Delhi District Court
Either Side Has To Be Given. Reliance Can ... vs . Home on 11 July, 2007
1
IN THE COURT OF SHRI H.S.SHARMA, ADDL.SESSIONS JUDGE, DELHI.
S.C No. 54-05-06
STATE
VS.
SUNNY SINGH
S/o Shri Krishan Dev Singh
R/O Village Madhuban
P.S.Madhuban
District Motihari (Bihar).
FIR No. : 60/2005
P.S. : SUBZI MANDI
U/Ss : 363/376 IPC
Date of Institution : 10.05.2005
Date of receipt of this case in this Court : 10.05.2005
Date of Arguments : 11.07.2007
Date of Decision : 11.07.2007
Appearance :
Shri Jeetender Arya, Ld. Addl.P.P for the State.
Shri B.S.Chaudhary, Advocate for the accused.
JUDGMENT
The Indian Penal Code had been enacted in 1860. Although, it has been debated at different forums that there appears to be some anomaly regarding the age of consent appearing in sections 366 and 376 IPC yet nothing has been done in this regard. It goes without saying that the offence of rape is far more serious than the offence punishable U/s 366 IPC. The age of consent U/s 376 IPC is 16 years. The debate is still going on. 2 2 The prosecution case in brief is that the Prosecutrix Ms.M (name withheld) used to work as a sales girl in the shop of Abhirin Jain (PW2). She used to be left at the shop by Akhilesh Kumar, a cousin of the Prosecutrix. Akhilesh Kumar used to fetch her in the evening. On 17.02.2005, as usual, the Prosecutrix had gone to the shop with Akhilesh Kumar. She was left at the shop. The accused, who was a neighbour of the Prosecutrix, then went to the shop at about 12 noon. He told her that she had been called by her parents as her mother was ill. He took the Prosecutrix in a TSR to the I.S.B.T Kashmiri Gate. From there, she was taken to Ambala in a bus. There liquor was mixed in the Coco Cola and was given to her. She was then raped. From Ambala she was taken to Meerut in a Bus. In Meerut she was taken to the house of sister of Raj Kumar, a friend of the accused. On the next day, the Prosecutrix was taken to a room in a hotel. There she was threatened that her parents will be killed in case she refused to marry with him. In the hotel, she was forced to take liquor. She used to be undressed. The accused had committed rape on her in the hotel room. They had stayed there for about 7 days. When the accused had satisfied his lust, he brought the Prosecutrix to Delhi and left near her house. 3 When the Prosecutrix did not come back on 17.02.2005, a search was made by her parents namely Shri Ramesh Kumar (PW-5) and Smt. Geeta Devi (PW-6). A missing report was then lodged on 18.02.2005. However, when the owner of the shop namely Shri Abhirin Jain (PW2) disclosed to the 3 parents of the Prosecutrix that the Prosecutrix had left the shop at about 11.45 AM on the pretext of her having abdominal pain, therefore, an FIR was registered on 19.02.2005. The accused was named in FIR. When the Prosecutrix had come back on 24.02.2005 and had gone to her house, she was taken by her father to the Police Station Sabzi Mandi. Her recovery memo Ex.PW5/B was prepared. She was got medically examined vide M.L.C Ex.PW3/A and Ex.PW4/A. Vaginal swabs were also taken. They were sealed. The under garments of the Prosecutrix were also taken. The accused was arrested on 25.02.2005. He was also got medically examined. On 28.02.2005, the Prosecutrix was produced before Shri Raj Kapoor, Ld. MM, Delhi and her statement U/s 164 Cr.P.C was recorded. The blood sample of the accused was also taken. All the sealed articles were deposited with the M.H.C (M). They were sent to C.F.S.L. The ossification test of the prosecutrix was also got conducted. The school leaving certificate was obtained as the Prosecutrix had studied in J.H.School Beelakpur, Trivedi Ganj Barabanki. After necessary formalities the accused was challaned to face trial.
4 Charges U/Ss 363/366/376 IPC were framed on 20.03.2003. The accused pleaded not guilty and claimed trial.
5 In order to substantiate the charges, the prosecution has examined 20 witnesses in all.
46 H.C.Harphool Singh PW1 had recorded the FIR on 19.02.2005 on the statement of Shri Ramesh Kumar (PW5). Copy of the FIR is Ex.PW1/A. 7 Abhirin Jain (PW-2) was the owner of the shop where the Prosecutrix used to work as as sales girl. He has stated that on 17.02.2005, the Prosecutrix had come to the shop at 10.30 AM and had left the shop at about 11.45 AM on the pretext that she was feeling abdominal pain. Thereafter, she did not turn up. IN the cross examination, it was stated by him, that he used to employ only major persons. The Prosecutrix was also major. 8 Dr. J.N.Chakrawarti (PW-3) had medically examined the Prosecutrix vide MLC Ex.PW3/A. She had been brought by Smt. Geeta Devi and Constable Ms.Anita. The Prosecutrix was referred to EMO Gynea for her Gyneacological checking. She was also referred to expert for ascertaining her age.
9 Dr. Shailja(PW-4) had examined the Prosecutrix. She found that hymen was torn. Vaginal swabs were taken and sealed. The same were given to constable Ms.Anita. The Prosecutrix was referred to the Radiologist for determination of her bony age.
10 Shri Ramesh Kumar Pandey (PW-5) and Smt. Geeta Devi (PW-6) 5 are the father and mother respectively of the Prosecutrix. They have supported the prosecution and have stated that the Prosecutrix was aged around 16 years. She had gone to the shop. However, she did not come back. Thereafter, the report was lodged.
11 Woman Constable Anita (PW7) had accompanied the Prosecutrix to Hindu Rao Hospital for her medical examination. She had been handed over 3 sealed pulandas by the Duty Constable. The same were seized vide memo Ex.PW1/A. 12 The Prosecutrix has appeared as PW-8. She has narrated the facts. She has stated that on 17.02.2005 at about 12 noon she was present at the clock shop situated at Ghanta Ghar Market. Accused Sunny came to her and told her that she was called by her parents. On the pretext of illness of her mother, he boarded her in a TSR and took her to ISBT Kashmiri Gate from where he took her to Meerut in a bus. He had taken her to the sister of his friend Raj Kumar. They remained there for 7 days. On the next day, the accused took her to a room in a hotel in Meerut. There, he had threatened her that in case, she did not marry with him, he will kill her parents. He used to lock her in the room and used to go outside. In the hotel, he had forced her to consume liquor. After forcing her to consume liquor, he used to remove all of her cloths and used to have sexual intercourse with her, forcibly and against 6 her wish. He used to do such act daily. When his lust had been satisfied, he had brought her back to Delhi to his tenanted room. Since, the witness was to depose that first of all, she had been taken to Ambala, therefore, she was cross- examined by Ld. Addl.P.P and she admitted this fact. So far as her cross examination is concerned, the same shall be dealt with by me in the later part of my judgment.
13 Dr. Kaushik Jain (PW-9) had prepared the MLC Ex.PW9/A of the accused. Dr. Kaushik had opined that the accused was competent to perform sexual intercourse. Dr. D.K.Dass PW10 had also examined the accused and prepared his MLC Ex.PW10/A. 14 Ms.Janaki Budh Singh PW-11 was the principal of the school namely M.S.Purv Madhyamik Vidhyalya Samakpur, Trivedi Ganj, Barabanki. She has proved the school leaving certificate of the Prosecutrix (Ex.PW11/B). As per this certificate, the date of birth of the Prosecutrix was 10.10.1991. 15 H.C.Naipal Singh (PW12) was the MHC (M). He had deposited the personal search belongings of the accused and made entry in register no. 19. He had also received the 3 sealed parcels from the IO. He made entry in register no. 19. He has sent the sealed parcels to C.F.S.L, Kolkata through constable Karamvir vide RC NO. 12/C. Copies of the relevant entries of register 7 no. 19 are Ex.PW12/A and Ex.PW12/B. 16 Dr. Sunil Rai (PW13) has proved the handwriting and signature of Dr. Subha Jyoti who had prepared the potency certificate Ex.PW13/A of the accused. This doctor has been examined in place of Dr.Subha as Dr. Subha Jyoti who had prepared Ex.PW13/A had left the service and her present whereabouts were not known.
17 Constable P.R.Patnayak (PW14) had accompanied the S.I. Rakesh Kumar (IO) on 24.02.2005. In his presence, the accused was arrested. His personal search memo and arrest memo were prepared. He had taken the accused to the hospital for his examination.
18 Shri Raj Kapoor Ld. MM, PW15 had recorded the statement of the Prosecutrix U/s 164 Cr.P.C vide the proceedings Ex.PW15/A. 19 Constable Virender PW-16 had joined the investigation and had accompanied ASI Geeta Devi, lady constable Anita and the accused to the hospital. The Prosecutrix was also taken to the hospital for her medical examination. Sealed pulandas were also taken vide memo Ex.PW7/A. 20 Constable Karamvir PW-17 had taken the sealed pulandas on 8 20.03.2005 from MHC(M) to C.F.S.L, Kolkata. He had deposited the same in the office of C.F.S.L, Kolkata on 21.03.2005.
21 Constable Dhiraj (PW 18) had been working as a duty constable in Hindu Rao Hospital. He has stated that the accused was medically examined. The doctor had handed over two sealed pulandas to him (constable Dhiraj). He, in turn, had handed over the same to the IO. The pulandas were taken into possession vide memo Ex.PW7/A. 22 SI Rakesh Kumar (PW-19) had investigated the case.
23 ASI Geeta Rani (PW-20) had partly investigated the case. She had sent the exhibits to CFSL, Kolkata through constable Karambir. She got the ossification test of the prosecutrix done to find out her bone age. Thereafter, she had filed the challan.
24 Ld. Addl.P.P had tendered the report dated 29.06.2005 of the Sr. Scientific Assistant as Counsel for the accused did not object to the exhibition of the report. It was exhibited as Ex.PX.
25 After closure of evidence of prosecution, the accused was examined U/s 313 Cr.P.C. He denied that he had forcibly taken the prosecutrix 9 or that she was minor or that she had been raped. According to him, the prosecutrix was aged 20 years. In reply to the question as to whether he has anything else to say, he gave the following reply:-
"I am innocent. The prosecutrix had desired to marry with me. In fact, she had married with me in a temple. Later on, she had changed her idea. I had not raped her. The prosecutrix had accompanied me of her own free will. I did not have sexual intercourse with her. Mukesh the brother of the Prosecutrix knew that the Prosecutrix wanted to marry with me".
26 The accused did not produce any evidence in defence. 27 I have heard Ld. Addl.P.P for state and Ld. Counsel for the accused. I have also gone through the file.
28 In the present case, the accused has been charged for the offences punishable Under Sections 363/366/376 IPC. It is to be seen from the evidence as to whether the prosecutrix was a minor on the date of occurrence. If she was not a minor then whether she had gone with the accused of her own accord or had been enticed away.
29 In order to prove the age of the prosecutrix, the prosecution has relied on the statements of Ramesh Kumar (PW-5), Smt. Geeta Devi (PW-6 ) and Ms. Janaki (PW-11). It has also relied on the school transfer (leaving) certificate Ex.PW11/B wherein the date of birth of the prosecutrix has been 10 mentioned as 10.10.1991. The prosecution case is that the prosecutrix had been taken away by the accused on 12.02.2005. Therefore, if the birth certificate Ex.PW11/B is treated to be an authenticated proof of age, it can be said that the prosecutrix was less than 16 years of age on the date of occurrence. However, Ex.PW11/B shows that the prosecutrix had been admitted in this particular school in class 6th on 15.07.2001. No form, filled in by the guardian of the prosecutrix, at the time of her admission in the primary school has been proved by the prosecution. In the cross examination, it was admitted by Ramesh Kumar PW5) that he has 4 children and their births were not got registered by him. He was unable to tell as to when he had been married. He had brought his daughter to Delhi after completion of her 7th class. He was residing in Delhi for the last 15 years. Smt.Geeta (PW6), in her cross-examination, has admitted that her daughter was got admitted in the school by her (witness's) parents. She was unable to tell as to what age was got recorded by her parents. Abhireen Jain (PW2) in his cross-examination has stated that they used to employ only major persons and the prosecutrix was also major. When the Prosecutrix was examined by Doctor Shailja (PW4), she (prosecutrix) had stated her age to be 18 years. This was so stated by Doctor Shailja (PW4). Thus, we do not have any birth certificate. The school leaving certificate had been issued by the officials of Middle School. The date of birth was got incorporated in the record by the parents of mother of the prosecutrix. We do not have any authentic record regarding the proof of age. 11 The prosecutrix had been sent for her ossification test. However, the prosecution deliberately did not examine the Doctor. Since, the report is on the file, therefore, it can be taken against the prosecution without proof. As per this report dated 06.04.2005, the radiological age of the prosecutrix was between 17-18 years. It is now well settled that a margin of two years on either side has to be given. Reliance can be placed on Jaya Mala vs. Home Secy. AIR 1982 SC 1297. Since, the prosecution has failed to satisfactorily prove that the prosecutrix was less than 18 years of age, therefore, in view of her radiological age, it can be said that she was major on the date of occurrence.
30 It brings me to the second question as to whether she had been enticed away or not. For that purpose, her cross-examination is decisive. It was admitted by her that she had gone to ISBT from Ghanta Ghar in a TSR and reached there at about 12.30PM. They had waited for 15 minutes before boarding the bus for going to Ambala. Thousands of persons were present at the bus stand. A no. of persons were present at the bus stand of Ambala. They had reached Ambala during day time. She did not raise any alarm. She did not tell any passenger. She had volunteered that she had been threatened by the accused. She admitted that she had made the statement before the Ld.MM. In her statement Ex.PW15/A , she had stated that she had gone of her own to Bihar where they had voluntarily married on 19.02.2005 in a temple. 12 Abhireen Jain (PW2) in his chief has stated that on 17.02.2005, the prosecutrix had left the shop of her own on the pretext that she was having abdominal pain. All these circumstances indicate that the prosecutrix was a consenting party. In these circumstances, no offence is made out. Reliance can be placed on State of Karnataka vs. Suresh Babu AIR 1994 SC 966. In view of the above discussion, I hold that prosecution has miserably failed to prove its case beyond reasonable doubt. Therefore, the accused is given benefit of doubt & is acquitted of all the charges.
31 Case property be destroyed after expiry of period of limitation of appeal/revision. File be consigned to Record Room.
Announced in the open Court (H.S.SHARMA) On this day of 11th July, 2007 ASJ/Delhi All pages signed