Delhi District Court
State vs . (1) Sanjay Singh on 17 October, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 13/2012
Unique Case ID: 02404R0041192012
State Vs. (1) Sanjay Singh
S/o Rajender Singh
R/o House No. 174, Gali No. 3
Tomar Colony, Burari, Delhi.
(Convicted)
(2) Rajender Singh
S/o Chhitar Singh
R/o House No. 174, Gali No. 3
Tomar Colony, Burari, Delhi.
(Acquitted)
(3) Shashi Devi
W/o Rajender Singh
R/o House No. 174, Gali No. 3
Tomar Colony, Burari, Delhi.
(Acquitted)
(4) Tina @ Seema
W/o Amit
C/o Prempal Rana,
House No. D754, Gali No. 4,
Nathupura, Delhi.
Also at: House No. 23, Gali No. 2
Ibrahim Pur, Delhi.
(Acquitted)
State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 1
FIR No. : 163/2011
Police Station : Swaroop Nagar
Under Section : 363/376/506/109/349/323 IPC
Date of committal to Sessions Court : 22.02.2012
Date on which orders were reserved : 01.10.2012
Date on which judgment pronounced : 01.10.2012
JUDGMENT
Brief Facts:
(1) As per the allegations from 15.2.2011 to 19.10.2011 at B2/2, Shastri Park, Main Road, Burari, Delhi, the accused Sanjay Singh and Tina @ Seema offered / administered biscuit and tea to the prosecutrix 'M' (name of the girl is withheld being the case under Section 376 IPC), aged about 16½ years and thereafter the accused Sanjay Singh took her to Meerut and kept her in a Hotel and thereafter he took her to a village and committed sexual intercourse with her forcibly without her consent. It is further alleged that on 17.10.2011 and onwards the accused Sanjay Singh committed forcible sexual intercourse and also removed her clothes with intent to insult her modesty and committed criminal intimidation to her while the coaccused Rajender Singh and Shashi abetted him (Sanjay Singh) to kidnap the prosecutrix and to commit intercourse with her against her will. It is also alleged that the accused Rajender Singh had threatened the prosecutrix to kill her and the accused Sanjay State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 2 Singh, Rajender Singh and Shashi had wrongly confined the prosecutrix 'M' in a room from 15.10.2011 to 17.10.2011 and also gave her beatings. Further, as per the allegations, the accused Sanjay Singh had fraudulently or dishonestly induced the prosecutrix 'M' to elope with him on the pretext and promise to marry her after divorcing his wife Heena with whom he claimed that he had no relations and thereby deceived the prosecutrix.
Case of prosecution in brief:
(2) The case of the prosecution in brief is that on 19.10.2011 the complainant Smt. Kamlesh wife of late Sh. Satbir came to the police station and gave her statement to the police wherein she had stated that on 15.10.2011 at 4:00 PM her daughter 'M' aged 16 years had gone to Prem Nagar, Nathupura to give tuitions and did not return thereafter. She further informed the police that they had made efforts but her daughter could not be traced. She also gave description of her daughter to the police and expressed her suspicion that her daughter had been taken away by somebody after alluring her. On the basis of the statement of Smt. Kamlesh, FIR under Section 363 Indian Penal Code was registered and during investigations on 26.10.2011 the prosecutrix 'M' was got recovered from Gali No. 5, Tomar Colony, Burari, Delhi, and the accused Sanjay Singh was arrested by the police. Thereafter, statement of State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 3 prosecutrix was got recorded under Section 164 Cr.PC on the basis of which Sections 376/506/109/349/323 IPC were added in the charge sheet and the coaccused Rajinder Singh, Tina @ Seema and Shashi were also arrested. After completing the investigations, the charge sheet was filed in the court.
CHARGE:
(3) Initially charges under Section 328 / 363 /376/506/342/323 Indian Penal Code were settled against the accused Sanjay Singh.
However, later on 1.10.2012 charge under Section 420 Indian Penal Code was also settled against the accused. Further, charges under Section 363 /109/506/376/342/323 were settled against the accused Rajender Singh and Shashi and charge under Section 328 Indian Penal Code was settled against the accused Tina @ Seema. All the accused have pleaded not guilty and claimed trial. EVIDENCE:
(4) In order to discharge the onus upon it, the prosecution has examined as many as thirteen witnesses:
Public Witnesses:
(5) PW4 Kamlesh has deposed that the prosecutrix 'M' is her daughter who was aged about 16 to 16½ years on the day of incident State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 4 was a student studying in Class XI. According to the witness, the date and month she does not remember but on the day of Karvachauth in the year 2011, at about 4 PM, the prosecutrix went to teach the students and thereafter she did not return back to the house till 8 PM. The witness has deposed that she went to the house of those persons where her daughter 'M' used to go to teach children and came to know from thee that her daughter 'M' had left after giving tuitions. According to the witness, she thereafter went to the police station but they did not lodged her report and it was only after three days that the police lodged the FIR on statement vide Ex.PW3/B. The witness has further deposed that on the day of the Deepawali in the year 2011, she was called by the police at the police station and she found her daughter 'M' in the Police Station. When she inquired from her daughter as to what had happened, she did not inform her anything and appeared to be scared and was not in a position to speak. The witness has deposed that thereafter her daughter was handed over to her vide Ex.PW4/A. (6) Ld. APP for the State with due permission of the court put leading questions to the witness as she is not giving the complete details. The witness has denied that her daughter told her that she was kidnapped by Sanjay and his father and mother and Tina. (7) Thereafter, with due permission of the court, Ld. APP for the State cross examined the the witness wherein the witness has State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 5 deposed that the Police did not record her statement after the recovery of her daughter. According to the witness, she does not remember whether the police recorded her statement on 06.11.2011.
She admits that the police lodged an FIR on 19.10.2011. Witness has denied that she had told to the police on 06.11.2011 that prosecutrix had informed her that Sanjay and his parents and Tina were involved in her kidnapping. When confronted with portion A to A of her statement Ex.PW4/PA, it is found so recorded. According to the witness, she does not know the accused Sanjay and his parents and Tina. She has denied the suggestion that she has not deposed true facts before the court as the accused persons are residents of the same locality and she has been won over by the accused persons. This witness has not been cross examined on behalf of the accused and her entire testimony has gone uncontroverted. (8) PW11 is the prosecutrix 'M'. She has deposed that she has been residing on the given address with her family comprising of her brothers and mother for the last many years. According to the witness, at the time of incident, she was studying at class 12th in Govt Girls Senior Secondary School, Burari. She has deposed that accused Sanjay Singh (correctly identified), was known to her for the last 34 years since they were in love. The prosecutrix has further deposed that on 15.10.11, she had gone to give tuitions to Ashu and Adi in the neighbourhood and thereafter, she went to the house of State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 6 accused Tina, (correctly identified) who is like a sister to her. According to the witness, there at the house of Tina, she met Sanjay who was already present there and from there they both went for site seeing to Meerut (GHUMNE GAYE THE MEERUT MEIN) where they taken room on rent and stayed there with their own consent for 78 days. The prosecutrix has further deposed that on 25.10.11, she returned home and her family members made a complaint to the police and she was taken to the Police Chowki and thereafter, she gave her statement to the police. According to the witness, whatever she was asked by the police to state, she had stated in her statement because she was told that if she made this statement, the accused would be saved and would not go to Jail. The witness has further deposed that thereafter, she was taken to the hospital where her medical examination was conducted. According to the witness, she was also brought to the court where she statement was recorded which statement is Ex.PW11/A and whatever was told to her by the police, she told the Ld. MM.
(9) Ld. Addl. PP for the State with due permission of the court has cross examined the witness wherein she has admitted that she had given her age to the police and also to the Ld. MM as 16½ years and has voluntarily explained that she had given her age on the basis of school record. She has deposed that she had never failed in any of the classes. She has admitted that name of the father of the accused State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 7 Sanjay is Rajender Singh who is also the accused in the present case and was present in the court (correctly identified). The witness has further admitted that her statement was recorded by the police on 26.10.11 which statement is Ex.PW11/PX1 and also on 07.11.11 which statement is Ex.PW11/PX2.
(10) The witness who is literate has read her statement herself and admits that she has made the same to the police. She has admitted that she had made statement before Ld. MM which statement is Ex.PW11/A. I may observe that the witness after reading the contents of the statement admits the same. Witness has also admitted that before recording her statement under Section 164 Cr.PC, the Ld. MM had asked her if she knew that she should speak the truth on which she had replied to him in affirmative. According to the witness, the Ld. MM also asked her that if anybody had tutored her on which she told him that nobody had compelled or tutored her to made a statement before him. It has also been observed by the court that the above queries had been specifically mentioned at the proceedings by the Ld. MM which is Ex.PX3 at point bracketed X at Page 2 of the proceedings. According to the witness she did not tell the MM that she had been asked by the police to made a statement. She has admitted that she had told the MM that on 15.10.11, when she went to the house of Tina, the accused Sanjay was also present and she was asked to take tea and biscuits on which she become State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 8 unconscious and after that, when she gained consciousness, she found herself at hotel in Meerut at about 10:00 pm. The witness has admitted that she had also told the Ld. MM that thereafter she asked some person in the hotel, where she was, it was then that she came to know that she was in Meerut. She further admits that she had also told the Ld. MM that thereafter she was forcibly taken by Sanjay to a village at Meerut where she was detained in a house where the mother and father of Sanjay i.e. the accused Rajender and Shashi (correctly identified) also threatened her. According to the witness, the accused Sanjay had taken her to the village on 17.10.11 and forcibly committed rape on her and thereafter, he used to make physical relations with her daily. The witness has further admitted that she had told the police and the Ld. MM that Sanjay and his parents had forcibly abducted her and thereafter, Sanjay committed rape on her without her consent for a number of days. She further admits that she had told the police that the father of Sanjay was in Delhi Police and was repeatedly threatening to kill her and she wanted action against him and his family. The prosecutrix has correctly identified all the accused namely Sanjay, Rajinder, Shashi and Tina @ Seema. She has deposed that she had told the police that when she went to the house of Tina only she herself, Sanjay and her children were present and Tina gave tea and biscuits to her. According to her, she had told the police that Sanjay had brought her State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 9 back to Delhi but she did not tell them that he had kept her in the house at Gali No.5. The witness has voluntarily explained that she had told the police that Sanjay had kept her in his house. The witness has further deposed that she had also told the police that after the registration of the case, she was being threatened by the parents of the Sanjay to withdraw the present case.
(11) In her cross examination by Ld. Defence Counsels, the witness has deposed that she was known to Tina for the last 34 years and has voluntarily explained that Tina belongs to her mother's village. She admits that they had very good relations with Tina and has voluntarily added that after the registration of the present case, they are not on talking terms. She has admitted that she had not become unconscious and she had made the statement regarding going to the house of Tina and consuming Tea and biscuits on the asking of the police. The prosecutrix has admitted that she and Sanjay were in love for 34 years. According to her, the age mentioned in her certificate has been shown as less and has voluntarily added that her father had given lesser age in her school certificate for taking the benefit and stated that she was above 18 years of age at the time of incident. She admits that she had been told by the police what to state and it was on their asking that she made a statement when she had got her statement recorded before the Ld. MM. According to the prosecutrix, she wanted to save Sanjay and that is why whatever State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 10 police told her, she kept on stating. She has further deposed that she had never told the police that Sanjay had used any force on her. The prosecutrix has admitted that she made physical relations with the accused voluntarily and with her own consent and she went with Sanjay with her own consent. She further admits that the parents of the Sanjay had never met her before she had left with him for Meerut. She has also admitted that the parents of Sanjay had never forced her or compelled her to be kept at Meerut. The prosecutrix has also admitted that Sanjay had never compelled her for anything at any point of time and that she did not say anything to the police and whatever police wrote was of their own. She further admits that whatever statement she made to the MM, it was on the asking of the police and did not tell the MM that she was forced by the police to make the statement. She admits that she wanted to tell the Ld. MM that Sanjay and his parents was innocent but out of fear of the police, she did not tell.
(12) With permission of the court, the Ld.Addll. PP for State reexamine the witness. The witness has admitted that when her statement U/s 164 Cr. PC was recorded by the Ld. MM, except for herself and Ld. MM, there was no other person present in the room. On further court question, she also admitted that she had tried to commit suicide after incident and has voluntarily explained that she had attempted suicide twice.
State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 11 (13) In her cross examination by Addl. PP, the witness has deposed that her father had expired about 5 years back and admits that the accused Rajender Singh is employed in the Delhi Police. She has denied the suggestion that she and her family are under the fear and pressure of Rajender and his family. She has deposed that she is not aware that if the extended family of Sanjay and Rajender, also residing in the area. She has denied that she and her family have been won over by the family of the accused persons and that is why, she has deposed in their favour in the court. She has admitted that the accused was already married when the incident had taken place. (14) Pursuant to the framing of additional charge under Section 420 Indian Penal Code against the accused Sanjay Singh, the prosecutrix was recalled for her additional examination, wherein a specific question was put to her as to why she left with the accused Sanjay, to which the witness has explained that she was in love with the accused and the accused had assured her that he would marry her since he was not going along well with his wife and had no relations with her (his wife) and because he was greatly in love with her would marry her but he kept her in dark. (Sanjay ne mujhse kaha tha ki meri wife se meri nahin banti aur na hi mera usse koi relation hai, Meri biwi se nahin banti hai, Main tujhse bahut pyar kata hoon and tujhse shaadi karoonga. Mujhe dhokhe mein rakha gaya tha.) State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 12 (15) On Court Question as to why she did not ask Sanjay that when he was already married how he could marry her (witness) (Aapne Sanjay se pucha nahin ki uski to shaddi pehle hi ho chuki hai to woh aapse shaadi kaise karega?) on which the witness replied that Sanjay had told her that his wife wanted to divorce her and he himself also want to give her a divorce and thereafter he would marry her (witness) (Sanjay ne mujhse kaha ki meri wife mujhse talak lena chahti hai aur main bhi usse talak lena chata hoon aur uske baad tujhse shaadi karoonga.) (16) On further Court Question that being aware of the fact that there were no divorce proceedings going on between Sanjay and his wife, then why she (witness) went with him (Jab aapko pata tha ki Sanjay aur uski patni ke bich koi talak ki karyawahi nahin chal rahi thi, to aap Sanjay ke saath kyon chali gayi ?). The witness has responded that Sanjay used to frequently call her on phone and troubled her staking and told her that he was fed up with his wife and mother who used to fight with him everyday and were asking him to leave the house and therefore he used to trouble her every day and insist upon marring her (witness) (Sanjay mujhse barbar phone par kehta tha ki meri mammi aur biwi mujhse kehti hain ki ghar se chala ja aur meri unse laraiyaan hoti thi aur roz pareshan karta tha aur shaadi ke lye kehta tha.) State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 13 (17) A question was put to the witness as to where she had gone with the accused Sanjay (Aap Sanjay ke saath kahan gaye they?), to which she has explained that Sanjay had taken her to Meerut where he kept her in the house of his known person and when she told him that she wanted to go back home, he did not take her back. She has further deposed that Sanjay informed her that his mother was agreeable for their marriage and that after marriage he would keep her in the village itself. She has also deposed that during that period she had repeatedly requested the accused Sanjay to bring her back to her house, but he did not do so. (Sanjay apne kisi Jaankar ke ghar Meerut mein le gaya jahan par hum aath din tak rahe. Mainne usko kaha ki mujhe ghar par le chalo par vo mujhe nahin le kar aaya. Sanjay ne mujhse kaha tha ki meri mummi ka phone aaya hai aur vo humari shaadi karwa dengi aur mujhe gaon mein hi rakhengi. Mujhe jaise bataya gaya main vaise hi maanti gayi. Mainne es dauran Sanjay ko barbar kaha ki mujhe ghar jana haipar usnae mujhe jabardasti roke rakha aur jaane nahin diya.) (18) On further Court question as to how she had came back (Aap vapis kaise aaye?), the witness has explained that Police had come at the house of Sanjay and when he came to know about the same, then he brought her back to Delhi. (Police Sanjay ke ghar par State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 14 aayi thi aur jab isko pata chala Sanjay mujhe vapis Delhi le aaya aur chor duya.) The witness has also admitted that she had given her statement before the Ld. MM and her mother was also with her. (19) In her cross examination by Ld. Defence Counsels, the witness has admitted that she did not see the parents of the accused Sanjay with him at any point of time nor she had personally spoken to them at any point of time nor she is aware whether Sanjay had actually received a call from his parents or not and she believed whatever he had told her. (Yeh sahi hai ki mainne kabhi bhi Sanjay ke maatapita ko uske saath nahi dekha aur na hi mainne kabhi bhi unse baath ki thi or na hi mujhe pata hai ki Sanjay vastav mein apne maatapita se baat karta tha ya nahin. Mujhae jaise Sanjay nae kaha main waise hi maan gayi.) Medical Evidence:
(20) PW5 Dr. Gopal Krishna has deposed that on 26.10.2011 he was posted as CMO at BJRM Hospital, Delhi and on that day prosecutrix, female, 16½ years old was brought to the hospital by Lady Ct. Sunita with alleged history of sexual assault and she was medically examined by Dr. Aman under his supervision and he prepared the MLC No. 33470 which is Ex.PW5/A which bears signatures of Dr. Aman at point A and he put his signatures in his presence. According to the MLC, no fresh external injury was found State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 15 on the person of prosecutrix and she was referred to the Gynae Department for further medical examination.
(21) This witness has also seen the MLC No. 33515 and 33785 prepared by Dr. Santosh and Dr. Prashant and has identified their handwriting and signatures as they have worked with him. According to the witness, the MLC No. 33515 of Sanjay Singh, S/o Rajender Singh, male 22 years old dated 26.10.2011 was prepared by Dr. Santosh and same is Ex.PW5/B bearing signatures of Dr. Santosh at point A, and shows that there was no fresh injury on the person of Sanjay and he was referred to Surgery department for further treatment. The witness has further deposed that Dr. Prashant medically examined the above said person Sanjay in the surgery department and gave his opinion from point B to B1 and bears his signatures at point C and he opined that nothing to suggest that Sanjay was incapable for the sexual acts. According to the witness, the MLC Ex.PW5/B also bears his own signatures at point D. The witness has deposed that Dr. Santosh also medically examined above said Sanjay Singh on 04.11.2011vide MLC No. 33785 which is Ex.PW 5/C bearing his signatures at point A. (22) In his cross examination by Ld. Defence Counsels, the witness has admitted that MLC Ex.PW5/A does not bears his signatures. He has denied that the prosecutrix was not medically examined in his presence and that is why the MLC does not bears his State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 16 signatures. He has denied that he is not aware of the handwriting and signatures of Dr. Aman, Dr. Prashant and Dr. Santosh and has deposed falsely on the basis of the documents.
(23) PW6 Dr. Minakshi has deposed in respect of MLC No. 33470 prepared by Dr. Anshu Gupta and has identified her handwriting and signatures as she had worked with her. MLC No. 33470 of the prosecutrix 'M', female, 16½ years was medically examined at BJRM hospital vide MLC Ex.PW5/A and thereafter she was referred to Gynae department where Dr. Anshu Gupta medically examined the above said prosecutrix and made her observation from point B to B1 and bears her signatures at point C. The witness has deposed that in the local examination there was no injury marks to external genitalia, hymen old tear, two fingers easily inserted into the introitos, bleeding PV seen (Mensturating 25.10.2011). The witness has deposed that the exhibits samples of prosecutrix was taken by Dr. Anshu Gupta and same were handed over to the police in sealed condition.
(24) In his cross examination by Ld. Defence Counsels, the witness has admitted that Dr. Anshu Gupta did not medically examined prosecutrix in his presence. He has denied that he is not aware of the handwriting and signatures of Dr. Anshu Gupta and she had not worked with him at any time.
State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 17 Police Witnesses:
(25) PW1 Ct. Sanjeev has been examined in chief by way of affidavit which is Ex.PW1/1. He had took the exhibits of this case to the FSL. He has relied upon the RC No. 118/21/11 dated 26.12.2011 copy of which is Ex.PW1/A I and the receipt of FSL, copy of which is Ex.PW1/B. On his cross examination by Ld. Defence Counsels, the witness has denied the suggestion that he had tampered the seal of the exhibits at the instance of the investigating officer. (26) PW2 HC Yashbir has been examined in chief by way of affidavit which is Ex.PW2/1. He was working as MHC (M) and has relied upon the entry in Register No.19 bearing No. 667 copy of which is Ex.PW2/A and entry in Register No. 21 vide RC 18/21/11 copy of which is Ex.PW1/A. This witness has not been cross examined on behalf of the accused and his testimony has gone uncontroverted.
(27) PW3 ASI Raj Bala has been examined in chief by way of affidavit which is Ex.PW3/1. She was working as duty officer and has relied upon the DD No. 29A which is Ex.PW3/A and copy of FIR Ex.PW3/B. This witness has not been cross examined on behalf of the accused and his testimony has gone uncontroverted. (28) PW7 L/Ct. Sunita has deposed that on 26.10.11, she was posted at police station Swaroop Nagar and on that day she along State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 18 with ASI Naresh took prosecutrix to BJRM Hospital for her medical examination and after her medical examination, one pullanda in sealed condition with the seal of hospital containing the exhibits in respect of the prosecutrix along with sample seal was handed over to her by the doctor and she handed over the same to ASI Naresh Pal who seized the same vide seizure memo Ex. PW7/A. This witness has not been cross examined on behalf of the accused and her entire testimony has gone uncontroverted.
(29) PW8 Ct. Vinay Kumar has deposed that on 26.10.2011 he along with ASI Naresh Pal and the accused Sanjay went to BJRM Hospital and medical examination of accused Sanjay was conducted after which the doctor handed over two pullandas in sealed condition with the seal of MS BJRM hospital with sample seal to him which he handed over the same to ASI Naresh Pal and who seized the same vide seizure memo Ex. PW8/A. This witness has not been cross examined on behalf of the accused and her entire testimony has gone uncontroverted.
(30) PW9 Ct. Naresh Kumar has deposed that on 04.11.11, he along with SI Vineeta, Ct. Santosh went to Tihar Jail in a private vehicle bearing No. DL2CAL8582 and took accused Sanjay to Meerut. According to the witness, on the way to Meerut, the accused Sanjay pointed out a hotel Om Shiv Restaurant and disclosed that he stayed at the said hotel along with prosecutrix 'M' pursuant to which State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 19 SI Vineeta examined the owner of the hotel namely Naveen Kumar who had stated that the hotel was not for stay and it was only a restaurant. The witness has deposed that the accused Sanjay also disclosed that he had stayed in a nearby village along with prosecutrix but he does not recollect the name of the village now.
This witness has not been cross examined on behalf of the accused and her entire testimony has gone uncontroverted. (31) PW10 HC Dharmvir has deposed that on 25.10.2011, he along with ASI Naresh reached at Gali No. 5, Tomar Colony, Burari in search of the prosecutrix and the accused persons. According to the witness, one secret informer met them there who gave information to ASI Naresh and pointed out the room where prosecutrix was with the accused persons. The witness has deposed that he along with ASI Naresh reached at the house and knocked the door on which one person opened the door who disclosed his name later on as Sanjay. The witness has deposed that thereafter they entered the room and he apprehended the accused Sanjay and prosecutrix and mother of the accused Sanjay was also found in the room. According to the witness, ASI Naresh interrogated the prosecutrix and prepared the recovery memo vide Ex.PW10/A after which accused Sanjay was arrested vide Ex.PW10/B and his personal search was conducted vide Ex.PW10/C. State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 20 (32) In his cross examination by Ld. Defence Counsel, the witness has denied the suggestion that he has not apprehended accused Sanjay from the place as stated by him or that he has seen him in the police station or that he has been cited a false witness in this case. The witness has further denied that his signatures were obtained on the papers subsequently by the IO in the police station. (33) PW12 ASI Naresh Pal has deposed that on 19.10.2011, Kamlesh W/o late Satbir came at the police station and on her statement FIR No. 163/2011 was registered and after registration of the FIR duty officer handed over copy of FIR and original ruqqa to him for investigation. According to the witness, he met Kamlesh and verified the facts from her and also collected a DD No. 29 A dated 19.10.2011 from the duty officer which is Ex.PW12/A. The witness has deposed that the complainant Kamlesh suspected that her daughter the prosecutrix was kidnapped by Sanjay S/o Rajender Singh and thereafter he made effort to search the accused Sanjay. The witness has deposed that on 25.10.2011 at about 930 p.m. he received a secret information that accused Sanjay was coming at his house at the night time. According to the witness, at about 12 midnight he again got a secret information that accused Sanjay was present at his house in the gali No. 5, Tomar Colony, Burari Delhi. Thereafter, he alongwith HC Dharmvir and other staff reached at the above said address and at the instance of secret informer they State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 21 knocked at the door of one house and door was knocked by him and the same was opened by a boy who later disclosed his name as Sanjay and they entered in the room and they also found prosecutrix and mother of the accused Sanjay in the room. The witness has deposed that he interrogated the prosecutrix and recorded her statement and also interrogated accused Sanjay and he confessed about his involvement with the prosecutrix. Thereafter he prepared the recovery memo of prosecutrix vide Ex. PW10/A and arrested accused Sanjay vide Ex. PW10/B and his personal search was taken vide Ex. PW10/C. The witness has further deposed that on 26.10.2011 medical examination of both prosecutrix and the accused was got conducted at BJRM Hospital and their exhibits were collected vide seizure memo Ex. PW7/A and Ex.PW8/A. He also got recorded the statement of prosecutrix under Section 164 Cr.PC. Thereafter, on 29.10.2011 he collected the copy of the statement of prosecutrix under Section 164 Cr.PC and also added Section 376 IPC after which the investigation was handed over to WSI Vineeta. (34) In his cross examination by Ld. Defence Counsels, the witness has admitted that in the DD No. 29 A Kamlesh had stated that her daughter prosecutrix was kidnapped by an unknown person. He has denied that the mother of the prosecutrix Kamlesh had never named accused Sanjay in her statement to him or that he had added the name of Sanjay of his own. The witness has also denied that the State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 22 accused Sanjay had never made any disclosure statement to him or that he had fabricated the same falsely according to his convenience in order to support my case. He has also denied that he had twisted the facts at the instance of the mother of prosecutrix wrongly with a view to implicate the accused persons falsely in this case. He has also denied that he had tutored the prosecutrix to name the accused persons in her statement under Section 164 Cr.PC. The witness has denied the suggestion that whatever prosecutrix deposed in her statements recorded by him as well as by Ld. MM under Section 164 Cr.PC under his pressure. The witness has further denied that he had never arrested the accused Sanjay from the place as stated by him and that the accused was called in the police station and falsely implicated in this case. The witness has further denied the suggestion that he had not conducted the investigation fairly or that the prosecutrix had levelled a false allegation against any of the accused during investigation of this case.
(35) PW13 SI Vineeta Prasad has deposed that on 28.10.2011 she was posted in the Rape Cell Sub Division, Jahangir Puri and by the order of the ACP Jahangir Puri, the investigation of this case was marked to her and she received the case file with documents from the previous IO ASI Naresh Pal. Thereafter, on 03.11.2011 she moved an application for production of the accused Sanjay and the same was allowed and they obtained two days Police State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 23 Custody Remand of the accused Sanjay and thereafter on 04.11.2011 she along with Ct. Naresh and Ct. Santosh reached at Tihar Jail and accused Sanjay was taken in custody by her. She has deposed that thereafter, they went to Meerut in a vehicle and on the way to Meerut (near Meerut) the accused Sanjay pointed out towards a Dhaba Om Shiv Restaurant and disclosed that he stayed along with the prosecutrix in that Dhabha. According to the witness, she examined the owner of the Dhabha who told her that there are no rooms for stay in the Dhaba as it was only a restaurant and he could not identify any persons who had stayed in his Dhaba for taking breakfast, lunch and dinner. The witness has deposed that the accused Sanjay was again interrogated by her who told her that he cannot tell about the village where he kept the prosecutrix and thereafter, they reached at Police Station Siya Bali, Aheer and arrival DD was made there. According to the witness, thereafter, they returned back to police station Jahangir Puri and his formal medical examination was conducted and she recorded his disclosure statement Ex.PW13/A. The witness has deposed that accused Sanjay was kept in the lock up at police station Jahangir Puri and on the next day accused Sanjay was produced before the court and he was sent to judicial custody. According to the witness, during her investigation, she recorded statement of prosecutrix and her mother and after completion of investigation, she submitted the charge sheet against the accused State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 24 Sanjay Singh, Rajender Singh, Shashi Devi and Teena @ Seema. (36) In her cross examination by Ld. Defence Counsels, the witness has admitted that she had mentioned in charge sheet that she had found no evidence or involvement against the accused Teena, Rajender Singh and Shashi Devi and she has submitted the charge sheet by putting these accused persons in column No. 11 A of the charge sheet. According to the witness, she had not arrested accused Teena, Rajender Singh and Shashi Devi during her investigation. She has denied that the prosecutrix and Kamlesh not made any statement to her or that she has fabricated their statements to falsely implicate the accused persons.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
(37) After completing the prosecution evidence, statement of accused Sanjay Singh was recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence / material was put to him which he denied. He has not examined any witness in defence.
(38) In so far as accused Rajinder Singh, Shashi and Tina are concerned, there being no incriminating material against them, their statement under Section 313 Cr.PC was dispensed with.
State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 25 FINDINGS:
(39) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and Ld. Defence Counsels. I have also considered the testimonies of various witnesses and the written memorandum of arguments filed on behalf of the accused. My findings are as under:
Identity of the accused:
(40) In so far as the identity of the accused is concerned, there is no dispute as all the accused are known to the complainant who is the mother of the prosecutrix and to the prosecutrix being residents of the same area. Even otherwise they have also been correctly identified in the court by the prosecutrix and her mother. This being the background, I hold that the identity of the accused Sanjay Singh, Rajinder Singh, Shashi and Tina @ Seema, stands established and proved.
Age of the prosecutrix:
(41) The case of the prosecution is that the prosecutrix was minor (around 13 to 14 years of age) at the time of the incident. The prosecutrix in her deposition before the court stated that she was 19 years of age. However, I may note that earlier at the time of recording of her statement under Section 164 Cr.PC before the Ld. MM, she had given her age as as 16½ years. Further, the mother of State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 26 the prosecutrix has specifically deposed that the prosecutrix was around 16 to 16½ years of age at the time of the incident and was studying in Class 11th. I may further observe that the prosecutrix had also given her age as 16½ years to the doctor when taken for her medical examination and in her cross examination by the Addl. PP for the State explained that she has given her age as 16½ years on the basis of her school record. The best person who would have known and given the exact age of the prosecutrix and could be in a position to give the correct age of the prosecutrix in the school record, is her mother who incidentally has not been cross examined on this aspect.
As per the school record the date of birth of the prosecutrix is mentioned as 15.2.1995 showing that on the date of incident i.e. in the year 2011 she was more than 16½ years of age. The explanation given by the prosecutrix that her father had given her lesser age in the school record and that she was more than 18 years of age, does not appear to be convincing and probable (having admitted that she had never failed in any class in the school and at the time of the incident was studying in class 11th coupled with the observation of this court that she appeared to be a minor) and is only an attempt by her to save the accused (with whom she is in love) from penal consequences. Therefore, under the given circumstances, I hold that at the time of the incident the prosecutrix was above 16 years of age and had attained the age of consent.
State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 27 Medical Evidence:
(42) Dr. Gopal (PW5) and Dr. Meenakshi (PW6) have proved the medical record of the prosecutrix 'M' showing that there was no fresh injury on her body. They have proved the MLC of both the prosecutrix and the accused. PW6 Dr. Meenakhsi has proved the gynecological examination of the prosecutrix and has observed that there was no injury marks on the external genitalia and hymen was found torn (old). The perusal of the MLC of the prosecutrix shows that the prosecutrix had been brought to the hospital with alleged history of sexual assault but it does not show that the said history had been given by the patient herself.
Forensic Evidence:
(43) The forensic evidence which has come on record shows that no blood and semen stains have been detected in any of the exhibits and therefore does not at all assist the prosecution in any manner in so far as the allegations of sexual assault (rape) are concerned.
Allegations against the accused Sanjay Singh:
(44) Here, at the very outset I may state that the case as set out initially by the prosecution in the charge sheet is that of kidnapping and rape but a different version has emerged on evaluation of the evidence which has come on record during trial. State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 28 (45) The case of the prosecution is that 'M' aged about 16½ years old a student of class 11th had gone to give tuition to some children on 15.10.2011 at about 4:00 PM but did not return till 8:00 PM after which her mother had gone to see her and she was told that the prosecutrix had already left and thereafter she (mother) had gone to the police station and lodged a missing complaint. After about 9 to 10 days on the day of Deepawali the prosecutrix return back and when her mother asked what had happened, she did not say anything to her but later the prosecutrix told her mother that she had been kidnapped by the accused persons on which she was taken to the hospital where she was medically examined and thereafter her statement under Section 164 Cr.PC was also recorded by the Ld. MM wherein she made allegations against the accused Sanjay Singh for having kidnapped and sexually exploited her with his family abetting the said crime.
(46) In so far as the complainant Kamlesh (PW4) is concerned, she in her deposition before this Court has admitted her complaint but has not supported the earlier version given by her to the police with regard to the allegations against the accused. A suggestion had been made to the witness Kamlesh by Addl. PP that she had been won over by the accused, which suggestion she has denied.
State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 29 (47) The case of the prosecutrix 'M' was initially no different.
When she was examined in the Court as PW11, she testified to the effect that she was known to the accused Sanjay Singh for the last three to four years and they were in love and on 15.10.2012 she had gone to give tuition after which she went to the house of Tina (who was like a sister to her) where she met Sanjay as he was already present there. She deposed that thereafter she and the accused Sanjay went to Meerut where they took a room on rent and stayed there for seven to eight days and thereafter on 25.10.2011 she returned back when she came to know that her mother had lodged a complaint after which she was taken to police station where her statement was recorded. The prosecutrix 'M' was cross examined at length by the Addl. PP and it is there that she admitted that she had earlier made a statement to the Ld. MM and also admitted the contents of the said statement. She admitted that she had told the Ld. MM the following facts:
➢ That she was forcibly taken by Sanjay to a village where she was detained in a house.
➢ That the mother and father of the accused i.e. the co accused Rajender and Shashi had threatened her. ➢ That on 17.10.2011 the accused Sanjay Singh had committed rape upon her and used to make physical relations with her almost daily which was without her consent;. State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 30 ➢ That the father of accused Sanjay Singh was in Delhi Police and he had threatened to kill her and to take action against her family.
➢ That when she went to the house of Tina @ Seema only she and her children were present and Tina gave her biscuits and tea; that after registration of the FIR she was threatened by the parents of the accused Sanjay to withdraw the case.
➢ That she had gone to the house of Tina and consumed Tea and biscuits.
➢ That she was having a love affair with the accused Sanjay for three to four years.
(48) She has however explained that she had not become unconscious and she had made the statement to the Ld. MM on the tutoring of the police which explanation however did not find favour with this Court. The prosecutrix in her initial testimony made to the Court on 21.8.2012 had not supported her earlier version but in her testimony made before this Court on 1.0.2012 after the examination of the wife of the accused, she has come out with the true facts. This I say because at the time of the incident when the accused Sanjay and the prosecutrix 'M' had eloped Sanjay was already married to the knowledge of the prosecutrix. She in her statement to the Ld. MM had made incriminating evidence against all the accused persons but State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 31 in her testimony before this court she has explained that she had done so on the asking of the Investigating Officer. This explanation does not appear to be truthful and credible in the light of the peculiar circumstances of this case. The accused Rajinder Singh the father of accused Sanjay is employed in the Delhi Police and it does not appear convincing that the same Investigating Agency who had given a clean chit to Rajnder (by putting him in Column No. 11A not finding sufficient evidence to proceed against him) would have tutored the prosecutrix to make a statement against him (as claimed by the prosecutrix). They have no personal interest either to favour the prosecutrix and her family or to create evidence against the accused (their own officer i.e. accused Rajender Singh). Rather, on the other hand it would have been very simple and easy for the police if the prosecutrix would have not supported against the accused as she has now done before this Court and they would have closed the case. On the face of it the prosecutrix now having changed her mind, has found an easy way to shift the blame on the Investigating Officer.
Further, I may observe that on specific court question the prosecutrix has admitted that she had tried to commit suicide after the incident and has voluntarily added that she had done so on two occasions. If what is stated by the prosecutrix is correct that she had voluntarily gone with the accused Sanjay Singh then the material question which arises why did she attempt to commit suicide on two occasions after State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 32 this incident. It is this which indicated that there was much more than met the eye. From the evidence which has come on record it is writ large that the accused Sanjay and the minor prosecutrix were having a long love relationship and on the date of incident the prosecutrix had gone with the accused Sanjay and this was on account of the inducement, allurement and pressure exerted upon her by the accused (Sanjay) who despite his marriage wanted to continue himself with the minor prosecutrix and would not let her live in peace which fact the accused himself has admitted. (49) After having gone through the statement made by the prosecutrix in the Court, the matter would have ended there but for two reasons. Firstly, the prosecutrix was a minor (below 18 years of age) and at the time of the incident had just arrived at the age of consent (being hardly 16 ½ years of age) whereas the accused Sanjay as on date was around 22 years of age and therefore, admittedly at the time when for the first time he and the prosecutrix had started their affair, the prosecutrix 'M' was hardly 1213 years of age whereas he himself would have been 1920 years of age and hence the relationship being exploitative. Secondly, it was revealed from the testimony of the prosecutrix that she had also attempted to commit suicide on two occasions. Further, one of the accused i.e. Rajender Singh the father of the accused Sanjay was an official of the Delhi Police and this being the background the Addl. PP for the State State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 33 on 21.8.2012 having specifically brought this to the notice of this court and the fact that the prosecutrix appeared to have been won over and primafacie having committed an offence under Chapter IX of Indian Penal Code, may be required to be proceeded against and hence, on his request the SHO concerned was directed to take a note of it and keep a track of her address.
(50) While the trial was at the verge of conclusion of final arguments, it is then that the wife of the accused Sanjay Singh namely Heena appeared in the Court and there was a twist in the case. In the presence of the prosecutrix and the accused, she informed the court that she was married to the accused Sanjay Singh (who was having an affair with the prosecutrix) while she after the present incident and case had been thrown out of the house by him. This court taking a note of these subsequent developments observed that while on the one hand the prosecutrix 'M' a minor was all out to protect the accused Sanjay Singh during the trial at the risk of exposing herself to prosecution for perjury and not supporting her earlier version whereas on the other hand this aspect of the accused Sanjay Singh being already married with a wife with whom he had been consummated the marriage before he had eloped with the prosecutrix, had been concealed from the court.
(51) It became clear that the accused Sanjay Singh who was initially having an affair with the prosecutrix 'M' had in the State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 34 meanwhile got married to Heena (who has not been cited as a witness) and thereafter despite his marriage to Heena he again started making contact with the minor prosecutrix 'M'. He was fraudulently maintaining relations with both by keeping both of them in dark. I have no hesitation in observing that Heena was examined by me in the Court as a Court Witness deliberately under the peculiar circumstances of the case to enable the truth to emerge. It not only became necessary for this Court to expose the young prosecutrix 'M' with the true character of the accused Sanjay Singh but it was equally necessary for his wife (Heena who is now at her parents house) to be made aware of the happenings in the Court as they directly affect her rights and life. Hence, observing that Heena was the best independent witness who could have explained and proved the circumstances due to which her examination was essential for a just decision of the case, in exercise of its powers under Section 311 Cr.P.C. examination Heena as a Court witness as CW1. (52) Heena (CW1) has in her testimony before this Court stated that she is married to the accused Sanjay and during this period of her marriage the accused had consummated their marriage (made relations with her). She has deposed that on 15.10.2011 Sanjay had suddenly left the house and returned back after about 10 days and during this period she came to know that he eloped with the prosecutrix 'M' because the mother of the prosecutrix had come to State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 35 their house and raised a hue and cry. Heena has further told the court that thereafter when Sanjay came out of the jail he did maarpitai with her on some false pretext and ever since she is residing with her father as he is not ready to willing to keep her. She has also stated that the accused Sanjay is not ready and willing to keep her. Heena (CW1) has not been crossexamined by the accused despite opportunity and hence her entire testimony has gone uncontroverted and unrebutted.
(53) It was only after the examination of Heena as court witness (CW1), that it became absolutely clear why the prosecutrix had turned hostile during her examination and was not supporting her earlier version. Perhaps she felt convinced that the accused would now marry her after divorcing his wife Heena. This being so additional charge under Section 420 IPC was framed against the accused and an opportunity was given to the accused for further examination of the prosecution witnesses which he declined. The prosecution on its behalf only wanted to additionally examine the prosecutrix 'M' which was permitted and the prosecutrix 'M' was thereafter examined again. It is then that the true facts emerged. In her further examination the prosecutrix 'M' was asked why she had gone with the accused Sanjay on which the prosecutrix explained that she was in deep love with Sanjay who assured her that he would marry her because he was not having good terms with his wife Heena State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 36 and had no relations with her. The prosecutrix has further informed the court that the accused Sanjay kept her in the dark (mujhe dhokhe mie rakha). She also informed the court that the accused Sanjay had told her that his wife wanted to take divorce from him and even he wanted to divorce her and thereafter he would marry her (prosecutrix). However, when specifically asked by the court that when there were no proceedings regarding divorce of Sanjay and his wife, then why she went to him, to which the prosecutrix explained that Sanjay used to call her again and again and told her that he was fed up with his wife and mother and both used to tell him that he should leave the house and everyday there was some quarrel or the other. She has stated that the accused Sanjay used to pester and harass her almost everyday and insisted for marriage and this was the reason she went with him. The prosecutrix 'M' has further deposed that the accused Sanjay had taken her to Meerut where he kept her in somebody's house and during this period she repeatedly told Sanjay that she wanted to go back home but he did not agree and enticed her saying that his mother (Shashi) had consenting to their marriage and hence after their marriage he would keep her in his village. She has further told the court that during this period she even told Sanjay that she wanted to go back but he forcibly detained her. When further asked how she came back, she explained that police had come to the house of Sanjay at Delhi and when he came to know about the same, State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 37 he brought her back to Delhi.
(54) These aspects which figured in the additional statement of the prosecutrix 'M' and the statement of Heena (wife of accused Sanjay Singh examined in the court as CW1) have clinched the entire issue and exposed the lies of the accused Sanjay Singh. It became clear that the prosecutrix 'M' was being given to understand throughout that the accused would divorce his wife and marry her and it is only after the examination of Heena (CW1) and the further examination of the prosecutrix 'M', that the truth emerged. (55) When the accused Sanjay was confronted with the above evidence, he admitted all the above aspects. He admitted that he had eloped with the prosecutrix 'M' after which her mother had come to his house and created a scene. He also admitted that after his marriage with Heena, he again contacted the prosecutrix and insisted upon continuing his relationship on the pretext that he was fed up with his wife Heena and wanted to divorce her and even Heena wanted to divorce him (accused) and that he allured and enticed the prosecutrix 'M' by regularly calling her on telephone and telling her that he was fed up with his marriage and wanted to marry her (prosecutrix) and even his family was agreeable to the same. He further admitted that he enticed the prosecutrix to accompany her to Baghpat and then to Meerut when he kept her in a village in the house of some unknown person for 810 days and during the period State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 38 continued to promise her that he will be marrying her. The said questions put to the accused under Section 313 Cr.P.C. along with the answers is reproduced as under:
Q1.: It is in evidence against you that your wife Heena has been examined in the court as court witness CW1 and she has alleged that you had eloped with the prosecutrix Manisha which fact she come to know when the mother of Manisha came to their house and raised a hue and cry and during this period you sold the gold ring given to you in the marriage after which there was a dispute and she (Heena) was physically assaulted by you and ever since Heena is residing at her father's house. Heena has also alleged that as on date you are not ready and willing to maintain any matrimonial relationship with her. What you have to say about it?
Ans: It is correct that I had eloped with Manisha after which her mother had come to our house and created a scene but it is wrong to suggest that I had sold the gold ring given in the marriage. The said gold ring is with my wife Heena. It is correct that I do not wish to maintain any matrimonial relationship with my wife Heena. "hamari bilkul banti nahi hai".
Q2.: It is in evidence against you that according to PW11 Manisha you were having an affair with her and after your marriage with Heena, you again contacted her (Manisha) and insisted upon continuing your relations with her on the pretext that you was fed up with your wife Heena and wanted to divorce her and even Heena wanted to divorce you. You also allured and enticed Manisha by regularly calling her upon telephone and telling her that you were fed up with your marriage and wanted to marry her and that even your family was agreeable to the same. Thereafter, you enticed her (Manisha) to accompany you to Baghpat and then to Meerut where you kept her in a village in the house of some of your known person for 810 days and during this period you continued to promise her State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 39 that you will be marrying her. What you have to say about it? Ans. It is correct.
Q3.: It is in evidence against you that according to PW11 Manisha during the period you kept her in a village in Meerut, you did not disclose to her the name that village and also the name of person in whose house she was kept by you and despite her repeated insistence you did not permit her to go back to her house and forcibly detained her there. What you have to say about it?
Ans. It is correct that we stayed in a village at Meerut but Manisha is telling a lie. She never asked me to take her back to her house at any point of time.
(This court has observed that the accused appears to be totally mischievous. He is deliberately concealing the name of the person in whose house and the name of the village in which he had kept the prosecutrix Manisha and is repeatedly saying "dhyan nahi aa raha", despite being told that it can be read against him this fact being within his special knowledge.) (56) The sequence of events as they now emerge are as under:
➢ That the accused Sanjay Singh and the prosecutrix 'M' were known to each other for about three to four years prior to the incident being in love.
➢ That the prosecutrix at the time of the commencement of the alleged affair was hardly aged 1213 years while the accused Sanjay was 1920 years.
➢ That the prosecutrix 'M' was hardly aged 16½ years at the time of the incident, when she eloped with the accused; that State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 40 despite his love affair with the prosecutrix 'M', the accused Sanjay Singh got married to one Heena and after a few months of his marriage he again wanted to revive and resume his relations with the prosecutrix 'M' and started contacting her. ➢ That on the one hand the accused Sanjay Singh had consummated his marriage with his wife Heena whereas on the other hand he again attempted to revive and resume his relations with the minor prosecutrix and allured/ enticed her by claiming his love for her (prosecutrix) and promising her marriage on the ploy that he was not having good relations with his wife Heena and wanted to divorce her (Heena) and that even Heena wanted to divorce him.
➢ That at the time of the incident the accused Sanjay Singh on one hand deceived his wife Heena and informed her that he was going to Haridwar whereas on the other hand on the promise and pretext of marriage repeatedly pestered and allured the minor prosecutrix 'M' to accompany him.
➢ That the accused Sanjay Singh also assured the prosecutrix that his mother was agreeable to his relationship with the prosecutrix 'M' and that after their marriage he would keep her (prosecutrix 'M') in his native village.
➢ That before actually eloping with the minor prosecutrix the accused Sanjay Singh made regular telephone calls to the State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 41 prosecutrix and pestered her and insisted upon the marriage (despite his being married to Heena and maintaining relations with his wife) by making her to believe that he was going to divorce Heena and after enticing the prosecutrix, took her to various places i.e. Baghpat and Meerut where he kept her in a house for nine to ten days.
➢ That during this period of stay at Meerut the prosecutrix repeatedly told the accused that she wanted to go back home but he did not permit her and forcibly detained her against her wishes and it was only when he came to know that police had come at his house in Delhi, he brought her back to Delhi after which he was arrested in the present case.
➢ That after his release from the jail, the accused Sanjay Singh started harassing his wife Heena and even physically assaulted her after which Heena left his house and has now started living with her father as the accused refused to keep her or permit her to join his company.
➢ That on the other hand the prosecutrix 'M' perhaps realizing the truth tried to commit suicide on two occasions (as told by her to this court).
➢ That according to the prosecutrix 'M' the accused Sanjay Singh had misled and cheated her (perhaps this is the reason why the prosecutrix being heart broken had attempted to commit State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 42 suicide).
(57) In cases such as this involving intricate human relationships there is rarely any cogent or tangible proof to establish/ prove the existence of a criminal intention which has to be gathered, deciphered or inferred from circumstances.
(58) The Hon'ble Mr. Justice Pradeep Nandrajog in the case of Ashok Rai @ Amit vs. State, Criminal Appeal No. 389/2008 decided on 9.2.2009, by placing his reliance on the judgments in the cases of Uday Vs. State of Karnataka reported in 2003 (4) SCC 46 and Jayanti Rani Panda Vs. State of West Bengal and Anr. reported in 1984 Crl. LJ 1535; has very succinctly culled out the law relating to cheating in such cases and has observed that:
"........ While we reiterate that a promise to marry without anything more will not give rise to misconception of fact within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent......."
(59) It is evident that there is no straitjacket formula which can be evolved for determining whether the consent was given under a misconception of fact or not and it has to be deciphered from the State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 43 facts and circumstances of each case.
(60) 'Deception' is a trait of an individual and one who is deceptive by nature generally spares none as is the case with the accused in the present case. By and large, deception is a civil wrong but it becomes criminal when it infringes upon the right of another and the Indian Penal Code recognizes this as an offence when the consent of the victim is obtained by fraud or deception and the victim does something which he/ she would not have under ordinary circumstances done but for such fraud or deception. Every citizen of this Country has a fundamental right to live a life free from emotional, psychological and mental distress and deception caused by acts of another. Of course, it is expected of each person to exercise due diligence as any reasonable person would under the given circumstances but the statutory law of our Country provides for an exception in case of minors. Any consent obtained under fraud, misconception or deception is tainted and in case of a minor the paramount consideration is protection of the interest of such minor and this is required to be strictly construed by the Courts. The accused Sanjay Singh on his part betrayed the trust and deceived one and all, be it his own family or the prosecutrix. He has deceived his former girl friend (prosecutrix 'M'), his own wife (Heena) and also his parents.
State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 44 (61) It is writ large from the evidence which has come on record as discussed herein above that when the affair of the accused Sanjay and the prosecutrix 'M' started, the accused Sanjay was about 1920 years of age whereas the prosecutrix was hardly 1213 years of age. She was at a tender and vulnerable age and taking advantage of the same, was exploited by the accused. Admittedly the accused was not married at the relevant time but thereafter while he was still into a relationship with the minor prosecutrix he got married to Heena. After about some months of the marriage he again wanted to revive and resume his relationship with the prosecutrix 'M' who was hardly aged 16 - 16½ years of age at that time claiming that he was having estranged relations with his wife and claiming that he and his wife Heena were not getting along well and were going to divorce each other. He on the one hand was maintaining relations with his wife Heena whereas on the other hand he allured and enticed the minor prosecutrix 'M' and insisted upon reviving and resuming his relationship with her. At the time of the incident, he on the one hand told his wife that he was going to Haridwar whereas on the other hand he made the minor prosecutrix 'M' elope with him on allurement and promise of marriage by making her believe that he was fed up with his wife and was going to divorce her and that even his family was agreeable to the same and after marriage he would kept her in his native village. Therefore, the State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 45 accused took her to various places including Baghpat and Meerut where he kept her. According to the prosecutrix 'M' she during this period was wanting to come back to her house which he did not permit.
(62) The accused Sanjay Singh has specifically admitted that he had eloped with the prosecutrix 'M' but has denied that the prosecutrix had ever asked her to take her back to her house. This Court is not convinced by this denial of Sanjay Singh. Had that been so, then the prosecutrix 'M' immediately after her return to Delhi on her recovery, would not have made specific allegations against him before the Ld. MM and also attempted suicide on two occasions. The facts of this case speaks for themselves. After his return the accused Sanjay Singh used physical force upon his wife and threw her out of his house and perhaps in order to win the trust of the prosecutrix during the trial and this he did knowingfully well that he was into a relationship with his wife Heena and there was no possibility of obtaining a one sided divorce. It is this behaviour of the accused which is deceitful. He has cheated on the emotions of both the prosecutrix and his wife. The minor prosecutrix 'M' being of tender and vulnerable age has been carried away and allured by his sweet talk and his wife never suspected him.
(63) It makes me ponder as to what kind of a love lust relationship is this where one pushes another to a brink. The State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 46 prosecutrix 'M' must be truly in love with the accused for despite all that he (accused) has done to her, the prosecutrix 'M' during the trial has gone all out to protect him even at the cost of incurring the risk of being hauled up for perjury and has even tried to end her life on two occasions. The accused however cannot be permitted to get away with his lustful relationship and deceit in the name of love. What is this kind of a madness where one looses one's senses of reason and discretion and ruin the life of another. All this is impermissible in the name of a love relationship. First the accused played with the emotions of the prosecutrix. He, despite his alleged love relationship with the prosecutrix, married another (Heena) leaving the prosecutrix 'M' heart broken and shattered and as if this was not enough he after the consummation of his marriage, again wanted to revive and resume his relationship with the prosecutrix 'M' on the pretext of love. It may be noted that both the accused and the prosecutrix belong to a humble background, conservative community and are residing in a rural area (urbanized village). How could accused Sanjay Singh be so insensitive to the feelings of the prosecutrix if he was so much in love with her? If he was then why did he consent to marry Heena? If he did then why he consummated his marriage with Heena? Thereafter having done so why he again made contact with a minor prosecutrix to revive State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 47 and resume his lustful relationship with her on the pretext of love? On the face of it the accused is not so innocent. (64) What the accused has done is morally unpardonable and legally punishable. Emotional exploitation and treachery in human relations is not tolerated in any civilized society and is punishable under our Legal System. The accused Sanjay Singh is a mature adult being fully aware of the legal consequences of his act first cheated the minor prosecutrix when he developed close friendly rather love relations with her despite which chose to marry another (Heena) in gross indifference to the feelings of the minor prosecutrix 'M'. He thereafter consummated his marriage with his wife Heena but again after a few months taking advantage of the soft feelings and emotions of the minor prosecutrix 'M' towards him again started pestering her and persisted upon her to revive and resume her relationship with him by falsely claiming that he had no relations with his wife and they both wanted to divorce each other (forgetting the sanctity of his marriage with Heena). He did not stop at that. Taking advantage of the tender and vulnerable age of the prosecutrix 'M' and her immature understanding and by emotionally and psychologically exploiting her feelings, he again allured and enticed her to accompany him on promise of marriage, claiming that his family particularly his mother was agreeable to his marriage with the prosecutrix (knowing the same to be false). In fact the accused State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 48 virtually got away with all this and had it not been for the presence of Heena (wife) in the Court, his lies and the tricks that he played would not have been exposed and truth would never have emerged and it is then that both the prosecutrix 'M' and his wife Heena realized that they had taken for a ride by the accused and I am pained to observe that both these young girls suffered the burnt of it. The prosecutrix 'M' attempted to end her life on two occasions being totally shattered and his wife Heena is now deserted at this young age of 19 years within a few months of marriage and is back to her father's house. (65) The accused Sanjay Singh has taken the risk and now is fully responsible of its consequences, particularly in case of the prosecutrix 'M' who even as on date is a minor and at the time of the incident was about 16½ years of age and at the time of their relations had first commenced, was hardly 1213 years of age. Having taken away the prosecutrix without permission of her lawful guardians/ mother, the accused Sanjay Singh has committed the offence under Section 363 Indian Penal Code and having done so on the allurement, inducement and by making claims of marriage knowing fully that he himself was married to Heena and had consummated his marriage with her, he cheated the prosecutrix 'M' (as also his own wife Heena), which makes him liable for the offence under Section 363 read with Section 420 Indian Penal Code.
State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 49 Allegations against the accused Rajender Singh, Shashi and Tina @ Seema:
(66) The case of the prosecution against the accused Rajinder Singh, Shashi and Tina @ Seema is that Tina had mixed some intoxicating substance in the tea of the prosecutrix 'M' and thereafter she was kidnapped by the accused Rajinder Singh and Shashi and had forcibly detained her at Meerut where the accused Sanjay Singh made physical relations with her against her wishes. The star witness of the prosecution i.e. prosecutrix having turned hostile on the aforesaid aspect and now disclosing the true story before the court regarding her affair with the accused who expresses his love for her and thereafter alluring her took her to Meerut where they stayed for eight to ten days, I hereby hold that the prosecution has not been able to prove and substantiate the allegations in so far as the accused Rajinder Singh, Shashi and Tina @ Seema are concerned and benefit of doubt is required to be given to them.
FINAL CONCLUSION:
(67) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 50 The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(68) Applying the above principles of law to the facts of present case, it is evident that the investigations conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. On the basis of the testimonies of the various witnesses, medical and forensic evidence on record, the following facts stand established:
➢ That the accused Sanjay Singh and the prosecutrix 'M' were known to each other for about three to four years prior to the incident being in love.
➢ That the prosecutrix at the time of the commencement of the alleged affair was hardly aged 1213 years while the accused Sanjay was 1920 years.
State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 51 ➢ That the prosecutrix 'M' was hardly aged 16½ years at the time of the incident, when she eloped with the accused; that despite his love affair with the prosecutrix 'M', the accused Sanjay Singh got married to one Heena and after a few months of his marriage he again wanted to revive and resume his relations with the prosecutrix 'M' and started contacting her. ➢ That on the one hand the accused Sanjay Singh had consummated his marriage with his wife Heena whereas on the other hand he again attempted to revive and resume his relations with the minor prosecutrix and allured/ enticed her by claiming his love for her (prosecutrix) and promising her marriage on the ploy that he was not having good relations with his wife Heena and wanted to divorce her (Heena) and that even Heena wanted to divorce him.
➢ That at the time of the incident the accused Sanjay Singh on one hand deceived his wife Heena and informed her that he was going to Haridwar whereas on the other hand on the promise and pretext of marriage repeatedly pestered and allured the minor prosecutrix 'M' to accompany him.
➢ That the accused Sanjay Singh also assured the prosecutrix that his mother was agreeable to his relationship with the prosecutrix 'M' and that after their marriage he would keep her (prosecutrix 'M') in his native village. State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 52 ➢ That before actually eloping with the minor prosecutrix the accused Sanjay Singh made regular telephone calls to the prosecutrix and pestered her and insisted upon the marriage (despite his being married to Heena and maintaining relations with his wife) by making her to believe that he was going to divorce Heena and after enticing the prosecutrix, took her to various places i.e. Baghpat and Meerut where he kept her in a house for nine to ten days.
➢ That during this period of stay at Meerut the prosecutrix repeatedly told the accused that she wanted to go back home but he did not permit her and forcibly detained her against her wishes and it was only when he came to know that police had come at his house in Delhi, he brought her back to Delhi after which he was arrested in the present case.
➢ That after his release from the jail, the accused Sanjay Singh started harassing his wife Heena and even physically assaulted her after which Heena left his house and has now started living with her father as the accused refused to keep her or permit her to join his company.
➢ That on the other hand the prosecutrix 'M' perhaps realizing the truth tried to commit suicide on two occasions (as told by her to this court).
State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 53 ➢ That according to the prosecutrix 'M' the accused Sanjay Singh had misled and cheated her (perhaps this is the reason why the prosecutrix being heart broken had attempted to commit suicide).
➢ That the accused Sanjay had taken away the prosecutrix without permission of her lawful guardians/ mother which he did by alluring, inducing and by making claims of marriage to the prosecutrix 'M' knowing fully that he himself was married to Heena and had consummated his marriage with her. (69) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(70) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution in so far as the offence under Section 363 and Section 420 Indian Penal Code State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 54 are concerned. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witness of the prosecution have been able to built up a continuous link in so far as the offence under Section 363 and Section 420 Indian Penal Code are concerned. (71) However, it does not stands established that the accused Sanjay Singh and Tina @ Seema had offered/ administered biscuit and tea to the prosecutrix 'M'; that the accused Sanjay Singh had committed forcible sexual intercourse with the prosecutrix; that the accused Sanjay Singh committed criminal intimidation to the prosecutrix 'M'; that the accused Rajender Singh and Shashi abetted the accused Sanjay Singh to kidnap the prosecutrix and to commit intercourse with her against her will; that the accused Rajender Singh has threatened the prosecutrix to kill her; that the accused Sanjay Singh, Rajender Singh and Shashi had wrongly confined the prosecutrix 'M' and also gave her beatings.
(72) In view of the above, I hereby hold the accused Sanjay Singh guilty of the offence under Section 420 read with Section 363 Indian Penal Code for which he is accordingly convicted. However, the accused is hereby acquitted of the charges under Section State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 55 328/376/506/342/323 Indian Penal Code.
(73) In so far as the accused Rajinder Singh, Shashi and Tina @ Seema are concerned, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also not consistent only with the hypothesis of the guilt of the accused Rajinder Singh, Shashi and Tina @ Seema. There is nothing on record to definitely establish which of the accused (Rajinder Singh, Shashi and Tina @ Seema) actually committed the offence and who did not participate in the crime. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the guilt of these accused persons (Rajinder Singh, Shashi and Tina @ Seema) and the materials brought on record by the prosecution are insufficient to hold that each of these accused are guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused namely Rajinder Singh, Shashi and Tina @ Seema. Crucially, the materials and evidence on record do not bridge the gap between "may be true" and must be true" so essential for a court to cross, while finding the guilty of an accused. (74) This being the background, the accused Rajinder Singh and Shashi are hereby acquitted of the charges under Section State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 56 363/109/506/376/342/323. Further, the accused Tina @ Seema is also hereby acquitted of the charge under Section 328 Indian Penal Code. The sureties of accused Rajinder Singh, Shashi and Tina @ Seema, be discharged as per rules.
(75) The convict Sanjay Singh is directed to be taken into custody. Be listed for arguments on sentence qua the convict Sanjay Singh on 9.10.2012.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 01.10.2012 ASJ (NW)II: ROHINI
State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 57
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 13/2012
Unique Case ID: 02404R0041192012
State Vs. (1) Sanjay Singh
S/o Rajender Singh
R/o House No. 174, Gali No. 3
Tomar Colony, Burari, Delhi.
(Convicted)
(2) Rajender Singh
S/o Chhitar Singh
R/o House No. 174, Gali No. 3
Tomar Colony, Burari, Delhi.
(Acquitted)
(3) Shashi Devi
W/o Rajender Singh
R/o House No. 174, Gali No. 3
Tomar Colony, Burari, Delhi.
(Acquitted)
(4) Tina @ Seema
W/o Amit
C/o Prempal Rana,
House No. D754, Gali No. 4,
Nathupura, Delhi.
Also at: House No. 23, Gali No. 2
Ibrahim Pur, Delhi.
(Acquitted)
State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 58
FIR No. : 163/2011
Police Station : Swaroop Nagar
Under Section : 363/376/506/109/349/323 IPC
Date of Judgment: 01.10.2012
Arguments concluded on: 15.10.2012
Date of sentence: 17.10.2012
APPEARANCE:
Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.
Convict Sanjay Singh in judicial custody with Sh. Jitender Tyagi Advocate.
ORDER ON SENTENCE:
Vide my separate detailed judgment dated 1.10.2012 the accused Sanjay Singh has been held guilty of the offence under Section 363 and 420 Indian Penal Code. However, he has been acquitted of the offence under Section 328/376/506/342/323 Indian Penal Code. Further, the accused Rajinder Singh and Shashi have been acquitted of the charges under Section 363/ 109/ 506/ 376/ 342/ 323 Indian Penal Code. Also, the accused Tina @ Seema has been acquitted of the charge under Section 328 Indian Penal Code.
This case is a saga of Love, Lust and Lies. The case as set out initially by the prosecution in the charge sheet is different to the State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 59 truth which emerged later. It was alleged that from 15.2.2011 to 19.10.2011 at B2/2, Shastri Park, Main Road, Burari, Delhi, the accused Sanjay Singh and Tina @ Seema offered/ administered biscuit and tea to the prosecutrix 'M' aged about 16½ years and thereafter the accused Sanjay Singh took her to Meerut and kept her in a Hotel and took her to a village and committed sexual intercourse with her forcibly without her consent. It has further been alleged that on 17.10.2011 and onwards the accused Sanjay Singh committed forcible sexual intercourse and also removed her clothes with intent to insult her modesty and committed criminal intimidation to her while the coaccused Rajender Singh and Shashi abetted him (Sanjay Singh) to kidnap the prosecutrix and to commit intercourse with her against her will. It has also been alleged that the accused Rajender Singh had threatened the prosecutrix to kill her and the accused Sanjay Singh, Rajender Singh and Shashi had wrongly confined the prosecutrix 'M' in a room from 15.10.2011 to 17.10.2011 and also gave her beatings.
On the basis of the testimonies of the various witnesses particular the Prosecutrix 'M' and the Court Witness Heena and also on the basis of the other circumstantial evidence on record, a version different to the one initially alleged, emerged wherein it was revealed that the accused Sanjay Singh had fraudulently or dishonestly induced the prosecutrix 'M' to elope with him on the pretext and State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 60 promise to marry her after divorcing his wife Heena (knowing it to be false) with whom he claimed that he had no relations and thereby deceived the prosecutrix 'M'.
Vide a detailed judgment dated 1.10.2012 this Court has held that the identity of all the accused namely Sanjay Singh, Rajinder Singh, Shashi and Tina @ Seema stood established. It was also observed by the Court that it stood established that the accused Sanjay Singh and the prosecutrix 'M' were known to each other for about three to four years prior to the incident being in love; that the prosecutrix at the time of the commencement of the alleged affair was hardly aged 1213 years while the accused Sanjay was 1920 years; that the prosecutrix 'M' was hardly aged 16½ years at the time of the incident, when she eloped with the accused; that despite his love affair with the prosecutrix 'M', the accused Sanjay Singh got married to one Heena and after a few months of his marriage he again wanted to continue his relations with the prosecutrix 'M' and started contacting her; that on the one hand the accused Sanjay Singh had consummated his marriage with his wife Heena whereas on the other hand he again attempted to revive and resume his relations with the minor prosecutrix and allured/ enticed her by claiming his love for her (prosecutrix) and promising her marriage on the ploy that he was not having good relations with his wife Heena and wanted to divorce her (Heena) and that even Heena wanted to divorce him; that State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 61 at the time of the incident the accused Sanjay Singh on one hand deceived his wife Heena and informed her that he was going to Haridwar whereas on the other hand on the promise and pretext of marriage repeatedly pestered and allured the minor prosecutrix 'M' to accompany him; that the accused Sanjay Singh also assured the prosecutrix that his mother was agreeable to his relationship with the prosecutrix 'M' and that after their marriage he would keep her (prosecutrix 'M') in his native village; that before actually eloping with the minor prosecutrix the accused Sanjay Singh made regular telephone calls to the prosecutrix and pestered her and insisted upon the marriage (despite his being married to Heena and maintaining relations with his wife) by making her to believe that he was going to divorce Heena and after enticing the prosecutrix, took her to various places i.e. Baghpat and Meerut where he kept her in a house for nine to ten days; that during this period of stay at Meerut the prosecutrix repeatedly told the accused that she wanted to go back home but he did not permit her and forcibly detained her against her wishes and it was only when he came to know that police had come at his house in Delhi, he brought her back to Delhi after which he was arrested in the present case; that after his release from the jail, the accused Sanjay Singh started harassing his wife Heena and even physically assaulted her after which Heena left his house and has now started living with her father as the accused refused to keep her or permit her to join his State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 62 company; that on the other hand the prosecutrix 'M' perhaps realizing the truth tried to commit suicide on two occasions (as told by her to this court); that according to the prosecutrix 'M' the accused Sanjay Singh had misled and cheated her (perhaps this is the reason why the prosecutrix being heart broken had attempted to commit suicide).
Vide judgment dated 1.10.2012 this Court observed that it did not stand established that the accused Sanjay Singh and Tina @ Seema had offered/ administered biscuit and tea to the prosecutrix 'M'; that the accused Sanjay Singh had committed forcible sexual intercourse with the prosecutrix; that the accused Sanjay Singh committed criminal intimidation to the prosecutrix 'M'; that the accused Rajender Singh and Shashi abetted the accused Sanjay Singh to kidnap the prosecutrix and to commit intercourse with her against her will; that the accused Rajender Singh has threatened the prosecutrix to kill her; that the accused Sanjay Singh, Rajender Singh and Shashi had wrongly confined the prosecutrix 'M' and also gave her beatings.
In view of the above the accused Sanjay Singh has been held guilty of the offence under Section 363 and Section 420 Indian Penal Code and accordingly convicted but acquitted of the charges under Section 328/376/506/342/323 Indian Penal Code. The accused State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 63 Rajinder Singh and Shashi have been acquitted of the charges under Section 363/ 109/ 506/ 376/ 342/ 323 Indian Penal Code and the accused Tina @ Seema has been acquitted of the charge under Section 328 Indian Penal Code.
Heard arguments on the point of sentence. The convict Sanjay Singh as on date is 23 years of age and is 11th class pass and is stated to be a Financier by profession. He has a family comprising of his wife (whom he has deserted as observed by this Court), father who is a Head Constable in Delhi Police, mother and one married sister. Ld. Counsel for the convict has vehemently argued that the convict has no previous record and has already remained in judicial custody for about 3½ months. According to the Ld. Counsel keeping in view the young age of the convict, a lenient view be taken against him.
The Ld. Addl. Public Prosecutor on the other hand has prayed for a strict punishment keeping in view the allegations against the convict particularly since the convict has played with the lives of two young women i.e. the prosecutrix 'M' a minor who was hardly 16½ of age at the time of the incident and his own wife Heena hardly aged 19 years. He submits that the convict is a mischievous person who is not even under the control of his parents as is now evident from the fact that while his parents want him to settle down with his wife, he is not agreeable to the same and is violent towards her State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 64 whereas on the other hand he wants to resume and continue his relations with the minor prosecutrix 'M' on account of which the prosecutrix has even attempted suicide on two occasions.
This Court on 9.10.2012 had directed the Investigating Officer to file a report regarding the present position and status of the victim (prosecutrix 'M') and IO SI Vineeta Prashad has reported that after the incident the prosecutrix 'M' is no longer studying and was pulled out of school. She has submitted that her family has now fixed her marriage with some distant relation which marriage is likely to be solemnized in the month of January or February of the next year (i.e. 2013).
I may also observe that 'Deception' is a trait of an individual and one who is deceptive by nature generally spares none as is the case with the convict in the present case. By and large, deception is a civil wrong but it becomes criminal when it infringes upon the right of another and the Indian Penal Code recognizes this as an offence when the consent of the victim is obtained by fraud or deception and the victim does something which he/ she would not have under ordinary circumstances done but for such fraud or deception. Every citizen of this Country has a fundamental right to live a life free from emotional, psychological and mental distress and deception caused by acts of another. Of course, it is expected of each person to exercise due diligence as any reasonable person would State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 65 under the given circumstances but the statutory law of our Country provides for an exception in case of minors. Any consent obtained under fraud, misconception or deception is tainted and in case of a minor the paramount consideration is protection of the interest of such minor and this is required to be strictly construed by the Courts. The convict on his part betrayed the trust and deceived one and all, be it his own family or the prosecutrix. He has deceived his former girl friend (prosecutrix 'M'), his own wife (Heena) and also his parents.
It makes me ponder as to what kind of a love lust relationship is this where one pushes another to a brink. The prosecutrix 'M' must be truly in love with the convict for despite all that he (convict) has done to her, the prosecutrix 'M' during the trial has gone all out to protect him even at the cost of incurring the risk of being hauled up for perjury and has even tried to end her life on two occasions. The convict however cannot be permitted to get away with his lustful relationship and deceit in the name of love. What is this kind of a madness where one looses one's senses of reason and discretion and ruin the life of another. All this is impermissible in the name of a love relationship. First the convict played with the emotions of the prosecutrix. He, despite his alleged love relationship with the prosecutrix, married another (Heena) leaving the prosecutrix 'M' heart broken and shattered and as if this was not enough he after State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 66 the consummation of his marriage, again wanted to revive and resume his relationship with the prosecutrix 'M' on the pretext of love. It may be noted that both the convict and the prosecutrix belong to a humble background, conservative community and are residing in a rural area (urbanized village). How could convict Sanjay Singh be so insensitive to the feelings of the prosecutrix if he was so much in love with her? If he was then why did he consent to marry Heena? If he did then why he consummated his marriage with Heena? Thereafter having done so why he again made contact with a minor prosecutrix to revive and resume his lustful relationship with her on the pretext of love? On the face of it the convict is not so innocent.
What the convict has done is morally unpardonable and legally punishable. Emotional exploitation and treachery in human relations is not tolerated in any civilized society and is punishable under our Legal System. The convict Sanjay Singh is a mature adult being fully aware of the legal consequences of his act first cheated the minor prosecutrix when he developed close friendly rather love relations with her despite which chose to marry another (Heena) in gross indifference to the feelings of the minor prosecutrix 'M'. He thereafter consummated his marriage with his wife Heena but again after a few months taking advantage of the soft feelings and emotions State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 67 of the minor prosecutrix 'M' towards him again started pestering her and persisted upon her to revive and resume her relationship with him by falsely claiming that he had no relations with his wife and they both wanted to divorce each other (forgetting the sanctity of his marriage with Heena). He did not stop at that. Taking advantage of the tender and vulnerable age of the prosecutrix 'M' and her immature understanding and by emotionally and psychologically exploiting her feelings, he again allured and enticed her to accompany him on promise of marriage, claiming that his family particularly his mother was agreeable to his marriage with the prosecutrix (knowing the same to be false). In fact the convict virtually got away with all this and had it not been for the presence of Heena (wife) in the Court, his lies and the tricks that he played would not have been exposed and truth would never have emerged and it is then that both the prosecutrix 'M' and his wife Heena realized that they had taken for a ride by the convict and I am pained to observe that both these young girls suffered the burnt of it. The prosecutrix 'M' attempted to end her life on two occasions being totally shattered and his wife Heena is now deserted at this young age of 19 years within a few months of marriage and is back to her father's house.
I may observe that of late physical/ sexual exploitation of woman particularly minors is on the increase where women are treated as commodity showing little or no concern for her honour and State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 68 dignity. It is in this background that this court is required to treat the issue with more sensitivity. The object of sentence is not only required to be reformative but it should also be punitive, preventive and deterrent. The Indian Legal System is designed to protect the interest of the minors. The convict has messed with the lives of two young girls (one of whom is still a minor) and he deserves no mercy. Courts of Law are under an obligation to protect the interest of minors particularly young girls. It is necessary to ensure that any person who subject the young girls of tender, vulnerable and impressionable age with immature understanding to any kind of exploitation whether mental, emotional, psychological and physical are taken to task. Any person who does not value the life of another deserves no mercy and the convict Sanjay Singh in the present case who is the cause of misery in the life of two young girls (one of whom is a minor) certainly deserves no indulgence.
In view of the above, I award the following punishment to the convict Sanjay Singh:
1. For the offence under Section 363 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Three Years. and fine to the tune of Rs.10,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 15 days.
State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 69
2. For the offence under Section 420 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Three Years and fine to the tune of Rs.10,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 15 days.
Both the sentences shall run concurrently. Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial, as per rules.
The convict has been informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached along with his jail warrants.
File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU) Dated: 17.10.2012 ASJ (NW)II: ROHINI State Vs. Sanjay Singh etc., FIR No. 163/2011, PS Swaroop Nagar Page 70