Delhi District Court
State vs . Sujeet Kumar on 15 April, 2013
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 18/12)
Unique ID case No. 02404R0013722012
State Vs. Sujeet Kumar
FIR No. : 457/11
U/s : 363/376 IPC
P.S. : Prashant Vihar
State Vs. Sujeet Kumar
s/o Dal Chand
r/o H. No. A40,
Village Badli, Jatar Mohallah,
Rohini, Delhi.
Date of institution of case 09.01.2012
Date on which, judgment has been reserved 12.04.2013
Date of pronouncement of judgment 15.04.2013
JUDGMENT:
1 Case of the prosecution is that on 16.10.2011 prosecutrix came to Police Station along with her mother Smt. Inama and gave her statement Ex.PW2/A to IO SI Karan Singh, wherein she stated that she was residing at Nathu Ka Makan, Village Rajapur, Delhi, with her parents and used to stay at home and that her mother was working as a maid servant in house No.57, Vikas Sheel Apartment, Sector13, Rohini.
SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 1 of 29 2 She further stated that accused Surjeet Kumar s/o Dal Chand r/o H. No.40A, Village Badli, Delhi, was working as Driver and that she was on talking terms with him and that one day accused asked prosecutrix to marry him but she refused. On 12.10.2011 accused again proposed marriage to her and at that time prosecutrix got enticed by his talks. Accused took her in a bus to Panipat and Haryana where he kept her in a room and at night he forcibly raped her. On next day accused took her in a bus to Haridwar to a Dharamshala and there again at night he raped her. On next day, accused brought prosecutrix to Delhi. He also informed mother of prosecutrix and told her that they both would be coming to Rohini Court and that he intended to marry prosecutrix. The accused brought prosecutrix to Rohini court but he went away after leaving her there. The mother of the prosecutrix reached Rohini Court and took her to P.S. Prashant Vihar, where prosecutrix gave her statement Ex.PW2/A. Prosecutrix alleged that accused had enticed her away and had raped her against her wishes and prayed that action be taken against him. On the basis of this complaint case FIR No.457/11 u/s. 363/376 IPC was registered at P.S. Prashant Vihar against the accused and he was arrested in the case. 2 During the course of investigations, prosecutrix as well as accused were got medically examined. The statement of prosecutrix was got recorded u/s.164 CrPC. The case property was sent to FSL. After completion of the investigation and recording of statement of witnesses, the charge sheet was prepared and filed in the court for trial. 3 Upon committal of this case to the court of Sessions, charges for the offence under Sections 363/376 IPC were framed against the accused Sujeet Kumar, however, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 2 of 29 3 prosecution evidence.
4 In order to prove its case, prosecution has examined 16 witnesses : 5 The PW2 is the prosecutrix in the present case. Her testimony shall be discussed at length in the following paragraphs of the judgment. 6 The PW1, Sh. Badri Khan, is the father of the prosecutrix. He deposed that he was native of Bengal and had come to earn living at Delhi, about 2 / 2 ½ years ago, with his family and that he had two sons and two daughters, out of whom, one of his daughters was married and that his wife Meena did work of washing utensils in a kothi and his daughter (prosecutrix) remained at home to do the house work. He further deposed that his daughter used to go to school when he was staying in his native village in Bengal but after a fire in his jhuggi, he did not have any documents of date of birth of his daughter (prosecutrix). He further deposed that two months ago, his wife had fallen ill and that she took prosecutrix with her to help her in her work and that prosecutrix returned back at about 12:00 Noon and that at that time he was at home and was cooking food as prosecutrix had gone with her mother and that prosecutrix told him that she was having high fever and requested him to fetch medicine for her and that he took prosecutrix to a doctor, who prescribed medicines and that thereafter he told prosecutrix to go home so that he could bring medicine for her and that when he reached home after buying the medicine, he did not find prosecutrix at home and when he inquired from the local people, he was told that one person had taken away his daughter and that he searched for his daughter and SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 3 of 29 4 thereafter he went to his wife and told her what had happened and his wife also did not know about the whereabouts of his daughter. The PW1 further deposed that his wife told him that one person by the name of Sujit, who was a driver, used to roam around in the area and that she suspected that accused Sujit had taken their daughter and that they contacted the elder brother of Sujit, who was also working as driver and told him that Sujit had taken away their daughter and that said brother of accused told them that Sujit had taken one girl with him but he did not know about the place where accused had so taken her.
7 The PW1 further deposed that after two days, brother of Sujit called him and told him to reach Rohini Court at about 4:00 - 4:30 PM, where Sujit was found with his brother, bhabhi and other persons and that prosecutrix was also with accused Sujit and that daughter of PW1 told him that Sujit had committed wrong with her and that PW1 reported the matter to the Police and accused Sujit was arrested and that his daughter had also told him about the places to which accused Sujit had taken her but PW1 could not remember the names of said places.
8 The PW1 was crossexamined by learned Additional PP. During his cross examination, PW1 admitted that his daughter went missing on 12.10.2011 and that accused Sujit was working as driver in the same apartment, where his wife used to do the work as housemaid and that his daughter told him and his wife that on 12.10.2011 accused Sujit had taken prosecutrix to Panipat and on 13.10.2011 to Haridwar.
9 During his crossexamination by learned counsel for accused, PW1 stated
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that he did not have any document (ration card or voter identity card) to show that he had been residing in Delhi since last about 2 / 2 ½ years and that all of his four children were born at Bengal, at home, and that he had not got date of birth of his children registered with any authority like Panchayat, Municipality etc. and that his first three born children including the prosecutrix had gone to school and that prosecutrix had studied only up to 3 /4th class in their native village but he did not have any proof of date of birth of the prosecutrix and that the documents pertaining to schooling of his children were destroyed when his jhuggi was damaged in floods.
10 PW1 further deposed that there was no specific time of his leaving and coming back to his house from work and that his daughter (prosecutrix) used to remain at house and that he came back to his house after purchasing medicines at about 1:30 PM and that when he did not find his daughter, he made inquiries from neighbours, relatives and other villagers. During his further crossexamination, PW1 stated that prior to the incident, accused Sujeet Kumar and his family members were not known to him and that accused Sujeet Kumar never visited to their house prior to the incident as accused was not known to them. The PW1 denied the suggestions that brother of accused Sujeet Kumar had not told him that accused had taken prosecutrix with him. 11 The PW4, Smt. Inama, is the mother of the prosecutrix. She deposed that she had four children, out of whom two were sons and two were daughters and that prosecutrix was her third child and that then age of her daughter (prosecutrix) was about 14 years and that PW4 was doing the job as a maid in Vikasheel Apartments Society. She further deposed that two days prior to the incident, she did not remember the month SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 5 of 29 6 and year, but stated that the date was 09th / 10th , when she was ill and was not able to go for her work and thereafter she asked her daughter (prosecutrix) to accompany her to help her in her work and accordingly, her daughter (prosecutrix) accompanied her. The PW4 further deposed that accused Sujeet Kumar was also working as Driver in the said society. The PW4 then stated that her daughter broomed the house and after finishing the work of dusting, her daughter sat on the stairs outside the house while PW4 cleaned the utensils inside the house and thereafter accused Sujeet Kumar gave something like Biscuit to her daughter and after taking the said biscuit, prosecutrix told PW4 that she was feeling giddiness and wanted to go back to home and that PW4 told the prosecutrix to go home and that she would return back after finishing her work. The PW4 further stated that after about 2 / 3 hours of leaving her daughter, her husband came there searching for prosecutrix and told her, that prosecutrix had told him that she was not feeling well and on this, her husband had gone to bring some medicine for her and that when he returned back, he did not find the prosecutrix and thereafter PW4 along with her husband went in search of their daughter. The PW4 further deposed that in the society itself, one person told them that her daughter had been taken away by one boy from her house and later on she came to know that her daughter had been taken away by the boy, who used to do driving work, whose name later she came to know as that of accused Sujeet Kumar and she and her husband went to PS and reported the matter. The PW4 further deposed that the lady for whom she was working in the society also made inquiry at her own level and came to know that the brother of accused Sujeet Kumar was also working in the same society and her employer also helped her by making call to brother of the accused and that the brother of accused was asked to bring back her daughter and that he assured her that SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 6 of 29 7 her daughter would be brought back and that at that time she was told that accused was at Panipat with her daughter. The PW4 then deposed that after three days, her daughter was brought to Rohini Court by accused, his brother and bhabhi and other relatives and since they were also informed that their daughter would be brought to Rohini Court, she and her husband also came there and that from Rohini Court, they all went to PS. 12 This witness was crossexamined by learned Additional PP for State. During her crossexamination by learned Additional PP, PW4 admitted that her daughter went missing on 12.10.2011 and that prior to 12.10.2011 PW4 had been ill for two days and that on 15.10.2011 her daughter was brought by the accused at Rohini Court. She denied the suggestion that accused Sujeet Kumar left her daughter at Rohini Court and went away or that thereafter she and her husband took her daughter to PS. The PW4 admitted that she had made inquiries from her daughter, who told her that accused Sujeet Kumar took her away after enticing her and that he had committed 'galatkam' (rape) upon her and that she had accompanied her daughter for her medical examination and thereafter she was permitted to take her daughter with her and that on the next day i.e. 16.10.2011 accused was arrested by the Police vide arrest memo Ex.PW4/A. 13 During her crossexamination, PW4 stated that she did not tell the police that she was doing the work of sweeping and cleaning in the society and that she did not remember if she had told the Police that on the day prosecutrix went missing, prosecutrix had accompanied her to her place of work to assist her and that she did not tell the SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 7 of 29 8 Police or any other person including the landlady, where she was working at that time, that accused had given her daughter a biscuit to eat after which her daughter fell ill and went home. The PW4 admitted that she had not stated the name and address of her employer in her statement to the Police and that in her presence, Police had visited the said society and made inquiries from her employer. The PW4 then deposed that she and her husband had reached their home at about 3:00 PM and that at that time, her two children were present there. The PW4 further deposed that she could not tell the name and address of the person, who told her about the accused.
14 The PW5, Sh. Deepak Wason, learned MM, Saket Courts, Delhi, had recorded the statement of prosecutrix u/s.164 CrPC. He proved the said statement as Ex.PW5/B. The applications for recording of statement u/s.164 CrPC and supply of copy of said statement filed by IO were proved as Ex.PW5/A and Ex.PW5/D respectively while the certificate given by PW5 was proved as Ex.PW5/C. 15 The PW6, Dr. Uday, SR Surgery, had further examined the patient Surjeet Kumar on being referred by Dr. Anita, who had initially examined him, vide MLC No. 9942/11 dated 16.10.2011. He deposed that on examination, he found that there was no sign of external injury and that genitalia anatomically normal and that meatal swab, undergarments, public hairs, scalp hairs, blood sample and blood swab of patient were collected and sealed and handed over the CMO. The PW6 proved MLC of patient / accused Sujeet Kumar as Ex.PW6/A whereupon his observations were made from portion "A" to "A". The PW6 further deposed that he referred the patient to Forensic Expert for expert opinion.
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16 The PW7, Dr. Rajeev Ranjan, is the Chairperson of the Medical Board
which had examined the prosecutrix for assessment of her medical age. He deposed that after radiological, physical and dental examination of the prosecutrix, the Medical Board opined her estimated age to be more than 17 but less than 20 years as on the date examination i.e. 12.10.2011. He proved the said report as Ex.PW7/A. 17 The PW14, Dr. Vijay Dhankar, is one of the members of the Medical Board which had examined the prosecutrix for assessment of her medical age. He deposed on the lines of PW7 and proved his signatures at point 'B' on report Ex.PW7/A (inadvertently again exhibited as Ex.PW14/A).
18 The PW10, Dr. Jaya, SR (OBS Gynecologist), had examined the prosecutrix and prepared her MLC No.107/11 dated 15.10.2011. She deposed that on 15.10.2011 at about 11:45 PM, she medically examined the prosecutrix, who was produced before her with alleged history of sexual assault by person namely Sujeet Kumar and that on local examination of patient, she found that the patient was mesurating and that no tear around introitus was found and that for comment on hymen, examination under anesthesia was required which was refused by parents of the patient. She further deposed that samples were taken and same were kept in a sexual assault kit and sealed with the seal of Hospital and handed over to the Police. She proved the MLC of prosecutrix as Ex.PW10/A. 19 The PW8, Ct. Manoj Kumar, had taken the exhibits of the case to FSL SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 9 of 29 10 Rohini, on directions of IO, and deposited them there, vide RC No.101/21/11 and deposed regarding the same.
20 The PW11, HC Karan Singh, was posted as MHCM at P.S. Prashant Vihar at the relevant time. He produced Register No.19 and proved the relevant entries of deposit of samples and other articles at Malkhana and about sending them to FSL as Ex.PW11/A to Ex.PW11/D. 21 The PW15, Smt. Anuradha, is a member of NGO Nav Sristi and on 16.10.2011 on receipt of a call from PS Prashant Vihar, she had gone there and counseled prosecutrix and deposed regarding the same.
22 The PW12, SI Karan Singh, deposed that on 15.10.2011, when he was on emergency duty at PS Prashant Vihar, prosecutrix came there along with her parents and disclosed that she had been kidnapped by accused Sujeet Kumar, who had committed rape upon her and that he had recorded the statement of prosecutrix. He further deposed that thereafter he called SI Leela Devi in the PS Prashant Vihar, who took prosecutrix to BSA Hospital along with her mother and that after medical examination, W/SI Leela Devi came to PS along with prosecutrix and her mother and handed over two parcels sealed with the seal of SD and one sample seal of SD which were taken into possession by him. He then deposed that he prepared rukka Ex.PW12/B and handed over the same to Duty Officer for registration of the case and that after registration of the case, Duty Officer handed over original rukka and computerized copy of FIR to ASI Raj Devi for further investigations of the case and that SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 10 of 29 11 he handed over the seizure memo of pullandas and all the pullandas to ASI Raj Devi. 23 The PW13, SI Leela Devi, deposed that on 16.11.2011 she was posted at PS Sultan Puri and that she was called by PW12 SI Karan Singh at PS Prashant Vihar and she reached there and took prosecutrix and her mother to BSA Hospital where she got the prosecutrix medically examined and that after medical examination, she obtained MLC of prosecutrix and one sexual assault kit sealed with seal of SD and one sample seal of SD from concerned doctor. She further deposed that thereafter they came back to PS Prashant Vihar and sexual assault kit and sample seal were handed over by her to PW12 SI Karan Singh.
24 The PW16, ASI Raj Devi, deposed that on 12.10.2011, Duty Officer handed over the computerized copy of FIR and original rukka to her for further investigations of the case and that PW12 SI Karan Singh also handed over two pullandas sealed with the seal of SD and seizure memo of pullandas to her. She further deposed that prosecutrix and her parents were also present in the PS and that she went with the mother of prosecutrix and Ct. Raj Rishi to Flat No.57, Vikas Sheel Apartment, Sector13, Rohini, where she met the Security Guard of the said Apartment, who told her that accused Sujeet Kumar used to do the work for washing the cars but he had not come in the Apartment since last 4 - 5 days and that thereafter she along with mother of prosecutrix and Ct. Raj Rishi reached at House No.40, Jatav Mauhala, Badli, where the wife of accused Sujeet Kumar met them and disclosed that the accused had gone to the house of his relative and was to return back after 4 - 5 days and that thereafter they came back to Flat No.57, Vikas Sheel Apartment and met the owner of the flat, who told them that SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 11 of 29 12 accused used to do work of washing the cars and that he had not seen him since last 4 - 5 days and that thereafter when they were going towards Badli to trace the accused, mother of prosecutrix pointed out towards the accused Sujeet Kumar and told her that he is the same person, who had abducted her daughter and committed wrong act with her and that PW16 and Ct. Raj Rishi overpowered the accused and made inquiry from accused and accused was arrested vide arrest memo Ex.PW4/A and personally searched vide personal search memo Ex.PW9/A and that accused made disclosure statement Ex.PW16/A. She then deposed that on her instructions, Ct. Raj Rishi took the accused to BSA Hospital for his medical examination while she (PW16) and mother of the prosecutrix came back to PS and that after some time, Ct. Raj Rishi returned to PS with accused, after his medical examination, and he handed over MLC of accused and one pullanda sealed with the seal of BSA Hospital to PW16, who took them into possession vide seizure memo Ex.PW16/B. 25 During her further examination, PW16 deposed that on 17.10.2011, she moved an application Ex.PW5/A for recording the statement of prosecutrix u/s.164 CrPC and got recorded the statement of prosecutrix and that she obtained the copy of statement of prosecutrix u/s.164 CrPC vide application Ex.PW5/D. She then deposed that she asked for proof of birth of prosecutrix but mother of prosecutrix could not produced the birth certificate of prosecutrix and so PW16 took the permission for getting the ossification test of prosecutrix conducted. She further deposed that later on she took the prosecutrix to BSA Hospital and got conducted the ossification test of the prosecutrix and obtained the report of medical examination for assessment of age Ex.PW7/A (also exhibited as Ex.PW14/A. SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 12 of 29 13 26 She further deposed that on 24.11.2011, on her instructions MHCM handed over the sealed pullandas of this case to Ct. Manoj Kumar for depositing the same in FSL Rohini and that Ct. Manoj Kumar deposited the same in FSL Rohini and handed over the receipt on RC, to MHCM. She then deposed that after completing investigations, she prepared the charge sheet and filed the same in the Court. 27 During her crossexamination, PW16 stated that she did not request any person from Apartment to join the proceedings nor did she ask the employer of mother of prosecutrix to join the proceedings. She further stated that no public person was joined in the proceedings when accused was arrested. She denied the suggestion that she did not conduct the proper and fair investigation of the case or that accused was falsely implicated in this case.
28 The PW9, Ct. Raj Rishi, had joined investigations in this case with IO on 16.10.2011 during the arrest of accused Sujeet Kumar and deposed regarding the same. 29 After closing of prosecution evidence, statement of accused Sujeet Kumar was recorded u/s 313 Cr.P.C. Accused stated that he is innocent and had been falsely implicated in the case. He further stated that at the time of incident, he had gone out of station with his employer on his car which was driven by him and that no such alleged incident had ever taken place and that he had himself gone to Police Station when she came to know that a case had been registered against him and that the family of prosecutrix was having enmical relation with him due to money matter. The accused SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 13 of 29 14 declined to lead evidence in his defence.
30 Arguments have been addressed by learned counsel for the accused as well as learned Additional PP for the State.
31 Learned Additional PP has contended that prosecutrix has fully supported the case of the prosecution and that prosecution has succeeded in proving its case against the accused beyond reasonable doubt by examining the material witnesses namely prosecutrix and her parents. It is stated that in view of the testimony of the prosecutrix no other evidence is required and has accordingly prayed that accused Sujeet Kumar be convicted u/s.363/376 IPC.
32 On the other hand, learned counsel for accused has contended that accused is innocent and has nothing to do with prosecutrix in the present case. It is stated that prosecutrix was major at the time of incident and had gone away with some other person and was recovered later on at Rohini Court by her parents. It is also stated that the medical evidence does not support findings of rape and this fact is also reflected from the fact that prosecutrix did not raise alarm while she was allegedly being taken away by the accused and thus accused is entitled to be acquitted of all charges in the present case and it is prayed accordingly.
33 I have heard the arguments put forward by ld. Addl. PP and learned counsel for the accused 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.
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34 In the present case prosecutrix is the only material witness put forth by the
prosecution. The prosecutrix is alleged to have been taken away by accused on
12.10.2011 and was brought back by him, to Delhi, on 15.10.2011 during which period he took her to Panipat and Haryana and also raped her against her wishes. The FIR was registered on 16.10.2011 at about 2:10 AM, on complaint Ex.PW2/A made by prosecutrix, wherein she stated as under : "Mein apne parivar ke sath rehti hu wah ghar par hi rehti hu ; meri mataji Vikassheel Apartment, H. No.57, Sector13, Rohini me bartan chowke ka kam karti hai ; me bhi kabhi kabhi apni mataji ke sath unka hath batwane unke sath jati thi ; jaha par Sujeet Kumar s/o Dal Chand r/o H.No.40A, Gaon Badli, Delhi, jo Driver ki naukari karta hai ; meri wah Sujeet Kumar ki apas me batchit wah hansi majak hota rehta tha ; wah ek din Sujee Kumar ne mujhe shadi ke liye kaha toh maine mana kar diya ; dinak 12.10.2011 ko Sujeet Kumar ne phir kaha me uske pas aa gahi ; Sujeet Kumar mujhe bus me bitha kar Panipat Haryana le gaya waha par Sujeet Kumar ne mujhe ek kamare me rakha wah rat ko mere mana karne par bhi mere sath zabardasti galakam kiya aur agle din mujhe Bus me bitha kar Haridwar le gaya ; jaha ek Dharamshala me kamra lekar mujhe rakha wah raat ko phir mere sath zabardasti galatkam kiya aur phir hum dono aaj Haridwar se bus me beth kar Delhi aagaye ; meri mataji ko SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 15 of 29 16 Sujeet Kumar ne phone karke bataya ki hum Rohini Court me aa gaye hai aur me prosecutrix se shadi karunga aur waha mujhe Rohini Court chhod kar chala gaya ; meri mataji waha aayi aur mujhe Rohini Court se Rajapur lekar aa gayi aur mujhe lekar thana Prashant Vihar aayi hai ; Sujeet Kumar mujhe behla phusla kar le gaya aur meri marji ke khilaf mere sath galatkam kiya hai uske khilaf kanooni karwahi ki jaye."
35 The statement of prosecutrix u/s.164 Ex.PW2/B was recorded on 17.10.2011, wherein she deposed as under : "Meri mummy Vikas Apartment me bartan chowke ka kaam karti hai ; mummy ki tabiyat thik nahi thi toh mummy ke sath mein kam karne chali gai ; yeh 12.10.2011 ki baat hai, waha par Sujeet Kumar aaya aur kaha mere sath pyar karegi toh maine mana kar diya, meri mummy uss samay kam kar rahi thi, mein waha akeli khadi thi ; Sujeet Kumar mujhe zabardasti auto me bitha kar Bye Pass le gaya, phir bus me bitha kar Panipat le gaya ; woh mujhe apni bua ke ghar le gaya ; waha par koi nahi tha ; usne mere sath zabardasti ki ; usne apne kapade wah mere kapde utar kar ganda kam kiya, phir agle din mujhe Haridwar le gaya ; waha par Dharamshall ka kamra liya, phir Dharamshala me bhi galatkam kiya ; 15.10.2011 ko mujhe Ghaziabad laya, phir Delhi le aaya ; usne mere papa mummy ko bhi phone kiya ; phir SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 16 of 29 17 papa mummy mujhe le gaye ; mein Sujeet ke khilaf karwahi chahti hu."
36 The prosecutrix was examined as PW2 before the Court and deposed as under : "I do not remember the exact date but I had gone with my mother for work. My mother is working in Apartment and due to illness, she was not able to go for work for two days so she asked me to accompany her for her help. Accused Sujit was working as Driver in the same Apartment. Accused Sujit saw me working with my mother. He told me that my father is calling me and took me with him. He took me to Panipat and committed wrong act "Galatkam" with me. "Usne mera muh band kar diya. Mere kapade uttare, mere se galatkam kar raha tha, mujhe chua nahi. Woh meri ijjat pe hath laga raha tha.' I was in pain and was screaming. I was crying for him to take me home. From Panipat accused Sujit took me to Haridwar. I do not know where he took me from Haridwar. After three days, he brought me to Delhi. Accused Sujit did Galatkam with me on three occasions.
Accused Sujit brought me to Court saying that he would marry me.
I met my parents in the Court. Accused Sujit ran away. I was
taken home and from there, my mother took me to PS. I gave my
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complaint. I am illiterate and had put my thumb impression on
complaint after it was read over to me by the Police officials. My complaint is Ex.PW2/A which bears my thumb impression at point "A". My mother's thumb impression was also taken on the complaint Ex.PW2/A at point "B". I was taken for my medical examination to Ambedkar Hospital."
37 The PW2 proved the carbon copy of her statement u/s.164 CrPC as Ex.PW2/B and identified the accused Sujeet as well as her Pyjami Ex.P1, which had been seized by the IO.
38 During the crossexamination of prosecutrix several improvements made by her in her testimony as PW2 were brought out in as much as she had not told in her statement Ex.PW2/A and statement u/s.164 CrPC Ex.PW2/B that accused Sujeet Kumar had taken her away by telling her that her father was calling her. Further she had not stated in her statement u/s.164 CrPC Ex.PW2/B that accused Sujeet Kumar had asked her to marry him. She also stated that she had not told her mother that accused Sujeet had asked her to marry him. The prosecutrix clarified that it was so as accused had said this to her after taking her away with him. She also deposed that she had raised alarm and abused accused at that time and that she had told her mother before leaving that accused had told her that her father was calling her. These facts were also not found in her statement Ex.PW2/A and Ex.PW2/B. 39 During her further crossexamination, prosecutrix stated that she had raised SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 18 of 29 19 alarm when accused made her sit in auto. She then stated that accused had made her to eat biscuit after sitting in auto and so she was not in a conscious state thereafter and that she regained consciousness at 10:00 PM at night when accused took her to a room at Panipat. These facts that accused had given prosecutrix biscuit to eat and her having regained consciousness at night, were also not mentioned in Ex.PW2/A and Ex.PW2/B. The prosecutrix was given a suggestion that since she claimed she was not conscious, she could not have seen means by which accused took her to bypass. The prosecutrix first termed it to be correct and immediately thereafter stated that she was little conscious in between and hence, she could see that accused had taken her in an auto to Bypass.
40 When questioned about raising alarm in the bus, prosecutrix stated that she had tried to raise alarm but accused had shut her mouth and that said bus was not crowded and there were only 2 / 3 persons in said bus, who did not see accused shutting her mouth. Prosecutrix could not state if there was a conductor in the said bus or not. She could also not state about place which they got down in Panipat. She further deposed that they went by Rickshaw from bus to the room and that she did not inform rickshaw puller that accused was taking her forcibly as she was not in a conscious state at that time.
41 The prosecutrix was questioned regarding the room at Panipat where she had been taken by accused. The prosecutrix stated that accused had taken said room from someone and that the room was locked when they reached there and that there were several other room in the building but she did not see other people in the building.
SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 19 of 29 20 She further stated that owner of building had met accused at the building but prosecutrix did not tell said person that accused had brought her there against her will and that she raised alarm, when accused was taking her to the said room.
42 During her further crossexamination, prosecutrix stated that they had left Panipat on the next day and that accused took her from Panipat to Haridwar in a bus and that she had raised alarm in the bus and that person, who heard her alarm told accused to take her home and that she did not ask said persons to take her to a police officer or to call police and that at Haridwar accused took her to Dharamshala where no other person was present. Prosecutrix could not tell how accused had arranged for said Dharamshala.
43 The prosecutrix further deposed that accused had brought her to Ghaziabad and then to Delhi. The fact that accused had brought prosecutrix to Ghaziabad was also not found mentioned in Ex.PW2/A and Ex.PW2/B. The prosecutrix also deposed that she did not remain in same clothes in which she had been taken by accused and wore new clothes which accused bought for her.
44 Specific questions were put to prosecutrix regarding her date of birth. Prosecutrix stated that her age was 13 years and she was stating it so as her parents had told her and that she did not have any document of her age. The prosecutrix denied the suggestion that she was deposing falsely against accused at instance of her father.
45 From the above mentioned statements and testimony of the prosecutrix, it is
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apparent that she has made continuous improvements and additions in her statements i.e. her complaint Ex.PW2/A, her statement u/s.164 CrPC Ex.PW2/B and her testimony before the Court as PW2. In her complaint Ex.PW2/A, prosecutrix stated that she knew accused from before and was on friendly terms with him and had been proposed for marriage by the accused but she does not state so in her subsequent statement. In Ex.PW2/A prosecutrix further stated that she had got enticed by the proposal of the accused and had thus accompanied him in bus to Panipat and then to Haridwar and that accused committed rape upon her against her wishes at both these places. She further states that accused then brought her back to Delhi to Rohini Courts and also informed her mother that he was going to marry her, however, he left her at Rohini Court and went away.
46 In her statement u/s.164 CrPC i.e. Ex.PW5/B, prosecutrix does not state anything about her knowing accused from before. She merely stated that on the day of incident, she had gone to help her mother with her work as her mother had not been keeping well and that on that day i.e. 12.10.2011 accused Sujeet Kumar came there and told her 'mere sath pyar karegi' but prosecutrix refused. At that time mother of prosecutrix was working while prosecutrix was standing alone and accused took her forcibly in an auto to Bypass from where he made her sit in a bus and took her to Panipat to his Bua's house and that nobody was present at his Bua's house and there accused forced himself upon her (raped her). On next day, he took her to Haridwar to a Dharamshala where again he committed wrong act with her. On 15.10.2011, accused brought prosecutrix back to Delhi and also informed her parents about it and the parents of prosecutrix came there and took her.
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47 In her statement as PW2 recorded on 01.06.2012 prosecutrix made further
improvements. Though she reiterated that on the day, she went missing she had
accompanied her mother, who had been ill, to help her in her work. She further stated that accused, who was working as driver in the same apartment, saw her working with her mother and told her that her father is calling her and took her with him. He took her to Panipat and committed wrong act (galatkam) with her. She further stated that she was in pain and was screaming and crying, asking accused to take her home. The accused took her to Haridwar from there. She stated that she did not know where he had taken her to in Haridwar and that after 3 days, he brought her back to Delhi to Court saying that he would marry her. The prosecutrix further stated that she had met her parents in the Court and that accused ran away from there and that she was taken home from there and then to PS by her mother. She identified her thumb impression on complaint Ex.PW2/A and on her statement u/s.164 CrPC Ex.PW2/B. 48 During her crossexamination the improvements made by prosecutrix over and above and her statements Ex.PW2/A and Ex.PW2/B were clearly brought out. The fact that accused had taken her by telling her that her father was calling was not found mentioned either in Ex.PW2/A or Ex.PW2/B. She also stated that she had not told her mother that accused had asked her to marry him. The prosecutrix explained stating that it was so as accused had asked her to marry him after taking her away with him. She further stated that she had raised alarm and abused the accused when he was taking her away and that she had also told her mother before leaving that accused had told her that her father was calling her. The prosecutrix admitted that she had not told SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 22 of 29 23 the fact that she had told her mother before leaving that accused had told her that her father was calling in her statement u/s.161 CrPC or in her statement u/s.164 Cr4PC. During her further crossexamination, prosecutrix stated that accused gave her biscuit to eat after sitting in an auto and thereafter she was not in a conscious state and that she regained her consciousness when accused took her in a room at Panipat at 10:00 AM. The prosecutrix improved upon her statement further to state that she could see that accused was taking her in an auto to Byepass and thereafter in bus to Panipat as she was little conscious in between. As regards the alarm, prosecutrix stated that she had tried to raise alarm in the bus but accused had shut her mouth and that there were only 2
- 3 persons in said bus, who had not seen accused shutting her mouth. The prosecutrix could not state that if there was any conductor in the bus or not. She further stated that from the bus stand, they had gone to the room in Panipat in a rickshaw and that she had not told the rickshaw puller that accused was taking her forcibly. She stated that it was so as she was not in conscious state of mind. The prosecutrix further stated that the owner of building met accused at Panipat and that she had not told the said person that accused had brought her forcibly against her will. She, however, stated that she had raised alarm when accused was taking her in a room in the building and that there was no window in the room. As regards further journey to Haridwar, prosecutrix stated that accused had taken her from Panipat to Haridwar in a bus and that she had raised alarm and that the person, who heard her alarm and told accused to take her home. The prosecutrix admitted that she did not ask the said person to take her to PS or to call police. Prosecutrix could also not tell the name of Dharamshala or how accused had arranged the room therein. The prosecutrix could not tell the date when they returned to Delhi from Ghaziabad station. From further crossexamination of prosecutrix, it is SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 23 of 29 24 brought out that accused had bought new clothes for her and that she was wearing the said clothes when she was apprehended. The prosecutrix denied that she had made false complaint against the accused at the instance of her parents or that accused had neither abducted her nor committed rape upon her.
49 It is apparent that prosecutrix has made definite improvements in her statements. Whereas in Ex.PW2/A she states that accused was known to her and had proposed to her that she got enticed to go with him on 12.10.2011 ; in her statement Ex.PW2/B, she stated that accused had forcibly made her sit in an auto when he took her to byepass and from there in a bus to Panipat to his bua's house where he forcibly raped her and then he took her to Haridwar. In her statement as PW2, prosecutrix stated that accused had enticed her away on the pretext that her father was calling her and that she had informed her mother before leaving that accused had told her that father was calling her. She also added that accused had given her a biscuit to eat because of which she lost her consciousness and then when questioned as to how she could tell the mode of transport by which she had been taken to Panipat by the accused, prosecutrix stated that she was having little consciousness in between and so she had noticed. She also made an attempt to state that she had raised alarm to attract attention of people but none had helped her. Considering the improvements made by the prosecutrix, it was necessary that her testimony be corroborated on material particulars by that of independent person. In the present case, prosecution has examined PW1 Badri Khan, father of prosecutrix, PW4 Smt. Inama, mother of prosecutrix, to corroborate testimony of prosecutrix, however, these two witnesses have given a different version about the manner in which prosecutrix went missing from her house.
SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 24 of 29 25 Whereas from the statements of the prosecutrix it appears that she was taken away by accused from the gate of the apartment where her mother was working, the parents of prosecutrix stated that prosecutrix had accompanied her mother to the place of work, however, she returned back home where PW1 Badri Khan was present and was cooking food for them and told him that she was not feeling well and that on her request, PW1 Badri Khan took prosecutrix to a doctor, who prescribed certain medicines and thereafter PW1 told prosecutrix to go home while he brought medicines for her and when she reached home after purchasing medicines, he did not find her and on inquiry came to know that one person had taken away his daughter. He further stated that his wife told him that person named by Surjeet Kumar, driver, who used to roam around the area, was suspected for missing of their daughter and so they conducted inquiry from his elder brother, who was also working as a driver and on the day prosecutrix returned i.e. 15.10.2011 brother of accused informed them and on this information they reached Rohini Court.
50 Thus there is a major discrepancy in the prosecution case whether the prosecutrix went missing from the apartment, where she and her mother had gone for work, or from the house of the prosecutrix, after she returned back home. From the statement of PW16 IO ASI Raj Devi, it is brought out that there was a security guard at Vikas Sheel Apartment where mother of prosecutrix used to work. If the prosecutrix was taken away from outside the apartment, as stated by the prosecutrix, then it is surprising that nobody outside the apartment, including the security guard, saw accused taking her away or heard the alarm raised by the prosecutrix. Even otherwise the fact that accused had taken away prosecutrix forcibly was introduced by her in her statement before the SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 25 of 29 26 Court as PW2 only. On the other hand if the version given by parents of prosecutrix is to be believed and the persons from the locality where prosecutrix was residing had seen her going away with someone, then it is again surprising why prosecutrix did not raise alarm if she was taken forcibly. It is noteworthy that the medical evidence and the FSL result on record do not corroborate the testimony of the prosecutrix. 51 Moreover IO has recorded disclosure statement of accused vide Ex.PW16/A wherein it is claimed that accused admitted having enticed away prosecutrix. As per the case of the prosecution, accused admitted having taking the prosecutrix to Panipat and Haridwar in the said disclosure statement despite this no effort was made by the IO to trace out the places to which accused had taken the prosecutrix and to find out whether accused had actually taken to prosecutrix to said places or not and to examine the relevant witnesses i.e. the person to whom the room at Panipat belonged and the Dharamshala at Panipat where accused is alleged to have taken the prosecutrix. Moreover the discrepancy in the statement of prosecutrix regarding the place where accused had taken her also does not stand explained by the prosecution. Whereas in her complaint Ex.PW2/A and her testimony as PW2 prosecutrix has stated that she was taken to a room in Panipat, in her statement u/s.164 CrPC i.e. Ex.PW2/B has stated that accused had taken her to house of his Bua. The discrepancies brought out in the statements of the prosecutrix i.e. her complaint Ex.PW2/A, her statement u/s. 164 CrPC Ex.PW2/B and her testimony as PW2, and attempt by prosecutrix to improve her version, make her testimony unbelievable and this coupled with lack of corroboration of her testimony from testimony of her parents and other medical and forensic evidence on record make the prosecution case tainted.
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52 It is a settled legal proposition that once the statement of prosecutrix inspires
confidence and is accepted by the Court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration of the same is required unless there are compelling reasons which necessitate the Court 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 after the crime and 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 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.
53 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 and this coupled with absence of injuries on her person or side effects of the alleged intoxicant administered to her by the accused and and discrepancy in her testimony and that of her SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 27 of 29 28 parents 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.
54 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."
55 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 its totality, the story projected by the prosecutrix was so improbable that it could not be believed."
56 The nutshell of foregoing discussion is that from the testimony of the prosecutrix as well as other material placed on record, the prosecution has failed to prove that accused Sujeet Kumar had kidnapped prosecutrix on 12.10.2011 out of lawful guardian of her parents or that he had committed rape upon prosecutrix without her consent and against her wishes in respect of the commission of the said offence.
SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 28 of 29 29 Accordingly, I acquit accused Sujeet Kumar of the charged offences u/s. 363/376 IPC giving him benefit of doubt.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 15.04.2013) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
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FIR No. 457/11
P.S. Prashant Vihar
12.04.2013
Present: Ld. Addl. PP for the State.
Accused Sujeet Kumar on bail with counsel Ms. Bindiya Malhotra. Arguments heard.
Be listed for judgment on 15.04.2013.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 12.04.2013 15.04.2013 Present: Ld. Addl. PP for the State.
Accused Sujeet Kumar on bail with counsel Ms. Bindiya Malhotra. Vide separate judgment, announced today in the open Court, accused Sujeet Kumar has been acquitted of the charged offence.
Accused Sujeet Kumar requests that his previously furnished bail bond may be accepted in compliance of Section 437A Cr.PC. Request allowed. Accordingly, previous bail bond of the accused Sujeet Kumar is extended for a period of six months from today in terms of Section 437A CrPC.
File be consigned to Record Room.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 15.04.2013 SC No. 18/12 State Vs. Sujeet Kumar Page Nos. 30 of 29