prosecutrix made contradictory statements on this aspect.
18. Secondly, none of the prosecution witnesses supported the testimony of the prosecutrix on the aspect that some sedative material was administered to her by smelling. The prosecutrix did not tell this fact to her mother, PW2. As per testimony of PW4, the father of the prosecutrix, she did not mention name of Raja Ram and Himmat for putting some intoxicated material on her mouth.
Abduction/kidnapping/inducement/wrongful confinement and offence of rape
19. In order to prove its case that accused committed an offence under Section 363 IPC, prosecution has to prove firstly, that accused took or enticed the prosecutrix out of keeping of her lawful guardian; secondly, that the prosecutrix was a minor that is under 18 years of age; and thirdly, that it was done by the accused without the consent of her guardian.
SC No.39/13 State vs. Sukhbir & Ors. Page 14 of 3020. In order to prove its case that accused persons committed an offence of procuration of minor girl punishable u/s 366A IPC, prosecution has to prove firstly that the prosecutrix was a minor girl under the age of 18 years and secondly, that the accused persons induced her to go from her parents house to any other place; thirdly, that she was taken with the intention that such girl may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person.
21. In order to prove its case that accused persons committed an offence of wrongfully concealing or keeping in confinement a kidnapped or abducted person punishable u/s 368 IPC, prosecution has further to prove that the prosecutrix was wrongfully concealed or confined.
22. In order to prove its case against the accused Sukhbir Singh for the offence of rape punishable u/s 376 IPC, prosecution has to prove firstly, that sexual intercourse was committed with the prosecutrix; secondly, that sexual intercourse was committed with her by accused Sukhbir Singh either forcibly against her will and without her consent.
SC No.39/13 State vs. Sukhbir & Ors. Page 15 of 3023. On scrutinizing the evidence on record in the light of the arguments made by Additional Public Prosecutor and Ld. Defence Counsel, I come to the conclusion that prosecution has failed to prove its case against the accused persons beyond reasonable suspicion and shadow of doubt that they all in furtherance of their common intention or any of them committed above mentioned offences. The reasons which support my decision are firstly that the the prosecution could not prove that the prosecutrix was minor on the date of alleged offence.
24. The prosecutrix on the date of recording of her statement on 02.04.2009 told her age in the Court as 18 years. Although, she deposed that she had studied up to 8th standard, yet she did not tell her date of birth. Her entire examinations in chief recorded on two occasions are silent regarding her date of birth. In cross examination, she stated that she studied up to 8th Standard in _______________z-4_________________ towards Indira Puri before _______z-5___________. She did not remember the year during which she had studied in that school. She was admitted in that school in 8th class. She studied in three different schools. She also remained present in the house without admission in the school for 3-4 years. She told SC No.39/13 State vs. Sukhbir & Ors. Page 16 of 30 name of another school as _____________z-6_________________ and stated that she studied there in Nursery to 1st standard but she did not remember the years and thereafter, she was admitted to ______z-7___________ in 2nd class and studied there up to 5th class. Thereafter, she was admitted in ______________z-8________________. She denied the suggestion that she disclosed her age to accused Sukbir as 19 to 20 years on the date of alleged incident.
25. PW2, mother of the prosecutrix also failed to tell the age of the prosecutrix in the Court. She stated on this aspect that prosecutrix is her eldest daughter and she had studied up to 8th standard.
26. PW-4, father of the prosecutrix on this aspect deposed that at the time of incident, the age of the prosecutrix was less than 16 years. Although, he did not tell her date of birth, yet in cross examination he stated that he did not remember the date of birth of her daughter, the prosecutrix. He was having five children. Prosecutrix is his eldest child. His youngest child __z-9__ is 7/8 years of age. His second elder son is ___z-10___. The age difference between these two was 6 years. Subsequently, he reduced the gap from 4 to 5 years. ______z-11________ is his SC No.39/13 State vs. Sukhbir & Ors. Page 17 of 30 youngest daughter amongst the girls. She was appearing in 10th class examination. He admitted that difference of age between __z-10__ and __z-11___ may be 5 to 6 years. He explained that he was not sure. __z-12__ is his daughter who is older than __z-11__ She had already been married 4 years ago. He admitted the age difference between __z-11__ and ___z-12__ as 2-3 years. He also admitted age gap between ___z-12__ and the prosecutrix as 2 ½ years. If one calculates the age of prosecutrix on the basis of above statement of her father, then her age comes to above 18 years in all probabilities.
27. PW15 on this aspect deposed that he had brought original birth register regarding registration of child of __z-2__, wife of __y__ at serial no. 1080. She gave birth to a female child on 31.07.1991 at their house. Photostat copy of birth certificate was proved as Ex. PW15/A which was earlier marked as Mark 4B. In cross examination, he stated that information regarding birth of a female child was given by the grandfather, namely __z-13__ as mentioned at point X on Ex. PW15/A.
28. It would be appropriate to reproduce relevant provisions of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, which run as under:
SC No.39/13 State vs. Sukhbir & Ors. Page 18 of 30"12. Procedure to be followed in determination of the age.- ***(3) In every case concerning a child or juvenile in conflict with law, the age determination enquiry shall be conducted by the court or the board or, as the case may be, the committee by seeking evidence by obtaining-
(a) (i)The matriculation or equivalent certificate, if available; and in the absence thereof;
(ii) The date of birth certificate from the school (other than a play school) first attended and in the absence whereof;
(iii) The birth certificate given by a Corporation of a Municipal Authority or a Panchayat;
(b) And in the absence of either (i), (ii) or (iii) of clause
(a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of juvenile or child. In case exact assessment of age cannot be done the court or the board or as the case may be, the committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year and while passing order in such case shall, after taking into consideration such evidence as may be available or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in absence thereof clause (b) shall be conclusive proof of the age as regard such child or the juvenile in conflict of law."
29. It has been argued by Ld. defene Counsel that Ex. PW15/A can not be taken into consideration as it has not been proved in accordance with the law of evidence.
30. On considering the arguments of Ld. defence Counsel, I come to the conclusion that genuineness of Ex.
SC No.39/13 State vs. Sukhbir & Ors. Page 19 of 30PW15/A has not been proved beyond reasonable suspicion and shadow of doubt. There are three reasons to discard this documents. The first reason is that grand father's name of the prosecutrix does not tally. In cross examination, PW15 deposed that information regarding birth was given by grandfather namely __z-13__. Complainant PW4 who is father of the prosecutrix told the name of his father as __z-1__. Thus, the date of birth of the prosecutrix was mentioned 31.07.1991 on the basis of information given by stranger in the MCD office. The second reason is that the prosecutrix who studied up to 8th class told her date of birth before Ld. M.M. as 31.07.1990 in her statement Ex. PW13/B recorded under Section 164 of the Code. The third reason is that as per the deposition of complainant, PW4 as discussed above, age of the prosecutrix in all probabilities comes to above 18 years of age. In view of these reasons, the provisions of Rule 12 of Juvenile, do not come to the rescue of the prosecution in proving that the prosecutrix was below 18 years of age. In view of the reasons and discussion and evidence on record and particularly discussed herein above it is held that the prosecutrix was more than 18 years of age on the date of committing of alleged offences.
31. Secondly, the testimony of the prosecutrix has SC No.39/13 State vs. Sukhbir & Ors. Page 20 of 30 also failed to prove the prosecution case. PW1 deposed that when she regained her consciousness, she found herself in the house of Sukhbir. Accused Sukhbir confined her in the said house for 1 month. From there he took her to Aligarh at the house of some known relative and he kept her there for about 2 days. Accused Sukhbir committed rape with her at Aligarh. From there he brought her to the village Bargadpur and he left her at the house of his aunt. His aunt asked him to leave from her house. She returned back to Gautambudh Nagar at the house of friend of Sukhbir. One of the friend of the accused whose name she did not recollect, came there and took her to Bulandshaher jail and left her there. Himmat brother of Raja Ram met her outside the jail. He asked him to depose before the police in favour of his brother and he accompanied her up to Delhi outside PS Nand Nagri. This statement of the prosecutrix is not in conformity with her statement dated 27.07.2008 made before the police wherein she stated that after bringing her at Aligarh, Sukbhir forcibly married her in Arya Samaj Mandir. He took her back to Dadri where they stayed for 15-20 days and then Sukhbir brought her to his village Bargadpur, Bulandshehar where they stayed for 1 day and there only Sukbhir committed wrong act with her against her wishes. Wife of Munni Lal died and in that case police arrested Sukhbir and Raja Ram. She stayed SC No.39/13 State vs. Sukhbir & Ors. Page 21 of 30 with aunt of Sukhbir for about 8 days and when she did not allow her to stay there, she stayed here and there for 2-3 days and thereafter, she stayed with wife of friend of Sukhbir and then returned to Delhi. Thus, her statement made to the police is contradictory to the statement made in the Court. As per statement given to the police, the accused Sukhbir made physical relations only after solemnization of marriage but as per the statement made in the Court, the wrong act was committed with her in Aligarh against her will.
32. The evidence on record has established that when prosecutrix returned to Delhi accused Sukhbir and Raja Ram were in Bulandsher Jail. She was produced before the Doctor for her medical examination who deposed in the Court as PW12. He stated that on 28.07.2008, he was working as Senior Resident at GTB Hospital. On that day at about 12.05 PM (midnight) one girl namely ___x___, aged about 17 years was brought by SI Beena Thakur for her medical examination. ___x_________ had given the history as missing from her parents house since 28.02.2008 and was taken forcefully by Sukhbir who lived near her home and she was taken to Dadri U.P and then to village of Sukhbir where she lived with him for a month and there she had sexual contacts several times with Sukhbir with SC No.39/13 State vs. Sukhbir & Ors. Page 22 of 30 her own consent and then she was taken to Bargadpur, Chattar, UP where she lived with Sukhbir for a day and resided with Sukhbir's relative and she was happy there. She lived there for 4 months and then she came back to her home. She refused for her internal medical check up. This statement made before the Doctor has created reasonable suspicion and shadow of doubt in favour of the accused that the prosecutrix was neither enticed nor kidnapped or abducted with the purpose of solemnization of marriage against her wishes. Besides, marriage certificate, Ex. DW1/A contains the age of prosecutrix as 19 years. In the photographs, Ex. PW1/C and Ex. PW1/D, the prosecutrix is seen and she is taking blessings of the Pundit in one of the photographs.
33. Lastly, the conduct of the prosecutrix also provides benefit to the accused persons. Accused no. 1 and Sukbhir and Raja Ram were arrested on 07.04.2008 by the police. Thus, after 07.04.2008, there was no control of accused Sukhbir and Raja Ram on the prosecutrix but instead of returning to her house soon after 07.04.2008, she returned to her house on 27.07.2008. She deposed that she stayed with aunt of accused Sukhbir for a week and then with wife of his friend and then returned back. DW1 and DW2 also noticed the prosecutrix living there.
SC No.39/13 State vs. Sukhbir & Ors. Page 23 of 30This has further supported the plea of the accused persons that there was no pressure, coercion or influence either at the time when she accompanied the Sukhbir or during the period she stayed with Sukhbir or during the period when Sukhbir remained in jail.
Other reasons of conclusions
34. On considering the rival contentions of Additional Public Prosecutor for the state, Ld. defence Counsel for the accused persons and analyzing the evidence on record, I come to the conclusion that prosecution has failed to prove its case against all or any of the accused beyond any reasonable suspicion and shadow of doubt that they all or any of them committed offence of kidnapping from lawful guardianship or offence of procuration of minor girl or offence of wrongfully concealing or keeping in confinement a kidnapped or abducted person or causing hurt by poisonous substances. The reasons which support my conclusion are firstly, that testimony of prosecutrix and other prosecution witnesses have been found inconsistent, contradictory, unreliable and untrustworthy. Some of the contradictions have already been narrated herein above. Besides, there is also contradiction on the point of commission of rape either by SC No.39/13 State vs. Sukhbir & Ors. Page 24 of 30 accused Sukhbir or by other accused persons. In her statement made to police she stated that only accused Sukhbir committed wrong act with her against her wishes. But in the Court she stated that accused Raja Ram who is brother in law of accused Sukhbir Singh also committed rape with her at Aligarh. Her father, PW4 deposed that his daughter, the prosecutrix told her that she was raped by accused Sukhbir, Raja Ram, Munni Lal and Babloo.
35. She also deposed inconsistently on the role of accused Himmat. In the statement made before the police on 28.07.2008, she implicated accused Himmat as a person who was standing with accused Sukhbir and Raja Ram. As did not implicate accused Himmat and also failed to support the prosecution case, she was allowed to be put leading questions and then she stated that she had also stated to the police that accused no. 3 Himmat was also present with accused no. 1 and 2. Inconsistent and contradictory testimonies of the prosecution witnesses provide benfit to the accused persons.
36. My decision finds support by principles of law laid down in case Narvan @ Naran Vs. State of Rajasthan 2007 (2) JCC 1202 wherein the Apex Court observed that evidence of the prosecutrix, if acceptable, is sufficient to SC No.39/13 State vs. Sukhbir & Ors. Page 25 of 30 establish charge of rape against the accused but where her evidence is so artificial and full of material contradictions, same cannot be accepted and conviction based thereon cannot be sustained.
37. My decision also finds support by principles of law laid down in case Narender Kumar Vs State (NCT of Delhi) 2012 (5) LRC, wherein the Apex Court observed that:
"Where evidence of prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even through her version may be otherwise, no reliance can be place upon her evidence."
38. Secondly, the evidence on record has supported the plea of the accused that the prosecutrix herself left her house with the accused Sukhbir. Besides, the accused Sukhbir Singh examined himself as defence witness and in his deposition, he stated that the prosecutrix compelled him to leave her home and she left her home of her own. The testimony finds support by other evidence on record. This also provides benefit to the accused persons.
39. My decision in this regard finds support by principles of law laid down in case Naresh Kumar Vs State SC No.39/13 State vs. Sukhbir & Ors. Page 26 of 30 (NCT of Delhi) 2012 (7) LRC wherein the Delhi High Court observed that where prosecutrix had willfully accompanied with the accused and had stayed with him on her free will and was consenting party. The offences under Section 376 or 363 IPC are not made out.
40. Thirdly, the prosecution evidence could not achieve the standard of proving its case as laid down in a case In case Ashok Narang v. State, 2012 II AD (Delhi) 481, wherein Delhi High Court has, inter alia, held that testimony of a single witness in a criminal trial is acceptable but the evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, and must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. The offence of rape is a heinous one which carries grave implications for the accused if convicted. Therefore, the degree of proof had to be of a high standard and not a mere possibility of committing the said offence.
41. Fourthly, in the facts and circumstances of the present case coupled with the nature of evidence which have come on the record, I am of the view that accused is entitled to get benefit of doubt.
SC No.39/13 State vs. Sukhbir & Ors. Page 27 of 3042. My decision finds support by a case Ajmer Singh and another v. State of Haryana, II-1989(1) Crimes 424, wherein it was held by P&H High Court that:
"It is not necessary for the accused to substantially prove their plea. Suffice it to say that if the accused succeeds in creating a doubt, they would be entitled to benefit of it."
43. Fifthly, my attention goes to a case reported as Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, wherein it was inter alia held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."
The principles of law laid down in above case are applicable on the facts of present case and therefore, it is held that accused persons are entitled to get benefit of doubt as in the present case two views, one, leads to their innocence and another leads to their involvement in the crime are possible.
44. Lastly, it is one of the basic principles of criminal jurisprudence that let hundreds of criminal may go unpunished but one innocent person should not be punished. It would be just fair and appropriate, if accused SC No.39/13 State vs. Sukhbir & Ors. Page 28 of 30 persons are given benefit of doubt as the prosecution has failed to prove its case against them beyond any reasonable suspicion or shadow of doubt.
CONCLUSION
45. Consequent upon above reasons, discussion and evidence on record and particularly discussed here in above, it is held that prosecution could not prove its case beyond any reasonable suspicion and shadow of doubt against all or any of the accused persons that they all or any of them in furtherance of their common intention committed offence of kidnapping from lawful guardianship or offence of procuration of minor girl or offence of wrongfully concealing or keeping in confinement a kidnapped or abducted person or causing hurt by poisonous substances or accused Sukhbir Singh committed offence of rape on the prosecutrix. Resultantly, accused Sukhbir Singh, Raja Ram and Himmat are acquitted for the offences punishable u/s 363/366A/368/328/34 IPC by giving them benefit of doubt and accused Sukhbir Singh is also acquitted for the offence punishable u/s 376 IPC by giving him benefit of doubt.
46. However, in view of provisions of Section 437 A SC No.39/13 State vs. Sukhbir & Ors. Page 29 of 30 of the Code accused persons are directed to furnish within a week bail bond/surety bond in the sum of Rs.20,000/- with one surety each of like amount for the period of six months.
47. After furnishing of surety bonds, file be consigned to Record Room.
Announced in the Open Court Dated: 05.12.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.39/13 State vs. Sukhbir & Ors. Page 30 of 30