Delhi District Court
State vs . 1. Pappu on 31 March, 2015
1
FIR No. 290/11
PS - Kanjhawala
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 187/13
Unique ID No. : 02404R0367542012
State Vs. 1. Pappu
S/o Shri Chandan Singh,
R/o VPO Sikhtara,
District Hathras, U.P..
2. Wazir
S/o Shri Jagdish
R/o VPO Panchi Jatan,
District - Sonepat, Haryana.
3. Pinki @ Lala @ Bunty
S/o Sh. Om Prakash
R/o VPO Sikhtara,
PS - Hasayan,
District - Hathras, U.P.
FIR No. : 290/11
Police Station : Kanjhawala
Under Sections : 366/368/376/354/34 IPC
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FIR No. 290/11
PS - Kanjhawala
Date of committal to session Court : 13/02/2013
Date on which judgment reserved : 30/03/2015
Date on which judgment announced : 31/03/2015
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : On 21/12/2012 on receipt of DD No. 39B, SI Parmod Kumar with Constable Bir Singh for inquiry reached in the area of Village Qutub Garh where prosecutrix (name withheld being a case u/s 376 IPC), D/o Narad, R/o VPO Unknown met and told about the incident which had taken place with her. She was brought to the Police Station and W/Constable Prem Lata and NGO Smt. Anuradha was called. Counseling of the prosecutrix was got done from the NGO. Prosecutrix made the statement to the effect that, she is the resident of Nepal and she does not know the particulars of her village and post office. She came to Delhi with an unknown person, who had left her in Delhi in an unknown 2 of 39 3 FIR No. 290/11 PS - Kanjhawala kothi with a lady as a maid servant. That lady used to snub her even after doing the work (Jo Mujhe Kaam Karne Par Bhi Dant Ti Thi), she of her own after fleeing from there had come to Old Delhi Railway Station, where one person named Bobby met her who took her with him to Hathras, where he without her consent married with her and established physical relations and he kept her with him for about 1½ to 2 years and one Bunty S/o Om Prakash, R/o VPO Sikhtara, District Hathras, U.P. used to visit him (Bobby). About 45 months ago, Bobby had sent her to Delhi with Bunty, where uncle (Chacha) of Bunty, Pappu S/o Chandan Singh, Village Qutubgarh, Delhi, met in Delhi. Both Bunty and Pappu in collusion forcibly got her marriage done in a Mandir without her consent, with Wazir S/o Jagdish R/o Pur Panchi, Sonipat, who (Wazir) took her with him to his village Panchi and forcibly made physical relations with her and about 45 days ago, Wazir left her at the house of said Pappu at Village Qutubgarh. Today, (21/12/2011) on finding an opportunity she made the call at No. 100. Bobby and Wazir performed the marriage and made physical relations with her without her consent and Wazir kept her concealed in his house for about 45 months. Legal action be taken against the above said persons. Thereafter, medical 3 of 39 4 FIR No. 290/11 PS - Kanjhawala examination of the prosecutrix was got conducted from the SGM Hospital, Mangol Puri vide MLC No. 19841 and the prosecutrix refused to admit and for her internal medical examination. On the basis of the statement, on the inspection of the MLC and from the circumstances, finding that offences u/s 366/368/376/34 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by SI Pramod Kumar. During the course of investigation, statement of the prosecutrix was got recorded u/s 164 Cr.P.C. and the prosecutrix was sent to the Nari Niketan. Statements of the witnesses were recorded. Since prosecutrix in the FIR had stated that she with her consent had gone with accused Bobby and had stayed with him, the search for the remaining accused Pappu, Pinki @ Lala @ Bunty and Wazir was made. Accused Pappu and Pinki @ Lala @ Bunty were arrested. Accused Wazir had obtained the anticipatory bail from the Sessions Court who was formally arrested in the case. Section 354 IPC was added against accused Pappu in the case.
Upon completion of the necessary further investigation challan for the offences u/s 366/368/376/354/34 IPC was prepared against accused Pappu, Pinki @ Lala @ Bunty and Wazir and was sent to 4 of 39 5 FIR No. 290/11 PS - Kanjhawala the Court for trial.
2. Since the offences u/s 366/376 IPC are exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under section 366/368/34 IPC against accused Pappu, Pinki @ Lala @ Bunty and Wazir and a case u/s 376 IPC against accused Wazir was made out. The charge was framed accordingly, which was read over and explained to the accused to which they pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 11 witnesses. PW1 - W/Constable Seema, PW2 - W/Constable Prem Lata, PW3 - HC Sanjeet, PW4 - Dr. M. Das, CMO, SGM Hospital, Delhi, PW5 - Constable Rajender, PW6 - Constable Bhisham Kumar, PW7 - Constable Bijender, PW8 - Dr. Supriya, SR 5 of 39 6 FIR No. 290/11 PS - Kanjhawala Gynae, SGM Hospital, Delhi, PW9 - Prosecutrix (name withheld), PW10 - SI Parmod Kumar and PW11 - Sh. Dheeraj Mor, Learned MM, Saket, New Delhi.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - W/Constable Seema, who deposed that on 22/12/2011, she was posted as Constable at PS Kanjhawala. On that day, she alongwith IO SI Pramod and Constable Ashish took accused Pappu, present in the Court (correctly identified) and complainant/prosecutrix (name withheld) D/o Sh. Narad in Rohini Court where accused Pappu was produced before the Learned MM and three days PC remand was taken. IO got recorded statement of complainant/prosecutrix (name withheld) u/s 164 Cr.P.C. and thereafter she was ordered to be sent in Nari Niketan Nirmal Chhaya. Complainant/prosecutrix (name withheld) was sent to Nari Niketan. Accused Pappu was brought to Police Station after the medical examination and was sent to Police lockup.
6 of 39 7 FIR No. 290/11 PS - Kanjhawala PW2 - W/Constable Prem Lata, who deposed that on 21/12/2011, she was posted as Constable at PS Kanjhawala. On that day, IO SI Pramod made enquiries from complainant/prosecutrix (name withheld) in the presence of NGO and herself. IO recorded statement of prosecutrix (name withheld). Thereafter, she alongwith IO SI Pramod and Constable Bhishm took prosecutrix (name withheld) in SGM Hospital for medical examination. She refused to get herself internally medically examined and was admitted in the Hospital. IO prepared a tehrir and handed over the same to Constable Bhishm for getting the FIR registered. She alongwith IO SI Pramod and complainant/prosecutrix (name withheld) reached at village Qutabgarh in search of accused Pappu. Accused Pappu was not found there. Constable Bhishm came at the spot and handed over to the IO a copy of FIR and original rukka. Thereafter, they reached at village Purpanchi, Distt. Sonepat, Haryana but accused Wazir and Pappu were not found there. Thereafter, they again reached at Village Qutabgarh and at the instance of complainant apprehended accused Pappu, present in the Court (correctly identified) and was arrested. He was medically examined in the Hospital and thereafter, they came back to Police Station.
7 of 39 8 FIR No. 290/11 PS - Kanjhawala PW3 - HC Sanjeet, who deposed that on 21/12/2011, he was posted as Duty Officer in PS Kanjhawala and was on duty from 5:00 p.m. to 9:00 a.m. On that day, at about 7:45 p.m., SI Pramod handed over to him a rukka on the basis of which and on his instructions, the present FIR No. 290/11 u/s 366/368/376/34 IPC was registered. After registration of FIR, he handed over the copy of FIR and original rukka to Constable Bhishm for handing over to SI Pramod. He has brought the original FIR register, copy of FIR. Copy of FIR is Ex. PW3/A (OSR) bearing his signature at point 'A'. He made the endorsement on rukka. Same is Ex. PW3/B. PW4 - Dr. M. Das, CMO, SGM Hospital, Delhi, who deposed that on 21/12/2011, one patient/prosecutrix (name withheld) D/o Sh. Narad aged 25 years, female was brought to Hospital for medical examination with the alleged history of marriage four month back then again on three days back in drowsy state. On local examination, no external injury was present. Patient was referred to SR Gynae & SR Medicine for further evaluation and examination. He prepared the MLC 8 of 39 9 FIR No. 290/11 PS - Kanjhawala and the same is Ex. PW4/A bearing his signature at point 'A'.
PW5 - Constable Rajender, who deposed that on 23/12/2011, he was posted as Constable in PS - Kanjhawala. On that day, he alongwith IO SI Pramod, Constable Satender, Constable Vijender and accused Pappu had left the Police Station in a private vehicle and reached at PS - Hasayan, District - Haathras, U.P. and from there, they took the local Police. Thereafter, they reached Village - Siktara and Pappu took them in a house and told that this is the house of accused Bunty and thereafter, they apprehended the accused Bunty at the instance of accused Pappu. He was interrogated and arrested vide arrest memo Ex. PW5/A and his personal search was conducted vide memo Ex. PW5/B, both bearing his signatures at points 'A'. Thereafter, they all reached at Village - Tod in search of accused Bobby but he was not found there. They came back to PS - Hasayan and information was given regarding the arrest of accused Bunty. They came back to Delhi and took accused Pappu and Bunty in Sanjay Gandhi Hospital where they were medically examined. Accused were brought to Police Station and were sent to Police lockup. Thereafter again, he alongwith IO, 9 of 39 10 FIR No. 290/11 PS - Kanjhawala Constable Satender took out the accused Pappu from the Police lockup and reached Village - Purpanchi, District Sonipat, Haryana where accused had pointed out the house of accused Wazir but accused Wazir was not found there. They came back to Delhi. Accused Pappu and Bunty are present in the Court (correctly identified).
PW6 - Constable Bhisham Kumar, who deposed that on 21/12/2011, he was posted as Constable in PS - Kanjhawala. On that day, IO SI Pramod, received DD No. 39D (Be read as DD No. 39B) and thereafter, he alongwith him reached at village - Qutab Garh where they met complainant/prosecutrix (name withheld) D/o Narang (Be read as Narad) and she told them about the incident and they brought her at Police Station. NGO - Anuradha was called and she did the counselling. SI Promod alongwith Constable Prem Lata took the prosecutrix in Sanjay Gandhi Hospital for medical examination. Duty Officer handed over to him the copy of FIR and original rukka and he reached village Qutab Garh where he met IO SI Promod alongwith Lady Constable Prem Lata and prosecutrix (name withheld) and he handed over the copy of FIR and original rukka to IO. Thereafter, they all reached at village -
10 of 39 11 FIR No. 290/11 PS - Kanjhawala Purpanchi, District - Sonipat, Haryana and made inquiries about accused Wazir and at the house of accused Wazir they met his mother, who told that Wazir is driver and he is not present at house and also that accused Pappu has not come there. Thereafter, they came back at Qutab Garh, Delhi at the house of Pappu and there at the instance of complainant, they apprehended the accused Pappu present in the Court (correctly identified). He was interrogated and arrested vide arrest memo Ex. PW6/A, his personal search was conducted vide memo Ex. PW6/B and he made disclosure statement Ex. PW6/C, all bearing his signatures at points 'A'. Accused pointed out the place i.e. Punjab Khod near Toll Tax, Shiv Mandir vide pointing out memo Ex. PW6/D bearing his signature at point 'A'. Accused was taken to Sanjay Gandhi Hospital where he was medically examined. They came back to Police Station and accused was sent to Police lockup.
PW7 - Constable Bijender, who deposed that on 23/12/2011, he was posted at PS - Kanjhawala as Constable. On that day, he joined the investigation of the present case alongwith IO SI Parmod Kumar, Constable Satender, Constable Rajender and they all alongwith accused 11 of 39 12 FIR No. 290/11 PS - Kanjhawala Pappu present in the Court (correctly identified) left the PS - Kanjhawala in a private vehicle and reached PS - Hasayan, District Hathras, U.P. From PS - Hasayan, IO joined the local Police in the investigation and thereafter, they all alongwith accused Pappu reached at village Sikhtara. There at village Sikhtara on the pointing out of accused Pappu, accused Bunty present in the Court (correctly identified) was apprehended from a house situated in the said village. Thereafter, accused Bunty was arrested and his personal search was conducted vide memos respectively already Ex. PW5/A and Ex. PW5/B. Thereafter, they all alongwith local Police and both the accused Pappu and Bunty in Police custody reached at village 'Tor'. There IO made queries regarding one person namely Bobby but nothing could be known about him and thereafter, they all returned back to PS - Hasayan. There at PS - Hasayan, IO gave the information regarding the arrest of accused Bunty and thereafter, they all left PS - Hasayan to reach PS - Kanjhawala, Delhi. After reaching Delhi, IO got accused Pappu and Bunty medically examined at SGM Hospital and thereafter, they reached PS - Kanjhawala and both the accused were put in the lockup. Accused Pappu was taken out from the lockup and thereafter, he alongwith IO, other staff and 12 of 39 13 FIR No. 290/11 PS - Kanjhawala accused Pappu reached at Village - Purpanchi, District - Sonepat, Haryana and there accused Pappu pointed out the house of one Wazir but Wazir was not found present there. As such they all came back to PS - Kanjhawala, Delhi. IO recorded his statement.
PW8 - Dr. Supriya, SR Gynae, SGM Hospital, Delhi, who deposed that she has been deputed by MS of SGM Hospital to depose in place of Dr. Hina, SR, Obs. & Gynae, as Dr. Hina had left SGM Hospital and her present whereabouts are not known. She has seen the MLC No. 19841 pertaining to prosecutrix (name withheld) D/o Narad aged about 25 years female already Ex. PW4/A. Prosecutrix (name withheld) was medically examined by Dr. Hina on 21/12/2011 at about 5:15 p.m. with alleged H/o marriage three years back. Prosecutrix (name withheld) had refused for her internal (gynecological) examination and for taking samples. According to patient/prosecutrix (name withheld), there was no alleged H/o Sexual assault and patient wanted to go home. Patient at that time was conscious, alert and cooperative and was not drowsy at the time of her examination. The notings of Dr. Hina on MLC already Ex. PW4/A are encircled at point 'B' and bears signature of Dr. Hina at point 13 of 39 14 FIR No. 290/11 PS - Kanjhawala 'C'. She can identify the handwriting and signature of Dr. Hina as she has seen her writing and signing in the course of her official duties.
PW9 - Prosecutrix, is the victim who deposed some facts regarding the incident but did not support the prosecution and was also crossexamined by the Learned Addl. PP for State.
PW10 - SI Parmod Kumar, is the Investigating Officer (IO) of the case who deposed that on 21/12/2011, he was posted as SI at PS Kanjhawala. On that day, on receipt of DD No. 39B, he alongwith Constable Bhism reached at the spot that is Village Qutabgarh. One girl namely prosecutrix (name withheld) met him. He made inquiry from prosecutrix (name withheld), who informed that she was forced to marry with Wazir. She leveled allegations against two other persons namely Pappu and Bunty by stating that they had forced to marry her with Wazir. They brought the prosecutrix at PS Kanjhawala. Ms. Anuradha, Counselor from NGO was called at PS for counseling of the prosecutrix. He recorded the statement of prosecutrix (name withheld), who leveled allegations for committal of rape upon her by Wazir and Pappu and also 14 of 39 15 FIR No. 290/11 PS - Kanjhawala about the fact that she was forced to marry with Wazir. He alongwith W/Constable Prem Lata took the prosecutrix to SGM Hospital for her medical examination. Prosecutrix refused for her internal examination before the Doctor so only preliminary examination of the prosecutrix was conducted by the Doctor. He obtained the MLC from Hospital. Thereafter, prosecutrix (name withheld) was taken back to PS Kanjhawala. He made endorsement Ex. PW10/A on the statement of prosecutrix (name withheld) and produced the tehrir before Duty Officer for the registration of FIR. He alongwith Constable Prem Lata and prosecutrix went to village Qutabgarh in search of accused Pappu, however, he could not be traced at that time. Constable Bhism came to village Qutabgarh and handed over copy of FIR and original rukka to him. Then, he alongwith Constable Bhism, W/Constable Prem Lata and prosecutrix went to Village Purpanchi, District Sonipat, in search of accused Wazir. In the house of accused Wazir his mother met them who informed that accused Wazir is a truck driver and he had gone to some place but she was unaware about the same. Then they again went to Village Qutabgarh and at that time accused Pappu met them in his house. Accused Pappu was identified by prosecutrix (name withheld). Accused 15 of 39 16 FIR No. 290/11 PS - Kanjhawala Pappu is present before the Court (correctly identified). He interrogated accused Pappu and arrested him in the present case vide arrest memo and personal search memo already Ex. PW6/A & Ex. PW6/B bearing his signature at Point 'C'. He (accused Pappu) also gave a disclosure statement which was recorded by him. Same is Ex. PW6/C bearing his signature at Point 'A'. Thereafter, they took accused alongwith them for PS. On the way, when they reached at Village Punjab Khor, there accused Pappu identified a Temple by stating that this is the same Temple in which the marriage of prosecutrix (name withheld) and accused Wazir was performed. He prepared pointing out memo which is already Ex. PW6/D bearing his signature at Point 'C'. Accused Pappu was taken to SGM Hospital for his medical examination and thereafter, he was brought to PS. He recorded the statement of Constable Bhism and W/Constable Prem Lata. On 22/12/2011, prosecutrix (name withheld) was brought to the Court and her statement u/s 164 Cr.P.C. was got recorded by him. Thereafter, prosecutrix (name withheld) was sent to Nari Niketan. Accused Pappu was produced before the Court and his three days Police custody remand was obtained. In the morning of 23/12/2011, he alongwith Constable Bijender, Constable Satender, 16 of 39 17 FIR No. 290/11 PS - Kanjhawala Constable Rajender and with accused Pappu left PS Kanjhawala for going to the native village namely Sikh Tara, Distt. Hathras, U.P. They reached at PS Hassayan, Distt. Hathras and information of their arrival was given in PS Hassayan. The local Police staff was also taken for going to Sikh Tara, Distt. Hathras, U.P. They made search for accused Bunty @ Pinki Lala in the village. Accused Pappu pointed out towards accused Bunty, who was present outside his house in village Sikh Tara. Accused Bunty was apprehended by them and he was interrogated. Accused Bunty @ Pinki Lala is present before the Court (correctly identified). Accused Bunty was arrested in the present case vide arrest memo already Ex. PW5/A and his personal search was conducted vide memo already Ex. PW5/B. The intimation regarding the arrest of accused Bunty was given at local Police Station and then he was taken to SGM Hospital, Delhi for his medical examination. Thereafter, he was brought to PS. He recorded the statement of Constable Satender, Constable Rajender and Constable Bijender. On the next day, accused Bunty and accused Pappu were produced in the Court. The third accused Wazir applied for anticipatory bail which was granted by the Court, so accused Wazir was formally arrested in this case on 08/01/2012 vide 17 of 39 18 FIR No. 290/11 PS - Kanjhawala arrest memo Ex. PW10/B bearing his signature at point 'A'. Accused Wazir is present in the Court (correctly identified). He recorded the statements of the witnesses. After completing the investigation, he filed the chargesheet.
PW11 - Sh. Dheeraj Mor, Learned MM, Saket, New Delhi, who deposed that on 22/12/2011, he was posted as MM in Rohini Court. On that day, an application for recording statement u/s 164 Cr.P.C. of victim/prosecutrix (name withheld) D/o Sh. Narad, Aged about 25 Years, R/o VPO unknown, Nepal was marked to him. Application is Ex. PW11/A. IO SI Pramod Kumar produced victim/prosecutrix (name withheld) and identified her and he recorded his (IO) statement in this regard. IO was asked to leave the Chamber. He had put certain preliminary questions to the victim and after satisfying himself that she is making the statement voluntarily, he proceeded to record her statement. His proceedings in this regard is Ex. PW11/B bearing his signature at Point 'A'. Statement of victim/prosecutrix (name withheld) recorded by him is already Ex. PW9/A bearing his signature at Point 'B' and thumb impression of victim/prosecutrix (name withheld) at Point 'A'.
18 of 39 19 FIR No. 290/11 PS - Kanjhawala After recording the statement he issued the certificate regarding its correctness and the same is Ex. PW11/C bearing his signature at Point 'C'. Ahlmad was directed to give the copy of the same (to the IO) and was also directed to send the proceedings to the concerned MM in sealed cover. Such copy of statement was supplied to the IO on his application Ex. PW11/D. The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statements of accused Wazir, Pappu and Pinky @ Lala @ Bunty were recorded u/s 313 Cr.P.C. wherein they pleaded innocence and false implication. Accused Pappu and Pinky @ Lala @ Bunty did not opt to lead any defence evidence. However, accused Wazir initially opted to lead defence evidence but did not lead any defence evidence.
7. Learned Counsel for the accused submitted that prosecutrix has not supported the prosecution and the prosecution has failed the prove its case beyond reasonable doubts and prayed for the acquittal of 19 of 39 20 FIR No. 290/11 PS - Kanjhawala the accused on the charge levelled against them.
8. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard Ms. Nimmi Sisodia, Learned Addl. PP for the State and Sh. Anil Dabas, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 366/368/34 IPC against accused Wazir, Pappu and Pinky @ Lala @ Bunty and the charge for the offence punishable u/s 376 IPC against accused Wazir is that about 4/5 months prior to 21/12/2011, within the jurisdiction of PS - Kanjhawala, they all accused in furtherance of their common intention abducted prosecutrix (name withheld) D/o Sh. Narad, age around 25 20 of 39 21 FIR No. 290/11 PS - Kanjhawala years with intent to compel her for marriage and that she may be seduced to illicit intercourse and wrongfully confined her and thereafter, accused Pinky @ Lala @ Bunty and Pappu forcibly solemnized her marriage with accused Wazir and thereafter, accused Wazir took her at his Village Panchi, District - Sonepat, Haryana and wrongfully confined her for about 4/5 months and that accused Wazir took prosecutrix (name withheld) at his Village - Panchi, District - Sonepat, Haryana and forcibly established physical relations with prosecutrix (name withheld) and committed rape upon her for about 4/5 months.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
12. PW9 - prosecutrix in her statement recorded in the Court on 01/08/2014 while giving her particulars has stated her age as 25 years.
21 of 39 22 FIR No. 290/11 PS - Kanjhawala Since PW9 - prosecutrix has stated her age as 25 years on 01/08/2014 at the time of recording her evidence/statement in the Court and the date of alleged incident is about 4/5 months prior to 21/12/2011, on simple arithmetical calculation, the age of the prosecutrix comes to 22 years and 21 days as on the date of alleged incident on 4/5 months prior to 21/12/2011.
Moreover, the said factum of age of PW9 - prosecutrix has also not been disputed by any of the accused persons. Nor any evidence to the contrary has been produced or proved on the record on behalf any of the accused persons.
In the circumstances, it stands proved on record that PW9 - prosecutrix was aged 22 years and 21 days as on the date of incident about 4/5 months prior to 21/12/2011. MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW4 - Dr. M. Das, CMO, SGM Hospital, Delhi has deposed that on 21/12/2011, one patient/prosecutrix (name withheld) D/o Sh. Narad aged 25 years, female was brought to Hospital for medical 22 of 39 23 FIR No. 290/11 PS - Kanjhawala examination with the alleged history of marriage four month back then again on three days back in drowsy state. On local examination, no external injury was present. Patient was referred to SR Gynae & SR Medicine for further evaluation and examination. He prepared the MLC and the same is Ex. PW4/A bearing his signature at point 'A'.
PW8 - Dr. Supriya, SR Gynae, SGM Hospital, Delhi has deposed that she has been deputed by MS of SGM Hospital to depose in place of Dr. Hina, SR, Obs. & Gynae, as Dr. Hina had left SGM Hospital and her present whereabouts are not known. She has seen the MLC No. 19841 pertaining to prosecutrix (name withheld) D/o Narad aged about 25 years female already Ex. PW4/A. Prosecutrix (name withheld) was medically examined by Dr. Hina on 21/12/2011 at about 5:15 p.m. with alleged H/o marriage three years back. Prosecutrix (name withheld) had refused for her internal (gynecological) examination and for taking samples. According to patient/prosecutrix (name withheld), there was no alleged H/o Sexual assault and patient wanted to go home. Patient at that time was conscious, alert and cooperative and was not drowsy at the time of her examination. The notings of Dr. Hina on MLC already Ex. PW4/A are encircled at point 'B' and bears signature of Dr. Hina at point 23 of 39 24 FIR No. 290/11 PS - Kanjhawala 'C'. She can identify the handwriting and signature of Dr. Hina as she has seen her writing and signing in the course of her official duties.
Despite grant of opportunity PW4 - Dr. M. Das and PW8 - Dr. Supriya were not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical examination vide MLC Ex. PW4/A and the gynaecological examination vide notes encircled at point 'B' on the MLC Ex. PW4/A of PW9 - prosecutrix stands proved on the record.
16. Now let the testimony of PW9 Prosecutrix be perused and analysed.
PW9 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "About four years back I was brought from my village in Bengal to Delhi by someone (koi lai kar aaya tha) for doing work (kaam karne kai liya). After bringing me to Delhi, I was put for doing the maid servant job in a house where I worked for about two/three months. I do not know the name of the house owner (malik) where I worked for two/three months. I was given beatings by the house owner (malik) 24 of 39 25 FIR No. 290/11 PS - Kanjhawala where I was working and thereafter, I was turned out of the house (nikal diya tha). I came to Old Delhi Railway Station where one person by the name Bobby met me. Bobby took me to his village Hathras where Bobby performed the marriage with me (marai saath shadi kar liya) and had kept me for about two months with him and thereafter, he (Bobby) handed over (de diya) me to some other person."
During her further examinationinchief recorded on 04/08/2014, PW9 - prosecutrix has deposed that : "Bobby handed over me to Ujeer. Thereafter, Ujeer took me to his village, his home address I do not know. I can identify Ujeer, if shown to me.
At this stage, the wooden partition has been removed. Accused Wazir is present in the Court, who has been identified by the witness as Ujeer.
The wooden partition now has been restored to its original position.
After Ujeer (accused Wazir) taking me to his village, thereafter, he left me at the house of his chacha Pappu. I can identify Pappu, if shown to me.
At this stage, the wooden partition has been removed. Accused Pappu is present in the Court, (correctly identified).
The wooden partition now has been restored to its original position.
25 of 39 26 FIR No. 290/11 PS - Kanjhawala Pappu kept me in his house. He did nothing with me. I used to treat just like my brother. At the house of Pappu I fell seriously sick and I was suffering from high fever and Pappu took me to the Doctor for my medical treatment. I stayed at the house of Pappu. Thereafter, what happened I do not know. I also identify accused Bunty present in the Court. Accused Bunty met me at the house of accused Pappu. Accused Bunty did nothing with me. Police came at the house of accused Pappu and they brought me to Nari Niketan."
From the aforesaid narration of PW9 - prosecutrix, it is clear that about four years back she was brought from her village in Bengal to Delhi by someone (koi lai kar aaya tha) for doing work (kaam karne kai liya). After bringing her to Delhi, she was put for doing the maid servant job in a house where she worked for about two/three months. She does not know the name of the house owner (malik) where she worked for two/three months. She was given beatings by the house owner (malik) where she was working and thereafter, she was turned out of the house (nikal diya tha). She came to Old Delhi Railway Station where one person by the name Bobby met her. Bobby took her to his village Hathras where Bobby performed the marriage with her (marai saath shadi kar liya) and had kept her for about two months with him and thereafter, he (Bobby) handed over (de diya) her to some other 26 of 39 27 FIR No. 290/11 PS - Kanjhawala person. Bobby handed over her to Ujeer. Thereafter, Ujeer took her to his village, his home address she does not know. She correctly identified Wazir present in the Court. After Ujeer (accused Wazir) taking her to his village, thereafter, he left her at the house of his chacha Pappu. She correctly identified accused Pappu present in the Court. Pappu kept her in his house. He did nothing with her. She used to treat just like her brother. At the house of Pappu she fell seriously sick and she was suffering from high fever and Pappu took her to the Doctor for her medical treatment. She stayed at the house of Pappu. Thereafter, what happened she does not know. She also identify accused Bunty present in the Court. Accused Bunty met her at the house of accused Pappu. Accused Bunty did nothing with her. Police came at the house of accused Pappu and they brought her to Nari Niketan.
PW9 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State as she was resiling from her previous statement which is reproduced and reads as under : "It is correct that I am in Delhi for the last two days after coming from Siliguri. None of the three accused namely Pappu, Bunty and Wazir had come to meet me while I am in Delhi during the last two days. Nor I received any phone call from the said accused during the last two days while I am in Delhi. It is wrong to suggest that during this 27 of 39 28 FIR No. 290/11 PS - Kanjhawala period of two days I met with accused persons. It is further wrong to suggest that I have given a false statement in the Court in order to save all the three accused persons. It is correct that I had already been married to accused Wazir (Ujeer) present before the Court today and for this reason I have given a false statement and have concealed the true and actual facts before the Court. It is wrong to suggest that I want to live with accused Wazir (Ujeer).
My parents had not come to attend my marriage with accused Wazir. None of my relative attended my marriage with accused Wazir. I got married to accused Wazir on my own will. I did not tell my parents about my marriage. It is wrong to suggest that my marriage with accused Wazir was not with my free consent or that I was forced to marry with accused Wazir that is why my parents or any other relative could not attend the marriage. Accused Wazir was introduced to me by accused Pappu. I do not know if accused Wazir his (is) friend of accused Pappu or if he is his relative. The marriage ceremonies were performed in a Temple. I do not know at what place the Temple was situated. I am not aware if that Temple was in the village of accused Pappu or not. Only accused Pappu attended my marriage with accused Wazir. Accused Bunty had not attended the marriage. I do not know if accused Pappu asked accused Wazir to marry with me. I myself asked accused Wazir to marry me. It is wrong to suggest that accused Pappu and Bunty forcefully took me to a Temple and there I was forced to marry with accused Wazir against my wishes. After the marriage, accused Wazir took me to his house but I do not know the address of his house or the name of village.
The Delhi Police came to the house of accused Pappu. I do not know as to how Delhi Police reached at the house of accused Pappu.
28 of 39 29 FIR No. 290/11 PS - Kanjhawala Q. You have deposed that after your marriage with accused Wazir, he had taken you to his house then how you were found present in the house of accused Pappu when Police reached there? Ans. After the marriage, accused Wazir left me at the house of accused Pappu.
I do not know after how many days accused Wazir left me at the house of accused Pappu. No quarrel took place between me and accused Wazir. I do not know about the reason as to why accused Wazir left me at the house of accused Pappu. I did not ask accused Pappu to call accused Wazir as he is my husband and without any reason he left me. It is wrong to suggest that I did not ask accused Pappu for this because I never consented to marry with accused Wazir.
I do not know as to with whom I came to Delhi. Vol. at that time I was working as maid in one house but I do not know the address of that house. I never made any PCR call at 100 number. I met first time with Police at the house of accused Pappu when I was seriously ill. Police took me to hospital as I was suffering from fever. All my medical treatment was got conducted by Police. It is correct that I had stated the names of all the three accused i.e. Wazir, Pappu and Bunty to Police. It is correct that I had stated to police that accused Pappu and Bunty forced me to marry with accused Wazir. I did not state to the police that accused Wazir made physical relationship with me.
I stayed in the house of Bobby for about 1½ to two years. I had seen accused Bunty in the village of Bobby. I am not aware if accused Bunty was friend of Bobby and used to visit his house. It is correct that Bobby had sent me with accused Bunty from his house. It is correct that accused Bunty brought me to Delhi. Q. Whether accused Pappu is Chacha of accused Bunty?
29 of 39 30 FIR No. 290/11 PS - Kanjhawala Ans. No. Again said, probably accused Pappu is related as Chacha to accused Bunty (CHACHA LAGTA HOGA). Again said, I do not know.
It is incorrect to suggest that accused Pappu met me first time at village Qutubgarh, Delhi. Vol. he met me first time at the house of Bobby and accused Bunty was accompanying him at that time. I had lived with accused Wazir for about one year as husband and wife. Mother of accused Wazir also used to live in that house. Q. Whether you had talked with the neighbours by residing in the house of accused Wazir?
Ans. No. I did not go outside by living in the house of accused Wazir.
I did not go outside as I did not in the habit to go out. It is wrong to suggest that I was not permitted by accused Wazir to go out from his house.
It is correct that I stayed in the house of accused Wazir only for about four five days and thereafter he left me at the house of accused Pappu. It is wrong to suggest that I stayed in the house of accused Wazir for about four five months. It is wrong to suggest that accused Wazir had kept me in his house. I never went out along with accused Wazir.
At this stage, the statement of the witness marked A is shown to her. It is correct that it bears my thumb impression at point X. It is wrong to suggest that I had stated to the police in my statement that accused Bunty and Pappu forced me to marry with accused Wazir or that accused Wazir had forcefully made physical relationship with me confronted with the portion A1 to A2 of the statement mark A, where it is so recorded. It is wrong to suggest that I made PCR call from the 30 of 39 31 FIR No. 290/11 PS - Kanjhawala house of accused Wazir, confronted with the portion A3 to A4 of the statement mark A where it is so recorded. I did not tell anything to the police. I put my thumb impression on a blank paper. It is wrong to suggest that I gave statement mark A to the police and then put my thumb impression on the same.
I do not know as to who had made call to the police and how police reached at village Qutubgarh. I do not know any one with the name Smt. Anuradha. I do not know if any lady Smt. Anuradha from NGO was called at PS. It is wrong to suggest that Smt. Anurahda made my counseling in PS and thereafter my statement was recorded. It is correct that I along with the police came to PS from the house of accused Pappu. At that time, I was suffering from fever. It is correct that police took me to hospital from PS. I did not tell anything to the doctor. It is wrong to suggest that I stated to the doctor that I was married in a drowsy state. It is wrong to suggest that I refused for internal examination before the doctor.
At this stage, the thumb impression mark in the encircled portion P1 on the MLC already exhibited as PW4/A is shown to the witness. I do not know whether I had put the thumb impression on the said MLC or not as I was not in conscious state. It is wrong to suggest that I was very much in conscious state and I refused for my internal examination before the doctor and thereafter I put my thumb impression at P1 on the MLC.
It is correct that police brought me to the court for recording of my statement before Ld. MM.
At this stage, a sealed envelope sealed with the seal of DM is opened from which the proceedings under Section 164 Cr.P.C. is taken out. The statement under Section 164 Cr.P.C. is shown to the witness, who identifies her thumb mark at point A and the said statement was 31 of 39 32 FIR No. 290/11 PS - Kanjhawala recorded whatever I had told to the Ld. MM. The statement under Section 164 Cr.P.C. is Ex. PW9/A. The statement under Section 164 Cr.P.C. was made by me without under the pressure and tutoring of anyone. It is correct that I know that all the three accused persons namely Bunty, Wazir and Pappu were arrested by the police and were sent to jail.
Q. Is it correct that all the three accused persons were arrested by the police on the complaint lodged by you against them?
Ans. It is correct.
It is correct that accused Pappu present in the Court was arrested by the police in my presence vide arrest memo Ex.PW6/A and his personal search was conducted vide personal search memo Ex.PW6/B. It is correct that the arrest memo and personal search memo of accused Pappu Ex. PW6/A and Ex. PW6/B bear my thumb mark at point B. It is wrong to suggest that accused Pappu after his arrest had taken the police to the Mandir where Pappu had got performed my marriage with accused Wazir. It is wrong to suggest that when accused Pappu after his arrest had taken the police to the Mandir where Pappu had got performed my marriage with accused Wazir and a pointing out memo in this regard was prepared Ex. PW6/D. At this stage, the pointing out memo Ex.PW6/D is shown to the witness, who admits her thumb impression at point B on the same.
It is wrong to suggest that the accused have allured me to depose in their favour whereby I will not be required to come again and again to the court to give the statement. I have not been threatened by anyone to depose in the court in a manner favouring the accused. It is wrong to suggest that I have compromised the matter with the accused persons and for this reason I am deposing in favour of the accused 32 of 39 33 FIR No. 290/11 PS - Kanjhawala persons. It is wrong to suggest that I am deposing falsely and concealing the true facts in order to favour the accused persons with whom the matter has been compromised. It is wrong to suggest that I have been won over by the accused persons. It is wrong to suggest that I am deposing falsely."
During her crossexamination by the Learned Counsel for the accused, PW9 - prosecutrix has deposed that : "I with my own will (Apni Marzi Se) had stayed in the house of accused Pappu and Wazir. It is correct that No Galat Kaam was committed upon me either by accused Pappu or Wazir. It is wrong to suggest that my no forcible marriage was performed by accused Pappu and Bunty with accused Wazir. I had performed marriage with accused Wazir with my own consent."
On analysing the entire testimony of PW9 - prosecutrix, it is clearly indicated that she has specifically deposed that, Pappu kept her in his house. He did nothing with her. Accused Bunty met her at the house of accused Pappu. Accused Bunty did nothing with her. During her crossexamination, she has specifically deposed that she got married to accused Wazir on her own will. Accused Wazir was introduced to her by accused Pappu. She does not know if accused Wazir his (was) friend of 33 of 39 34 FIR No. 290/11 PS - Kanjhawala accused Pappu or if he is his relative. She does not know if accused Pappu asked accused Wazir to marry with her. She herself asked accused Wazir to marry her. She had lived with accused Wazir for about one year as husband and wife. Mother of accused Wazir also used to live in that house. She did not support the prosecution on the statement made by her u/s 164 Cr.P.C. Ex. PW9/A. During her crossexamination by the Learned Addl. PP for the State, she has negated the suggestions put to her by the Learned Addl. PP for the State that during this period of two days she met with accused persons or that she has given a false statement in the Court in order to save all the three accused persons or that she want to live with accused Wazir (Ujeer) or that her marriage with accused Wazir was not with her free consent or that she was forced to marry with accused Wazir that is why her parents or any other relative could not attend the marriage or that accused Pappu and Bunty forcefully took her to a Temple and there she was forced to marry with accused Wazir against her wishes or that she did not ask accused Pappu for this (to call accused Wazir as he is her husband and without any reason he left her) because she never consented to marry with accused Wazir or that accused Pappu met her first time at village Qutubgarh, Delhi. Vol. he 34 of 39 35 FIR No. 290/11 PS - Kanjhawala met her first time at the house of Bobby and accused Bunty was accompanying him at that time or that she was not permitted by accused Wazir to go out from his house or that she stayed in the house of accused Wazir for about four five months or that accused Wazir had kept her in his house or that she had stated to the Police in her statement that accused Bunty and Pappu forced her to marry with accused Wazir or that accused Wazir had forcefully made physical relationship with her or that she made PCR call from the house of accused Wazir or that she gave statement mark 'A' to the Police and then put her thumb impression on the same or that Smt. Anurahda made her counseling in PS and thereafter her statement was recorded or that she stated to the Doctor that she was married in a drowsy state or that she refused for internal examination before the Doctor or that she was very much in conscious state and she refused for her internal examination before the Doctor and thereafter she put her thumb impression at (point) 'P1' on the MLC or that accused Pappu after his arrest had taken the Police to the Mandir where Pappu had got performed her marriage with accused Wazir or that when accused Pappu after his arrest had taken the Police to the Mandir where Pappu had got performed her marriage with accused Wazir and a 35 of 39 36 FIR No. 290/11 PS - Kanjhawala pointing out memo in this regard was prepared Ex. PW6/D or that the accused have allured her to depose in their favour whereby she will not be required to come again and again to the Court to give the statement or that she has compromised the matter with the accused persons and for this reason she is deposing in favour of the accused persons or that she is deposing falsely and concealing the true facts in order to favour the accused persons with whom the matter has been compromised or that she has won over by the accused persons or that she is deposing falsely.
As discussed hereinbefore, PW9 - prosecutrix has been found to be aged around 22 years, from the testimony of PW9 - prosecutrix, nothing is being indicated that about 4/5 months prior to 21/12/2011, accused Wazir, Pappu and Pinki @ Lala @ Bunty, in furtherance of their common intention abducted PW9 - prosecutrix, with intent to compel her for marriage and that she may be seduced to illicit intercourse and wrongfully confined her or that thereafter, accused Pinki @ Lala @ Bunty and Pappu forcibly solemnized her marriage with accused Wazir or that thereafter, accused Wazir took her at his Village Panchi, District - Sonepat, Haryana and wrongfully confined her for about 4/5 months or that accused Wazir, at his Village - Panchi, District 36 of 39 37 FIR No. 290/11 PS - Kanjhawala
- Sonepat, Haryana forcibly established physical relations with PW9 prosecutrix and committed rape upon her for about 4/5 months.
17. In view of above and in the circumstances, I find that the prosecution has failed to prove its case beyond reasonable doubt against accused Wazir, Pappu and Pinki @ Lala @ Bunty. The hostility of PW9
- prosecutrix has knocked out the bottom of the case of the prosecution. There is nothing on record to indicate that about 4/5 months prior to 21/12/2011, accused Wazir, Pappu and Pinki @ Lala @ Bunty, in furtherance of their common intention abducted PW9 prosecutrix aged around 22 years with intent to compel her for marriage and that she may be seduced to illicit intercourse and wrongfully confined her or that thereafter, accused Pinki @ Lala @ Bunty and Pappu forcibly solemnized her marriage with accused Wazir or that thereafter, accused Wazir took her at his Village Panchi, District - Sonepat, Haryana and wrongfully confined her for about 4/5 months or that accused Wazir, at his Village - Panchi, District - Sonepat, Haryana forcibly established physical relations with PW9 prosecutrix and committed rape upon her for about 4/5 months.
37 of 39 38 FIR No. 290/11 PS - Kanjhawala I accordingly, acquit accused Wazir, Pappu and Pinki @ Lala @ Bunty for the offences punishable u/s 366/368/34 IPC. Accused Wazir is also acquitted for the offence punishable u/s 376 IPC.
18. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Wazir, Pappu and Pinki @ Lala @ Bunty in the commission of offences punishable u/s 366/368/34 IPC and that of accused Wazir also in the commission of the offence punishable u/s 376 IPC, is concerned, the same is not sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has failed to bring the guilt home to the accused Wazir, Pappu and Pinki @ Lala @ Bunty beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Wazir, Pappu and Pinki @ Lala @ Bunty. I, therefore, acquit accused Wazir, Pappu and Pinki @ Lala @ Bunty for the offences punishable u/s 366/368/34 IPC and the accused Wazir also for the offence punishable u/s 376 IPC after giving them the benefit of doubt. Accused Wazir, Pappu and Pinki @ Lala @ Bunty are on bail. However, u/s 437A Cr.P.C. the bail bonds of accused Wazir, Pappu and 38 of 39 39 FIR No. 290/11 PS - Kanjhawala Pinki @ Lala @ Bunty shall remain in force for six months and they to appear before the Hon'ble Higher Court as and when such Court issues Notice in respect of any Petition filed against this judgment. Announced in the open Court (MAHESH CHANDER GUPTA) on 31st Day of March, 2015 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 39 of 39