Delhi District Court
State vs Gokul Kumar Jha//Fir No.160/09 on 20 July, 2011
:1:
THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - 01,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
SC No. 163/2009
FIR No. 160/2009
PS : Keshav Puram
U/s. 363/366/376 IPC
STATE
VERSUS
Gokul Kumar Jha
S/o. Sh. Mohan Jha
R/o. Village-Atariya
PS Basu Patti,
District Madhubani, Bihar.
Date of Institution : 15.10.2009
Date of receipt of case in this court : 15.10.2009
Arguments heard On : 19.07.2011
Order Announced On : 20.07.2011
SHRI P.K. VERMA, ADDL. PP FOR THE STATE
MS. SADHNA BHATIA, AMICUS CURIAE FOR THE
ACCUSED
JUDGMENT
STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :2:
1. The name of the prosecutrix / victim in this judgment is not mentioned as per decision of Hon'ble Supreme Court in the cases of State of Karnataka Vs. Puttraja (2004 (1) SCC 475) and Om Prakash Vs. State of Uttar Pradesh 2006 CLJ 2913.
2. In brief the facts of the case are that on 14.06.09 on receipt of DD No. 23B, SI Narender Singh along with Ct. Jitender reached the spot i.e. H. No. 349, Harijan Basti, Rampura, Delhi where one Ashu Kumar met him and got his statement recorded regarding the missing of her 15½ years old sister Prosecutrix S. After recording statement of Ashu Kumar, SI Narender Kumar prepared rukka and sent Ct. Jitender for registration of the case. During investigation wireless message was flashed.
3. Thereafter investigation of the case was handed over to ASI Hafizur Rahman and accordingly he filled the missing person form, publication in newspaper and hue and cry notice was published. On 25.07.09 prosecutrix S and accused were arrested from Surajkund, Faridabad on the STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :3: pointing out of mother of prosecutrix Husna Devi. Accused was accordingly arrested. Accused as well as prosecutrix S were sent for medical examination at BJRM hospital. Exhibits collected in this case were seized and sent to FSL for analysis. Statement of prosecutrix U/s 164 CrPC was recorded by the Ld. MM concerned. After recording of her statement u/s 164 CrPC Section 376 IPC was added. Statement of witnesses were recorded. After completion of investigation charge sheet u/s 363/366/376 IPC against the accused was filed before the court through SHO.
4. Ld. MM after compliance of section 207 CrPC committed the case to the court of Sessions.
5. Vide order dated 17.02.10 charge was framed under section 363, 366 and 376 IPC against the accused to which he pleaded not guilty and claimed trial.
6. Prosecution in support of its case examined PW1 Ashu Kumar, PW2 Prosecutrix S, PW3 Smt. Husna Devi, PW4 Dr. Shakuntala Rani, PW5 V. Shankar Narayanan, PW6 Vijay STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :4: Kumar, PW7 ASI Ilam Singh, PW8 Ct. Jagdish, PW9 W/Ct. Sunita, PW10 HC Jai Prakash, PW11 CH Banwari Lal, PW12 SI Narender Singh, PW13 Gulshan, PW14 Sh. Neeraj Gaur, PW15 DHG Dolly and PW16 ASI Hafizur Rehman.
7. As per statement of Addl. PP for State Sh.P.K.Verma, prosecution evidence was closed on 02.05.2011.
8. Statement of accused was recorded under section 313 Cr.P.C. Accused pleaded innocence and wished to examine defence witness. Later on accused did not examine any witness in his defence and closed the defence evidence.
9. I have heard ld. Addl. PP for state Sh. P.K. Verma and ld. Amicus Curiae Ms. Sadhna Bhatia for accused and perused the record.
10. PW1 Ashu Kumar, brother of prosecutrix S, has deposed that he is resident of Harijan Basti, Rampura and doing a job of security guard. He has testified that on 08.06.09 at about 6-7 pm her sister, prosecutrix S, who was STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :5: studying in 9th class in Sarvodaya Vidyalaya at that time, went to her friend's house and did not return. They waited for two days and thereafter lodged FIR on 10/11.06.09. He has further testified that accused Gokulused to live on rent in his neighbourhood and he cast suspicion on him because he also was not available at his house since 08.06.09 and he also used to see his sister with evil eyes. His statement Ex. PW1/A was recorded by the police.
11. In his cross examination, he has stated it as correct that his FIR was not registered on 10.06.09 but was registered on 14.06.09. He denied the suggestion that his sister prosecutrix S was a major at the time of incident and she voluntarily left the house after telling the facts to his family members.
12. PW2 Prosecutrix S has deposed that she knew accused as he was residing near her house. She has testified that one day when she had gone to the house of her friend to taking books accused met her on the way as he wanted to talk to her but when she refused to talk to him, accused STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :6: threatened her that if she does not listen to her then he will destroy her life as her father was not alive and so her family could not harm him in any manner. She has stated that at that time she was 15 years of age. On the threat of accused the he will kill her brother, she accompanied him to Gujrat on 08.06.09.
13. She has further testified that accused took her to a temple in Dadar Haveli Nagar, Silwasa, Gujrat and married her. Thereafter the accused took her to a rented premises and resided with her as husband and wife and also established physical relations. One day when accused left his mobile at home, she called her mama who advised her to come to Delhi and thereafter she talked to her mother also.
14. PW2 Prosecutrix S has further testified that on 25.07.09 she along with accused came to Surajkund, and made call to her mother and mama. Police along with her brother reached there and accused was arrested. She has further deposed that thereafter she was taken to police station and from there to hospital for medical examination STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :7: but she refused to get herself medically examined. Thereafter she was produced before the court where her statement u/s 164 CrPC Ex. PW2/A was recorded by the Ld. MM. She has then testified that she was medically examined on 26.07.09.
15. In her cross examination PW2 Prosecutrix S was confronted with her statement that she had told the police that accused met her on the way as wanted to talk to her and when she refused he threatened that he will destroy her life and as her father was not alive, her family cannot harm him and that upon asking her to accompany to Gujarat he threatened to kill her brother. She was further confronted on the point that when accused left his mobile in room then she made a call to her mother. She was further confronted on the aspect that she had told the police that accused forcible made physical relations with her. She denied the suggestion of Ld. Defence Counsel that she was in love with accused. She has stated in her cross examination that she did not raise any alarm or told to any body i.e. auto driver, at the platform, in the train compartment that accused was taking STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :8: her forcibly to Gujarat. She denied all the suggestions put to her by the Ld. Defence Counsel.
16. PW3 Smt. Husna Devi, the mother of prosecutrix S, has deposed that she is a household lady having four children. On 08.06.09 at about 5.00 pm her daughter Prosecutrix X went missing and her elder son Ashu got the FIR registered regarding the missing of her daughter. She has further deposed that she also had suspicion on accused Gokul because he was also not present in his room since that day. They also inquired from her daughters friend Monika but no clue was found.
17. She has further deposed that one day prosecutrix S made a telephone call on the mobile of her brother and he arranged her talks with her daughter wherein she told her daughter to come back and she agreed for the same. On 25.07.09 her daughter i.e. prosecutrix S made a call that she had returned with accused Gokul in Delhi and were present at Surajkund near PS Haryana. Thereupon they reached Surajkund with the police party and apprehended accused STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :9: and he was arrested and her daughter prosecutrix S was also recovered. Statement of prosecutrix S was also recorded. Accused was arrested vide memo Ex. PW3/A and his personal search was taken vide memo Ex. PW 3/B. Recovery memo of prosecutrix S Ex. PW3/C was also prepared. She has deposed that on 25.07.09 her daughter was taken to BJRM hospital for examination but at that time she refused to get herself medically examined due to shyness but on 26.07.09 her medical examination was conducted.
18. In her cross examination by Ld. Defence Counsel, she was confronted with her statement Ex. PW3/DA on the aspect that she had told the police that prosecutrix S made a telephonic call to the phone of her brother. She denied the suggestion of Ld. Defence Counsel that she got wrong date of birth of prosecutrix recorded in her birth certificate and the school or that prosecutrix was having affair with accused and she went with him out of her own consent or that she did not agree to the marriage of prosecutrix with accused as accused belong to different caste or that due to this reason she has accused has been falsely implicated in this case by her. She STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :10: further denied the suggestion of Ld. Defence Counsel that her brother never received any call from prosecutrix or that she has deposed falsely being mother of prosecutrix or that she had the knowledge about the affair of her daughter i.e. prosecutrix and accused.
19. Prosecution in support of its case also examined PW-4, Dr. Shakuntala Rani from BJRM Hospital who proved the MLC of prosecutrix S Ex.PW2/C prepared by Dr. Anjali Vaish who has since left the services of the Hospital. She also proved the endorsement made by Dr. Anjali from point Z to Z on Ex.PW2/C. PW4, Dr. Shakuntala Rani also proved the MLC of accused Gokul Kumar Jha Ex. PW4/A prepared by Dr. Vijay, JR. In her cross examination by Ld. Defence Counsel, she admitted as correct that she did not have any personal knowledge about this case and that both these MLCs were not prepared in her presence.
20. PW5, V. Shankarnarayanan, Sr. Scientific Assitant ( Biology), FSL, Rohini proved the biological report prepared by him Ex. PW5/A in this case. He also proved the serological STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :11: report prepared by Ex.PW5/B. In his cross examination by the Ld. Defence Counsel he denied that he prepared the reports in mechanical manner.
21. PW6, Vijay Kumar is the landlord of the premises where accused used to reside before the incident of the present case. He has deposed that accused was residing as tenant from May,2009 to June,2009 and on 08.06.2009 he took all his articles from the room and ran away. He further deposed that one girl who was residing in his neighbourhood alos went missing on the same day. In his cross examination by the Ld. Defence counsel, he stated that mother of prosecutrix told him that accused had run away from the tenanted premises with her daughter. He denied all the suggestions put to him by the Ld. Defence counsel.
22. PW7, ASI Ilam Singh proved the FIR of this case Ex.PW7/A which was recorded by him on 14.06.09 while being posted as duty officer at Police Station Keshav Puram. He also proved the endorsement made by him on rukka Ex. PW7/B which was sent by SI Narender Singh through Ct.
STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :12: Jitender. In his cross examination he denied that he did not receive any rukka or the FIR is ante time or ante dated.
23. PW8, Ct. Jagdish has deposed that on 25.07.09 he joined the investigation of this case and on that day he along with ASI Hafizur Rehman, W/Ct. Sunita and PW3, Smt. Husna Devi went to Suraj Kund from where at the instance of PW3, accused Gokul and prosecutrix S were apprehended from a park. Investigation Officer prepared recovery memo of the prosecutrix Ex.PW3/C. He also proved the arrest of accused vide memo Ex. PW3/A and his personal search was also conducted vide memo Ex. PW3/B. Accused and prosecutrix were brought to Delhi and were medically examined. After the medical examination of accused, doctor handed over sealed parcels which was seized vide memo Ex. PW8/A.
24. In his cross examination by Ld. Defence counsel he stated that accused and prosecutrix did not try to run away from the park on seeing them. He further stated that Investigation Officer did the entire writing work while sitting in the park. He denied the suggestion that he never joined STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :13: the investigation of this case or that he signed the memos while sitting in the Police Station.
25. PW9, W/Ct. Sunita has fully corroborated the version given by PW8, Ct. Jagdish. She also proved the recovery of prosecutrix and arrest of accused from Suraj Kund. She deposed that prosecutrix was taken for medical examination in her custody. In her cross examination by Ld. Defence counsel she deposed that no public persons were present in the park when prosecutrix and accused were apprehended. She also denied all the suggestions put to her by Ld. Defence counsel.
26. PW10, HC Jai Prakash who was posted as MHCM at Police Station Keshav Puram has proved the entries made by him Ex.PW10/A, Ex.PW10/B and Ex.PW10/C. He denied the suggestion of Ld. Defence counsel that all the entries were manipulated by him at the instance to Investigation Officer. PW11, HC Banwari Lal deposed that he deposited the exhibits of this case in FSL.
STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :14:
27. PW12, SI Narender Singh has deposed that on 14.06.09 he received DD no. 23B in respect of kidnapping and he alongwith Ct. Jitender reached at house no. 349, Haijan Basti, Rampura, Delhi and recorded statement of complainant PW1, Ashu Kumar EX. PW1/A which was in respect of missing of his sister. He cast suspicion of kidnapping on accused Gokul. Thereupon he prepared rukka Ex, PW12/A and got the FIR of this case registered. He further deposed that he tried to search prosecutrix S and accused Gokul but they could not be traced. In his cross examination by Ld. Defence counsel he stated that during investigation he went to house where accused used to reside. He denied all the suggestions put to him by the Ld. Defence Counsel.
28. PW13 Gulshan, proved entry Ex. Pw13/A made in respect of birth of female child at house no.349, Ram Pura, Harijan Basti, Delhi. In his cross examination by Ld. Defence Counsel he denied the suggestion that date of birth of female child wrongly furnished by the father of female child.
STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :15:
29. PW14 Sh. Neeraj Gaur, MM, Rohini Courts, proved the statement of prosecutrix S recorded by him Ex. PW2/A u/s 164 CrPC on 27.07.09. He further proved the certificate issued by him in this respect Ex. PW14/B and also proved the entire proceedings u/s 164 CrPC Ex. PW14/C. He also deposed that copy of proceedings u/s 164 CrPC was supplied to investigation officer vide order Ex. PW14/D.
30. PW15 DHG Ct. Dolly has deposed that on 26.07.09 she joined the investigation of this case and on that day she along with ASI H. Rahman produced prosecutrix Saroj before the court. She proved the seizure of sealed parcels vide Ex. PW15/A given by doctor after medical examination of prosecutrix S.
31. PW16 ASI Hafizur Rehman, the Investigation Officer of this case has deposed that on 21.06.09 investigation of this case was transferred to him. On 25.07.09, he along with PW3 Smt. Husna Devi, PW8 Ct. Jagdish and PW9 W/Ct. Sunita went to Suraj Kund and at the instance of Smt. Husna Devi, accused Gokul and prosecutrix STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :16: S were apprehended from a park. Accused was arrested vide memo Ex. PW3/A and his personal search was conducted vide memo Ex. PW3/B. Recovery memo in respect of prosecutrix S Ex. PW3/C was also prepared and accused and prosecutrix were brought to Delhi and accused was got medically examined only as prosecutrix refused for her medical examination. On 26.07.2009, prosecutrix was medically examined and was sent to Nari Niketan. On 27.07.2009, statement of prosecutrix S Ex.PW16/A u/s 164 Cr.P.C. was recorded. Case property was deposited in FSL, Rohini for examination. During investigation he collected the copy Birth certificate of prosecutrix Mark PW16/C. After completion of investigation, charge sheet was filed before the Court.
32. In his cross examination by Ld. Defence councel, he has stated that he did not get the bone age determination test of prosecutrix S done from any hospital. He admitted that at the time of arrest of accused he did not join any public person outside the family of prosecutrix S. He denied the suggestion that he did not collect the marriage proof of STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :17: accused with prosecutrix from Gujarat deliberately or that prosecutrix expressed her willingness to go with accused or that he did not seize any love letter or joint photo of accused and prosecutrix or that accused has been falsely implicated in this case at the instance of family members of prosecutrix S.
33. I have heard Ld. APP for the State as well as Ld. Amicus Curiae for accused and have perused the record. The star witness of prosecution in this case is admittedly PW2 Prosecutrix S. The testimony of PW2 Prosecutrix S has been discussed in detail hereinabove. Perusal of the statement given by prosecutrix S in the court reveals that she accompanied accused to Gujarat on 08.06.09 under his threat that he will destroy her family and would kill her brother and thereafter she got married with accused and he established physical relations with her forcibly.
34. However, perusal of statement of prosecutrix S recorded u/s 164 CrPC given by her before the Ld. MM reveals an entirely different story. In her statement made STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :18: before the Ld. MM u/s 164 CrPC she stated that she knew accused Gokul and was in love with her. She further stated in statement u/s 164 CrPC that she left with accused to Gujarat on her own and got married with him and had physical relations. She specifically stated before the Ld. MM that accused Gokul did not entice her and she accompanied accused out of her own free will.
35. Perusal of testimony of Prosecutrix S shows that the statement made by her before the Ld. MM u/s 164 CrPC is entirely contradictory to the deposition made by her before the court. In the court she alleged that she had no prior relations or knowledge or contact with the accused and suddenly one day he threatened her and took her to Gujarat. While deposing before the court, she introduced a new fact regarding her friend Monika that she used to talk to accused through Monika as she acted as a messenger between her and accused. She testified before the court that she went to Gujarat by boarding a three wheeler to railway station and from there they took a train. The reason that while travelling in the three wheeler or at the railway station or in the train, STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :19: she did not raise any alarm or sought help of any public person that accused was taking her forcibly has not been explained by her.
36. In her cross examination by Ld. Defence Counsel she was confronted with her statement Ex. PW2/DA on the aspect that accused extended threat to her and forcibly took her to Gujarat. She made material improvement in her testimony and was again confronted with her statement Ex. PW2/DA on the point that she had stated to the police in her statement that when accused left his mobile in room then she made a call to her mother. She was also confronted that she stated to the police that accused forcibly made physical relations with her.
37. In her cross examination she admitted that she did not disclose to auto driver that accused had threatened her and was forcibly taking her to Gujarat. She further admitted that she remained at platform at railway station for about 5-6 hours and there were so many persons present STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :20: there but she did not disclose anything to anybody. The reason for not doing so is best known to her. She further stated in cross examination that she never married to accused while in her statement before the Ld. MM u/s 164 CrPC, she specifically stated that she married accused and established physical relations with him.
38. Perusal of MLC of prosecutrix S, Ex. 2/C shows that when prosecutrix S was brought to hospital for her medical examination, initially she refused for the same but on the next day she agreed. This behaviour and conduct of the prosecutrix creates doubt that if the incident of rape and kidnapping had happened with her, why she refused for medical examination.
39. In view of the above discussion when the prosecutrix S has given two entirely contradictory statements wherein on one hand while deposing before Ld. MM u/s 164 CrPC she stated that she married and had physical relations with the accused on her own and on the other hand while testifying before the court she stated that she never married STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :21: the accused and accused had forcible physical relations with her, creates doubt on the version given by prosecutrix.
40. It is worth to mention here that at the time of recovery of prosecutrix S and arrest of accused from Surajkund, Haryana, no public person was joined in the proceedings by the investigation officer. Whether the police team made any departure entry at PS Keshav Puram before leaving for recovery of prosecutrix S or made arrival entry at police station Surajkund Haryana, has also not been brought on record. Another important aspect which has come on record is that prosecutrix S went missing on 08.06.09 and complaint before police was lodged on 14.06.09. Delay in lodging the FIR in this case has not been explained by parents of prosecutrix S.
41. The prosecution has brought on record photocopy of Special Certificate of Birth issued by GNCT of Delhi in which name of prosecutrix S is mentioned. The same is not admissible as it has been marked and not proved by producing original record, hence cannot be read in evidence.
STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :22: The said certificate mentions the name of prosecutrix on it whereas as per normal practice name of child is not mentioned on the birth certificate and only name of parents of child appear on the same.
42. PW13 Gulshan, Sub-Registrar MCD has furnished on record the entry pertaining to birth of a girl child to Nihal Singh and Husan Wati and the same is Ex. PW13/A. The entry proved by PW13 creates doubt that it belongs to prosecutrix S. The age of prosecutrix S is not established beyond reasonable doubt as 27.12.1993. There is a possibility that age of prosecutrix S may be more than 18 years on the date of incident. The investigation officer did not did not collect any document which could prove the age of prosecutrix S as less than 18 years. Even no school record has been collected and brought on record by the investigation officer in order to prove the age of prosecutrix S. In order to determine the age, no bone age determination X-ray of prosecutrix S was got done by the investigation officer.
STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :23:
43. The prosecution further, did not make any effort to collect the details of the telephone call made by prosecutrix from Gujarat to her mother. No evidence has been collected by the investigation officer that accused and prosecutrix S went to Gujarat and resided in a rented premises. Evidence regarding the residence of accused and prosecutrix at Gujarat i.e. statement of their landlord or their neighbour at Gujarat, has not been collected by the investigation officer for the reasons best known to him.
44. Hence, in view of the above discussed circumstances, the probability which appears in my mind is that the accused had infatuation towards the girl and was a tenant in the locality and as the parents of prosecutrix were annoyed with the relation of their daughter with the accused, they lodged this complaint against the accused. Resultantly, where the prosecutrix S has made two entirely contradictory statements regarding the entire incident, her hesitation in getting herself medically examined and when no steps have been taken by investigation officer to bring the proof of date of birth of prosecutrix S as well as in absence of non STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC :24: collection of crucial call details made by prosecutrix S to her mother, the entire prosecution story becomes doubtful on the basis of contradictory statements of prosecutrix S and deficient investigation wherein all crucial evidence has not been collected.
45. In these circumstances, where prosecution has failed to prove its case beyond reasonable doubt, against the accused, benefit of doubt is given to the accused and he is acquitted of the charges framed against him in this case. File be consigned to record room after necessary compliance of Section 437-A CrPC.
Announced in the open court (SANJAY KUMAR) today i.e. 20.07.2011 ASJ-01 (NW),ROHINI COURTS: DELHI STATE VS GOKUL KUMAR JHA//FIR NO.160/09 PS KESHAV PURAM ;; U/S 363/366/376 IPC