Delhi District Court
Counsel Has Referred To Decisions In ... vs . State on 10 June, 2008
-:1:-
IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE, FAST TRACK COURTS,
ROHINI : DELHI
SC No. 113/2 (RBT)
Date of institution of the case: 07/03/2007
Date for reservation of Order: 10th of June, 2008
Date of Decision: 10th of June, 2008
STATE
Versus
EHTESHAM
S/o Sh. Mohd. Muzahid
R/o Village Chakyadav,
P.S. Baligaon, Post Dargabela,
District Vaishali, Bihar.
.... Accused
FIR No. 786/06
PS- Rajouri Garden
u/s. 363, 366, 376 IPC
JUDGMENT
First the facts Accusation leveled against the accused is that on 30.07.2006 at about 3 p.m., he kidnapped the prosecutrix, aged 14 years, a student of 10th standard and then committed rape on her -:2:- during the period from 30.07.2006 to 29.09.2006, in the area of Vaishali, Ghaziabad, Bihar and Shakurpur (Delhi). As such, he has been facing trial for offences U/s. 366 and 376 IPC.
Case of prosecution is that prosecutrix was a student of 10th standard. She used to go to her school at about 7 a.m. and return at 1 p.m. Thereafter at 01:30 p.m. she used to attend Gymanstic class in the same school. Then she used to go for tuition at 3 p.m. in Raghubir Nagar.
Occurrence is alleged to have taken place on 30.07.2006. At about 3.00 p.m., the prosecutrix, left her house to go for tuition. On the way, she went to a stationery shop. She bought a book. At that time, she found the accused present at her backside . She ignored the accused and then started for her tuition. Ultimately, the accused is alleged to have pushed the prosecutrix in an auto-rickshaw and taken her to a room.
Three days prior to the present occurrence, father of the prosecutrix accompanied his daughter to the market when she was to buy a book. At that time, her father observed the accused teasing the prosecutrix in the area of R-Block, Raghubir Nagar. He reprimanded the accused . The -:3:- accused retaliated that someday he would take away prosecutrix .
Case is registered & Investigation starts On the aforesaid date, when the prosecutrix did not return home, her father Nawal Shah searched for her, but in vain. Then he went to Police Post Raghubir Nagar and made statement. ASI Suresh Kumar got this case registered. The ASI searched for the accused and the prosecutrix, but they were not traceable. Thereafter. investigation was handed over to SI P. C. Yadav.
Further case of prosecution is that the accused kept the prosecutrix in confinement in a room for 1½ month . During this period, the accused also subjected the prosecutrix to rape.
One day, all of a sudden, the accused picked up everything and took the prosecutrix to a town in State of Bihar. There he hired a room in a hotel and kept her there for about 10/12 days. He then did commit sexual intercourse with the prosecutrix in that room for many days, without her consent.
One day, many persons came to the room of the -:4:- aforesaid hotel and placed papers before the prosecutrix asking her to sign the same. She refused to sign the papers. Those persons then gave her beatings and also threatened her with kidnapping of the children of her brother, at the point of knife. She was then forced by those persons to sign the papers. The aforesaid persons then asked the prosecutrix to write a letter addressed to her father. Five minutes thereafter, those persons left the room. Mobile phone of one of those persons remained in the room of the hotel. The prosecutrix made a phone call to her brother Abdul and informed him that the accused had kidnapped her and that she was in Mujaffarpur, Bihar, at that time.
Two days thereafter, the accused brought the proseuctrix to Delhi by train. He did not take her to any room and rather kept on roaming with her in the area of Shakurpur.
On 29/09/2006, when parents of the prosecutrix learnt that she was in Shakurpur, both of them reached Shakurpur and found the accused and the prosecutrix near Samrat Cinema/Hotel. At that time, the accused was holding the prosecutrix by her hand. The prosecutrix went to her mother. Brother and father of the prosecutrix also reached -:5:- there. That is how, the accused and the prosecutrix were apprehended.
On the basis of the aforesaid information given by mother of the prosecutrix to police of Police Post Raghubir Nagar that she had caught hold of the accused, DD No. 45 was recorded and ASI Hawa Singh was directed to look in to the matter.
ASI Hawa Singh accompanied by Constable Rajan reached Shakurpur near Samrat Hotel, Delhi and met the accused, the prosecutrix and her mother. Mother of the prosecutrix actually produced the accused before the police. ASI enquired from the prosecutrix whereupon she made statement levelling allegations against the accused. That is how, offence u/s 376 IPC was also inserted. The accused was arrested and interrogated by the police.
On 30/09/2006, the prosecutrix was subjected to medico legal examination at DDU hospital. After the medico legal examination of the prosecutrix, the doctor handed over two sealed parcels and a sample seal to lady constable Anuradha, who in turn handed over the same to ASI Hawa Singh.
-:6:-
Accused was also medico legally examined. In this regard, MLC was prepared by the doctor. After medico legal examination of the accused, the doctor handed over to constable Ashok Kumar one sealed parcel and sample seal. The constable in turn produced the same before ASI Hawa Singh. Custody of the prosecutrix was given to her mother.
On 03/11/2006. on the application dated 18/10/2006, Metropolitan Magistrate recorded statement of the prosecutrix u/s 164 Cr.P.C. On completion of investigation, challan was put in court.
After compliance with provisions of section 207 Cr.P.C., case came to be committed to the Hon'ble Court of Session, vide order dated 28/02/2007.
Charge Prima facie case having been made out for offences u/s 366 and 376 IPC, Charge for these offences was read over and explained to the accused on 24/04/2007. Since the accused pleaded not guilty and claimed trial, prosecution was called upon to lead evidence. -:7:- Prosecution Evidence In order to prove its case, prosecution examined following witnesses:-
Prosecutrix has stepped into witness box as PW9; her father as PW7, mother as PW8 and her brother as PW10.
Sh. Rakesh Kumar, Metropolitan Magistrate, who recorded statement of the prosecutrix u/s 164 Cr.P.C. has been examined as PW11.
Medical evidence is available in the statements of PW3 Dr. Dhananjay Kumar who medico legally examined prosecutrix on 30/09/2006 at 05:30 a.m. and prepared MLC Ex.PW3/A and PW1 Dr. Aarti Sharma who gynaecologically examined the prosecutrix on 30/09/2006 at DDU Hospital.
PW2 Sh. R. C. Paswan is Principal of the school where the prosecutrix was a student. He deposed about date of birth of prosecutrix as 05/04/1992 as per school record.
PW4 Head constable Vijender Singh has been examined to prove recording of FIR Ex.PW4/A. He also worked as MHC (M) on 30/09/2006 and in that capacity received three sealed parcels alongwith sample seal from ASI Hawa Singh. On 31/10/2006, the Head Constable sent the -:8:- sealed parcels to FSL Rohini.
PW5 Constable Ashok Kumar, PW6 Constable Rajan, PW12 Constable Raju Palve, PW13 lady constable Anuradha, PW14 ASI Hawa Singh and PW15 ASI Suresh Kumar have deposed about investigation part of prosecution story.
Defence Plea When examined u/s 313 Cr.P.C., the accused denied to have kidnapped the prosecutrix or to have subjected her to rape. The accused admitted that prosecutrix was a student of 10th standard and that she used to go to school at about 7 a.m. and to have tuition at 2 p.m. As regards age of the prosecutrix, he pleaded that the prosecutrix represented him that she had attained majority. As per plea put forth by the accused, he and the prosecutrix were in love with each other for the last four years and that both of them wanted to marry. He further pleaded that it was the prosecutrix who asked him to accompany her to marry.
Plea put forth by accused is as under:
"I and the prosecutrix were in love with each other for the last four years. Both of us -:9:- wanted to marry each other. The prosecutrix used to come to the house of my Mausi, in R Block, Raghubir Nagar and we used to meet each other there.
A week prior to the registration of this case, Nawal Shah, father of the prosecutrix came to the house of my Mausi, where I and prosecutrix were present. At that time, I expressed my desire to marry his daughter. I requested to him to see my parents. Nawal Shah slapped me and took away his daughter.
Two days' thereafter prosecutrix again came to the house of my Mausi and told me that her parents were not agreeing for our marriage. She told me that she had attained majority and that I should accompany her to marry. She was carrying her original ration card. She supplied me with a copy of ration card while telling that she had attained majority. I advised the prosecutrix to ponder over well before taking step further. She also told me that her parents were reluctant to send -:10:- her school anymore. Accordingly, I and the prosecutrix reached my native village Chakyadav in Bihar . We married each other in my native village. We submitted affidavits in court regarding our marriage. We also furnished Nikahnama in court in Muzaffarpur. Thereafter, both of them returned to Delhi.
At Delhi, I took on rent a room in Shakurpur, where I and my wife started living together. My wife sent a letter to her parents at her parental house. After two months, I, as suggested by my wife, accompanied my wife to her parental house. Parents and other family members of my wife made us to sit at their house for about four hours but ultimately they took me and my wife to a room in Jahangirpuri and gave me beatings. They wanted me to sign a document regarding divorce but I did not sign. They also attempted to pull my nails from my fingers. In this way they tortured me. Two days thereafter they took me to Police Post Raghubir Nagar and that is -:11:- how this false case was registered."
In defence, the accused examined DW1 Smt. Reena, employee of Food & Supply Office, Circle 15, to prove entry Ex.DW1/A in Master Register in the year 2005 wherein year of birth of prosecutrix stands recorded as 1988.
Arguments heard. File perused.
Learned Additional Public Prosecutor has referred to the statements of the prosecutrix and her family members and contended that prosecutrix was less than 16 years of age on the day she was kidnapped and that from the medical evidence, it stands established that it was the accused who subjected her to rape, and as such, he is liable to be convicted and sentenced.
On the other hand, learned defence counsel contended that prosecutrix was about 18 years of age and that she, of her own, accompanied the accused and then married him. Learned defence counsel has referred to the medical evidence in the form of report of Radiologist that age of the prosecutrix was 16 to 16½ years, and contended that keeping in view margin of 2 years, she can safely be said to -:12:- be of 18 years of age during those days. At the same time, learned defence counsel referred to the statement of DW1 Smt. Reena and submitted that in the ration card, year of birth of prosecutrix stands recorded as 1988 and counting the age of the prosecutrix as per this record, it can safely be said that the prosecutrix was about 18 years of age.
As regards school record proved by PW2, learned defence counsel contended that no reliance can be placed on this record as PW2 nowhere deposed as to what was the basis of the date of birth recorded in the school record. So, the contention of learned defence counsel is that prosecution has failed prove that prosecutrix was less than 16 years of age and that during the days she accompanied the accused, she was about 18 years of age.
Learned defence counsel has contended that occurrence is alleged to have taken place on 30.07.2006, but parents of the prosecutrix reported the matter to the police on 03.08.2006. It has been contended that prosecution has failed to explain this delay in reporting of the matter to the police, which creates doubt in the version of the prosecutrix regarding kidnapping of the prosecutrix.
-:13:-
Learned defence counsel has further contended that as per version of the prosecutrix, even prior to the present occurrence, the accused misbehaved with her for which her father reprimanded him, but no report in this regard was ever lodged with the police, which creates doubt in the version of prosecution in this regard.
Learned defence counsel has referred to letter Ex. PW9/B which the prosecutrix admitted to have written in her own handwriting. Contention of learned defence counsel is that contents of this letter would reveal that the prosecutrix was in love with the accused and that she herself accompanied the accused and then married him, although her parents were not ready for this marriage.
Learned defence counsel has referred to the prosecution evidence and pointed out that there are material contradictions in the statements of the prosecution witnesses regarding the date, place and manner in which the prosecutrix was recovered and submitted that these material contradictions create doubt in the version of prosecution put forth in this regard. Then, it has been submitted that from the material on record, it stands established that Investigating -:14:- Officer got recorded statement of the prosecutrix under Section 164 Cr.PC after much delay; that prosecutrix was given beatings by her mother before her statement was recorded U/s. 164 CrPC and that the parents of the prosecutrix accompanied her to the court on the day her statement was recorded, and as a result, it stands established that there was possibility of the prosecutrix having been tutored. It has also been contended that the statement Ex.PW9/B does not bear attestation of the Magistrate. So, it has been contended that no reliance can be placed on the version narrated by the prosecutrix regarding her kidnapping and having been subjected to rape.
In support of his contentions, learned defence counsel has referred to decisions in Jinish Lal Sah vs. State of Bihar, 2003 (1) JCC 273; Mahabir vs. State, 1994 JCC 413; Manish Singh vs. State Govt. Of NCT & Others (2005 (2) FLC 585); and Mahabir Prasad vs. State, 1999 (1) Crimes 1.
Present case was registered on 03/08/2006 on the statement made by Nawal Shah, father of the prosecutrix. Occurrence is alleged to have taken place on 30/07/2006. In -:15:- his statement Ex.PW7/A made before the police, Nawal Shah stated that on 30/07/2006 the prosecutrix left the house for tuition but neither she reached the place where she used to have tuition nor she returned home. In the given circumstances, Nawal Shah should have immediately reported the matter to the police but he opted to report the matter only on 03/08/2006 at 11:10 p.m. There is nothing in the statement Ex.PW7/A as to why the matter was not reported to the police prior to 03/08/2006. It is well settled that delay results in embellishment which is creature of afterthought. Bereft of advantage of spontaneity, danger creeps in of an introduction of concocted version, exaggerated account as a result of deliberation and consultation. Thus, delay should be satisfactorily explained. In this respect reference is made to law laid down in AIR 1973 Supreme Court 501.
It is true that while making statement before the police, Nawal Shah named the accused for kidnapping of his daughter. However, it is not case of the prosecution that the prosecutrix was kidnapped by the accused in presence of his father or any other family member. In his statement -:16:- before the police Nawal Shah also named one Akhtar stating that he too knew about kidnapping of his daughter as he was also having a hand in the kidnapping. However, there is nothing in the statement Ex.PW7/A as to on what basis Nawal Shah named Akhtar, for the kidnapping of his daughter.
As regards involvement of accused Nawal Shah stated before the police in his statement Ex.PW7/A that three days prior thereto when he was accompanying his daughter - prosecutrix while going towards R-Block, Raghubir Nagar for buying a book, on the way, Ehtesham (accused) met and caught hold of his daughter by her hand whereupon he (Nawal Shah) slapped him. But the accused threatened that he would kill him and kidnap his daughter.
Had any such incident occurred on 28/07/2006, Nawal Shah would not have kept mum. Keeping in view the allegation that accused teased the prosecutrix in his presence, the father would have immediately rushed to the police station and reported the matter so as to get the accused booked for the crime, particularly when he is alleged to have extended threats to his life and liberty of the prosecutrix. However, there is nothing on record to suggest -:17:- that father of the prosecutrix reported any such incident to the police.
When we advert to the statement of the prosecutrix (PW9), it would transpire that she nowhere deposed about any such previous incident. Similarly PW10 Abdul, brother of the prosecutrix also did not mention any such previous incident while making statement in court. Non reporting of the matter to the police of any such previous incident as narrated by PW7 creates doubt in the version narrated by PW7 Nawal Shah.
Age of the prosecutrix As per version of prosecution, the prosecutrix was born on 05.04.1992 and during the days of occurrence, she was aged about 14 years of age. In order to prove the factum of age, prosecutrix examined PW2 Sh. R.C. Paswan, a Clerk from the School, where the prosecutrix was having her studies. According to PW2, as per school record, date of birth of the prosecutrix is 05.04.1992. It may be mentioned here that in his cross examination, PW2 admitted that date of birth recorded in the school record is based on school leaving certificate issued by another school. PW2 admitted that no -:18:- birth certificate was submitted on behalf of the prosecutrix at the time of seeking admission in 9th standard in that school. Since no birth certificate issued by MCD has been placed on record, no reliance can be placed on the date of birth recorded in the school record. Even during investigation, no birth certificate issued by MCD was produced before the police.
On the other hand, accused has got proved on record copy of Master Register maintained by Food & Supplies Department. As per entry in Ex. DW1/A i.e. the copy of the Master Register for the year 2005, the year of birth of prosecutrix stands recorded as 1988. In view of this entry, it was for the prosecution to explain as to how year of birth of the prosecutrix came to be recorded as 1988 in contradiction with the entry available in the school record. Counting the age of the prosecutrix with effect from 1988 it appears that during the days of occurrence, the prosecutrix was about 18 years of age. As per ossification report Ex. PW15/B, as on 05.12.06, bone age of the prosecutrix was between 16 to 16½ years. Keeping in view variation of two years, it can safely be said that prosecutrix was about 18 years of age even as per bone -:19:- age examination.
Testimony of prosecutrix about kidnapping and
commission of rape
As regards the present occurrence dated
30/07/2006, case of prosecution is that prosecutrix left the house to have tuition but she neither went to the place where she used to take tuition nor she returned home. According to the prosecutrix, on 30/07/2006 at about 3 p.m., she left her house to go for tuition. On the way, she went to a stationery shop as she was to buy some books. She bought the book. At that time, she found the accused present behind there at the said stationery shop. As per prosecutrix, she ignored the accused and started for the place where she used to have tuition. The accused called her by name but she did not respond. He again called her whereupon she turned back and looked up at him. Further according to her, the accused touched her hand to which she retaliated by pushing away his hand. Immediately the accused pushed her into an autorickshaw and took her to a room where she was kept for 1½ month and subjected to sexual intercourse without her consent.
-:20:-
In her chief examination, the prosecutrix deposed that she used to go the C-Block Raghubir Nagar for tuition. In the given circumstances, it was for the investigating officer to verify if actually the prosecutrix used to go to any such place in C-Blcok, Raghubir Nagar for tuition. However, no investigation was conducted in this regard. In absence of cogent and convincing evidence in this regard, it cannot be said that prosecutrix left her house on 30/07/2006 to go for tuition.
So far as buying of a book is concerned, as per version narrated by the prosecutrix, the stationery shop was situated near her house. There is nothing in her statement as to which book she bought on that day from the said stationary shop. During investigation, version of prosecutrix was not verified by the Investigating Officer after visiting any such statutory shop. There is no other material on record to suggest that any such stationery shop was situated near the house of the prosecutrix. Even otherwise, had the accused called the prosecutrix from behind after she left the stationery shop and then touched her hand, she could raise hue and cry so as to attract persons from the public or the shopkeeper for -:21:- her help. However, there is nothing on record to suggest that the prosecutrix raised hue and cry, so as to attract persons from the public or the shopkeeper for her help. Non- raising of hue and cry by the prosecutrix in the given circumstances creates doubt about the version narrated by her.
In case the prosecutrix was pushed inside an auto-rickshaw, the prosecutrix could still raise hue and cry before she was forced to sit in any such auto-rickshaw. It is not case of the prosecution that auto-rickshaw was being driven by any companion of the accused. The prosecutrix could tell the auto-rickshaw driver that she was being forcibly taken away. However, there is nothing in the statement of the prosecutrix that she raised any alarm so as to attract presence from the public or atleast the auto-rickshaw driver to save herself. Non raising of any alarm or any hue and cry by the prosecutrix at the time she is stated to have been pushed inside an auto-rickshaw and then taken away, once again creates doubt in the version narrated by her.
Prosecutrix has then alleged of wrongful confinement in a room for about 1½ month. Firstly, the
prosecutrix has nowhere specified as to where that room was -:22:- situated where she alleges to have been wrongfully confined by the accused. It remains unexplained as to where the auto- rickshaw driver dropped her and the accused. It also remains unexplained as to why she did not raise any hue and cry at the place where she was made to alight from the said auto- rickshaw. She has alleged commission of sexual intercourse in a room but she nowhere specified as to in which room she was so subjected to. The prosecutrix is alleged to have been recovered on 29/09/2006. After her recovery she never accompanied Investigating Officer to point out any such room where she was wrongfully confined or subjected to rape. In absence of any cogent and convincing evidence, it is difficult to believe that prosecutrix was wrongfully confined or raped in any such room during the period of 1½ month.
As further stated by the prosecutrix, one day all of a sudden accused packed everything and took her to the railway station in Bihar and that the accused hired a room in a hotel, kept her there for about 10/12 days and then subjected her to rape for many days. It may be mentioned here that in her cross examination the prosecutrix admitted to have not raised any hue and cry while she travelled in the -:23:- company of the accused in the train bound for Bihar. She put forth the explanation that she did not raise hue and cry on account of threat extended by the accused with kidnapping of her nephew. There is nothing on record to suggest that the prosecutrix has any nephew. Firstly, she could raise hue and cry while she was taken away to the Railway Station at Delhi, then in the train and then in the city where she alleges to have been taken away by the accused. There was ample opportunity with the prosecutrix to attract persons from the public. In the given circumstances, the explanation put forth by the prosecutrix not having raised hue and cry because of threats, is unacceptable.
The prosecutrix could raise alarm or hue and cry in the room of the hotel where she alleges to have been kept for about 10/12 days. In her cross examination, she admitted that she was taken to Muzaffarpur. She further stated to have not raised any hue and cry in the room, at Muzaffarpur where she was kept. In view of this admission, the prosecutrix, in the very next breath, tried to explain that since she was kept in unconscious condition, she did not raise any hue and cry. It is not believable that in a room of the hotel the accused -:24:- could keep the prosecutrix in unconscious condition for such a long period of 10/12 days. Any employee of the hotel could easily come to know of this fact. The explanation put forth by the prosecutrix in this regard is highly unbelievable.
Prosecutrix has come forward with the version that one day in the evening many persons came to the room to the hotel and got signed from her many papers after giving her beatings and extending her threats. Those persons even got written a letter from her which was addressed to her father. However, she displayed ignorance as to what she was made to write in that letter. In her cross examination, learned defence counsel put to the prosecutirx letter Ex.PW9/B, which she admitted to be in her handwriting and bearing her signatures, but the prosecutrix added that she was forced to write this letter in the room of the hotel in Mujaffarpur. After her recovery, the prosecutrix could lead the Investigating Officer to the said hotel in Mujaffarpur, so that her version in respect of extending of threats by a number of persons could be verified. However, there is nothing on record to suggest that at any point of time she accompanied the Investigating Officer to any such hotel in Mujaffarpur. Furthermore, it is not -:25:- believable, in the given facts and circumstances that she kept mum even after the letter was got written from her under threat. She could raise hue and cry after the persons left the hotel. In her cross examination, she admitted that those persons left the room after five minutes. However, there is nothing on record to suggest that she raised any such hue and cry attracting employees of the hotel. This creates doubt in the version narrated by the prosecutrix regarding execution of letter Ex. PW9/B under any kind of threat.
A perusal of letter Ex. PW9/B would reveal that she wrote this letter to her parents. Vide this letter, she apprised her parents that they must have felt sad because of her taking this step. She held her parents responsible for all this. She wrote that had they not got struck off her name from the roll of the school, she would not have taken any such step. She went on to write in this letter that even after completion of her educational qualifications, she would have accompanied Ehtesham (accused). She reminder her father as to how Ehtesham (accused) had offered to marry her twice even without any demand of Mehr and how the offer was turned down by them (her parents). She expressed her -:26:- happiness being in the company of Ehtesham (accused). She further informed her parents that she had married Ehtesham (accused) by way of court marriage.
The expression used by the prosecutrix in addressing her parents in Ex. PW9/B would reveal that the prosecutrix was not under any kind of threat, when she wrote this letter and rather it can safely be said that she wrote this letter conveying her grief against her parents, and at the same time her happiness being in the company of Ehtesham (accused) after having solemnised court marriage with him. The aforesaid version available in letter Ex. PW9/B falsifies the version narrated by the prosecutrix in court as PW9 that she was kidnapped by the accused, then wrongfully confined and subjected to rape.
It is in the statement of the prosecutrix that she made call to her brother from the room of the aforesaid hotel. This phone call is stated to be made from the mobile phone of one of the persons, who had come to the room of the hotel and forced her to sign documents. According to the prosecutrix, she informed her brother that she was in Mujaffarpur (Bihar) and that the accused had kidnapped her. -:27:- She further stated to have told her brother that the accused had even kept her in the area of Shakurpur and that her brother assured her that he shall be reaching soon.
PW10 Abdul is brother of the prosecutrix, who deposed to have attended the phone call and come to know from the prosecutrix that she was being confined in Bihar. PW10 nowhere deposed that his sister informed him that she was being confined in a room of hotel in Mujaffarpur. According to PW10, he informed SI and then accompanied him to Village Chakyadav in Bihar, but the accused and the prosecutrix were not traceable there. Had the prosecutrix informed her brother of her wrongful confinement in a room of a hotel in Mujaffarpur, there was no question of PW10 leaving in the company of SI for Village Chakyadav. Furthermore, there is no corroboration to the statement of PW10 from the statement of any police official regarding their visit to Village Chakyadav in Bihar. Had PW10 ever attended any such phone call from the prosecutrix, parents of the prosecutrix must have deposed about this fact. However, a perusal of statements of PW7 Nawal Shah and PW8 Mst. Ayesha, mother of the prosecutrix, would reveal that they nowhere -:28:- deposed about any such phone call received from the prosecutrix or that their son left for Village Chakyadav consequent upon receipt of any such phone call. So, the version narrated by the prosecutrix to have telephonically informed her brother from the room of the hotel about her confinement by the accused in Mujaffarpur, is highly doubtful.
As regards recovery of the prosecutrix, the prosecutrix, as PW9, deposed that two days after she telephonically contacted her brother from the room of the hotel, the accused brought her back to Delhi by train. Surprisingly, she did not raise any hue and cry even on her return journey from Mujaffarpur to Delhi despite the fact that she alleges to have travelled in a train. There is nothing in her statement as to on which date they reached Delhi or as to where they lived after having reached Delhi. The prosecutrix replied that the accused did not take her to any room. According to her, they kept on roaming in the area of Shakurpur. Half an hour thereafter, her mother reached there, and as such, she went to her. According to the prosecutrix, perhaps her brother also reached there. She further stated that her father reached there lateron and that is -:29:- how, she was taken to PP Raghubir Nagar whereas her brother took away the accused to some place.
Case of prosecution is that ASI Hawa Singh (PW14) received DD No. 45 about apprehension of the prosecutrix and the accused. Thereupon, the ASI accompanied by Constable Rajan reached near Samrat Hotel, Shakurpur, Delhi, and tried to search the prosecutrix, the accused and others. After sometime, mother of the prosecutrix came to Samrat Hotel. At that time, she was accompanied by the prosecutrix and the accused. According to PW14, mother of the prosecutrix produced her daughter (the prosecutrix) as well as the accused. A perusal of DD No. 45 Ex. PW14/A would reveal that on 29.09.2006 at about 9.00 p.m., police of Police Post Raghubir Nagar received telephonic information from the mother of the prosecutrix that the accused had been apprehended alongwith her daughter near Samrat Hotel, Shakurpur.
Parents of the prosecutrix have come forward with the version that they learnt from someone that their daughter was seen in the company of a boy in the area of Shakurpur, whereupon they left in her search and apprehended them -:30:- near some Cinema Hall, while they were roaming. According to PW8, mother of the prosecutrix, at that time, the accused was holding her daughter by her hand. Statement of PW7- father of the prosecutrix is also to the same effect. Had the prosecutrix been kidnapped by the accused, she could not be seen roaming with the accused. In case of kidnapping, she would have raised hue and cry so as to attract persons from the public for her help. However, the evidence led by the prosecution goes to show that the accused was seen roaming in the area of Shakurpur,while holding hand of the prosecutrix. It is not case of prosecution that on seeing her parents, the prosecutrix raised any hue and cry that she was being kidnapped by the accused or that she was kept in wrongful confinement by him.
PW10 Abdul, brother of the prosecutrix, nowhere deposed that he apprehended the accused, while he was roaming in the company of his sister in the area of Shakurpur. According to him, one day, his parents noticed the accused and his sister in the area of Shakurpur and he learnt about it from them. Further, according to him, police never enquired from him in this regard. Even mother of the prosecutrix stated -:31:- in court that police did not enquire from her anything. She even displayed ignorance if her statement was recorded by the police.
The facts and circumstances narrated by the prosecutrix and her parents reveal that the prosecutrix was not being wrongfully confined by the accused and rather it can safely be said that the prosecutrix was willingly accompanying the accused and roaming in the area before they were noticed on 29.09.2006 and taken away with the help of the police.
Case of prosecution is that statement of the prosecutrix was got recorded U/s. 164 CrPC on 03.11.2006. The prosecutrix, while appearing in court as PW9, deposed that after some days, her statement was recorded by Magistrate. She has proved her statement Ex.PW9/A. PW11 Sh. Rakesh Kumar is the concerned Metropolitan Magistrate who recorded statement of the prosecutrix. Learned defence counsel has contended that no reliance can be placed on the prosecution version in respect of recording of statement as the same does not bear signatures of the judicial officer who recorded the same and that it was recorded after much delay i.e. on 03.11.2006, although the prosecutrix is alleged to have -:32:- been recovered on 29.09.2006.
As noticed above, case of prosecution is that prosecutrix was recovered on 29.09.2006 when she was roaming in the company of the accused in the area of Shakurpur, Delhi. In the given circumstances, it was duty of the investigating officer to take the prosecutrix to the Metropolitan Magistrate for recording of her statement U/s. 164 CrPC without delay. However, the investigating officer produced the prosecutrix before Metropolitan Magistrate on 03.11.2006. There is no explanation as to why her statement was got recorded after much delay. In State of Karnataka v. Mapilla P.P.Soopi, AIR 2004 SC 85, Hon'ble Apex Court observed that unexplained delay in lodging complaint with the police contributes to the doubt in the prosecution version.
Even otherwise, in the given facts and circumstances, when the prosecutrix remained in the custody of her parents after her recovery and before recording of her statement U/s. 164 CrPC, possibility of the prosecutrix having been tutored by her parents during this period cannot be ruled out, particularly when it stands recorded in the MLC of the prosecutrix that her mother had given her beatings. -:33:-
As regards the submission put forth by learned defence counsel that the statement Ex.PW9/A i.e. U/s. 164 CrPC does not bear signatures of Metropolitan Magistrate, it appears that because of inadvertence the Metropolitan Magistrate could not put his signatures on the proceedings pertaining to recording of statement U/s. 164 CrPC. Conclusion In view of the above discussion, this court comes to the conclusion:
(i) that on 30th of July 2006, the prosecutrix accompanied the accused of her own, when she was about 18 years of age, as both of them were in love with each other;
(ii) that the prosecutrix remained with the accused of her own upto 29/09/2006 and she was taken away only when her parents noticed her in the company of the accused ;
(iii) that the accused had sexual relations with the prosecutrix with her consent.
Since prosecution has failed to substantiate any -:34:- accusation levelled against the accused this court hereby orders for acquittal of Ehtesham accused in this case.
Case property be destroyed in accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court on dated 10th of June, 2008 [ Narinder Kumar ] Additional Sessions Judge Fast Track Court Rohini : Delhi 10-06-2008