Delhi District Court
State / vs Santra on 20 August, 2011
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 134/01
Unique Identification No. 02404R0508872002
State / Vs
1. Santra
W/o Sh. Balbir
R/o Jugghi No.329, Double Storey,
Tagore Garden, Delhi. (Since expired)
2. Kumari Baby
D/o Balbir
R/o, Jugghi No.329, Double Storey, Tagore Garden, Delhi.
3. Rajesh
S/o Deshraj
R/o F213, Raghubir Nagar,
Delhi. (Proclaimed offender)
4. Smt Akhtari
W/o Akhatr
R/o Nai Basti, Takia Wali Masjid,
Baghpat, UP,
5. Maan Singh
S/o Harkesh
R/o Village Khanpur
PS Gangoh, District Saharanpur,
UP.
6 Bhateri
W/o Mukesh
R/o Jugghi No. 329,
Double Storey, Tagore Garden
Delhi (proclaimed offender)
FIR No. 125/02
PS - Rajouri Garden
U/s. 363/366/372/373/376/120B/109/34 of IPC
SC No. 134/1 1/28
Date of institution of the case: 29/08/2007
Arguments heard on: 12/08/2011
Date of reservation of order: 12/08/2011
Date of Decision: 18/08/2011
JUDGMENT
This case was registered on the statement of one Santra u/s 363 of IPC regarding missing of two girls. Later on, one of the prosecutrix was recovered and her statement u/s 164 of Cr.PC was recorded. Accordingly, section 363/366/372/373/376/120B of IPC were added. Accused Santra, Kumari Baby were arrested in this case and their personal search were conducted. Accused Akhteri was also arrested and her personal search was also conducted. MLC of Kumari Baby, Rajesh Kumar and Prosecutrix were collected. Bone age Xray of prosecutrix also got conducted. Accused Rajesh was arrested and his personal search was conducted. Accused pointed out the place of occurrence. Accused Maan Singh was also arrested and his personal search was conducted. MLC of accused Maan Singh was also collected. On completion of the investigation, chargesheet was filed against accused Santra, Kumar Baby, Rajesh, Akhtari and Maan Singh u/s 363/366/372/373/376/109/120B of IPC. Accused Bhateri was declared PO. Case was committed to the court of sessions and was received on 30/09/02.
Charge against accused Santra was framed u/s 120B/363/366/109 read with section 376 and 372 of IPC, to which she pleaded not guilty and claimed trial.
Charge against accused Man Singh was framed u/s 120B read with section 376 of IPC and u/s 373/376 of IPC, to which he pleaded not guilty and SC No. 134/1 2/28 claimed trial.
Charge against accused Baby was framed u/s 120B read with section 376 of IPC and u/s 363/366/109 of IPC read with section 376 of IPC, to which she pleaded not guilty and claimed trial.
Charge against accused Rajesh was framed u/s 120B read with section 376 of IPC and u/s 342/376/372 of IPC, to which he pleaded not guilty and claimed trial.
Charge against accused Akhtari was framed u/s 120B of IPC read with section 376 of IPC and u/s 373/372 of IPC and u/s 109 of IPC read with section 376 of IPC, to which she pleaded not guilty and claimed trial.
During the proceedings, accused Santra died and accused Rajesh was declared proclaimed offender.
To prove its case, prosecution has examined PW1 to PW21 in all. Statement of accused persons recorded. Accused persons have denied the case of prosecution and have stated that they are innocent and have not committed any offence.
In defence, DW1 Naresh, DW2 Mohd Mustaffa have been examined.
I have heard Ld APP for state and Ld defence counsel for accused persons and have gone through the evidence adduced and material brought on record.
Findings qua offence u/s 363/366 of IPC in respect of accused Kumari Baby.
Prosecutrix has been examined as PW1. She has stated that she SC No. 134/1 3/28 knows all the accused persons. Accused Baby was her neighbour and she was her friend. Santra was mother of Baby. Rajesh is husband of accused Baby . PW1 has further stated that about one year ago, at about 7.30 am, she was cleaning utensils. Accused Baby came to her . She asked her to accompany her for latrine. She accompanied her. Accused Baby offered her to go for excursion. She told that her mother would scold her. She took a rickshaw. Mother and mausi of Kumari Baby met them at the bus stand. Mother of Baby told prosecutrix that she was going to see a boy for marrying Baby and asked prosecutrix to accompany her. She refused, but she told that being friend of Baby, she should accompany them. They took her to Ghaziabad. Mother and Mausi of accused Baby left them near a room which was locked from outside and they left after saying that they would make a telephone call. But they did not return back.
PW1 has further stated that Baby telephoned Rajesh. Rajesh came there. They all stayed in one room. Rajesh established physical relations with Baby and he asked prosecutrix to marry his brother Bhagona. She refused. After few days, accused Rajesh committed forcible sexual intercourse with her. Accused Baby and Rajesh used to scold her. Thereafter, accused Rajesh turned her out of the house.
In the cross examination, PW1 has stated that she was 16 years at the time of incident. PW1 has further stated that she reached at about 10.00 am and they stayed in a room in Ghaziabad on first day of reaching at Ghaziabad.
Ld defence counsel has contended that PW1 cannot be believed in SC No. 134/1 4/28 any manner because she has stated in her statement before Magistrate that she stayed with a muslim family, whereas now she has stated that she has not stated so in her statement to the Magistrate. Ld defence counsel has further contented that in her statement recorded u/s 161 of Cr.Pc that on the next day, Rajesh came and took a separate room on rent, whereas it is not recorded so.
PW1 has further stated that room in Ghaziabad was arranged by the son of accused Akhteri and further denied the suggestion that Baby did not take her to Ghaziabad or that she has falsely implicated Baby and Santra at the instance of her parents.
From the deposition of PW1, which inspires confidence, it is established that she was taken by Kumari Baby with her to Ghaziabad and firstly they boarded rickshaw and thereafter they boarded bus and at the bus stop.
PW2 is Vedoo, mother of prosecutrix. She has stated that about one and a half year ago, her daughter went for latrine alongwith accused Baby. She did not return back. After three days, she lodged the report. Her son also accompanied her. She expressed suspicion against Santra and Bhateri. Her daughter was recovered after more than three months from Khanpur from the house of accused Man Singh and her statement was recorded by the magistrate.
In the cross examination, PW2 has stated that she was present in her house, when her daughter left the house. After about one and half hour, she noticed that her daughter had not returned. She used to go for latrine daily, but not with Baby. However, they were friends and on that day, she went with SC No. 134/1 5/28 Baby. PW2 has further stated that she does not know the date of birth of prosecutrix, but she was born after one or half year after the death of Smt Indira Gandhi.
PW2 has further deposed that initially report was lodged by Santra because she was busy in searching for her daughter.
Ld defence counsel has contended that from the cross examination of PW2, it is not clear as to what was the age of prosecutrix at the time of incident.
If we calculate the age of prosecutrix as deposed by PW2, then at the time of incident she was less then 16 years of age.
After the recovery of prosecutrix on 27/06/02, she was examined by PW8 Dr. Babita Garbiyal produced by police. After examination, she advices Xrays for bone age vide MLC Ex. PW8/A bearing her signature at point A. In absence of any date of birth certificate, issued by MCD, we have to take the bone age Xray report as proof of age of the prosecutrix. Bone age has been proved by PW18 Dr. Nishu Dhawan, who has identified the writing and signature of Dr. A.K. Gupta and Dr. Arpita. PW18 has proved the report as Ex. PW18/A. She has also proved the MLC of prosecutrix as Ex.PW18/B in respect of writing and signature of Dr. Arpita. PW18 has not been cross examined by Ld defence counsel in any manner. According to Ex.PW18/A, prosecutrix was more than 17 years of age but less then 19 years. So the prosecutrix, was aged in between 17 to 19 years, at the time of incident.
PW1, prosecutrix has stated that mother of Kumari Baby and her mausi met them at bus stand. Her mother told that she was going to see a boy SC No. 134/1 6/28 for marrying Baby and asked her to accompany her. Prosecutrix refused but she told that being a friend of Baby, she should accompany them. They took her to Ghaziabad. Mother and Mausi of Baby left them near a room, which was locked from outside and they left after saying that they would make a telephone call, but they did not return back. Accused Baby telephoned Rajesh, who came there.
Ld defence counsel has contended that from the cross examination of PW1 prosecutrix, it is clear that PW1 was not happy with her marriage and further admitted that Baby has performed a marriage in a court with Rajesh, but they did not perform marriage in her presence and after recovery of prosecutrix, she came to know that they had performed the marriage. Accused Baby never told her that she was going to perform marriage with Rajesh. Ld defence counsel has further contended that it shows that Baby was already married with Rajesh and prosecturix accompanied her at her own as she was not happy with her marriage and none enticed her or took her away out of her lawful or with an intention that she may be forced or seduced to illicit intercourse PW1 has admitted in the cross examination that she was married in the childhood and she does not remember when she got married. PW1 has further stated that she stayed with Baby in a room in Ghaziabad on first day of reaching Ghaziabad. At night Baby and Rajesh stayed with her in that room.
PW1 has further stated that she stayed in the same room for one month. During this month long stay, she did not raise any noise that she was enticed or taken away from lawful guradianship by accused Kumari Baby. SC No. 134/1 7/28 Even she did not raise any noise there that she was taken with intent that she may be forced or seduced for illicit intercourse.
PW4 Abid has stated that he is rickshawpuller. Mohd Akil has a barber shop. In the month of February, 2002, in the afternoon, one boy came to them, whose name he does not know and asked him to arrange a room on rent for him, but he refused. That boy told PW4 that he was married and accompanied by two girls and further told that one was his wife and another one was sister of his wife. So, on persistent request, PW4 arranged a room for him in Arsala Mohalla, Sahibabad, which belonged to Raza Khan and thereafter PW4 left. He does not know anything beyond that.
This witness has not supported the case of prosecution, so he has been cross examined by Ld APP. Even in the cross examination, he has not supported the case of prosecution nor has identified the two girls, who were accompanying with said boy.
PW5 Mohd Akil has also deposed that about two years back, one boy asked him to arrange a house on rent. He got arranged a room at the house of Raza Khan. PW5 also not supported the case of prosecution and he has also been cross examined by Ld APP. PW5 has not identified accused Rajesh before the court as the same person for whom he had arranged a room.
PW19 is Mehrunisa. She has also not deposed as per the case of prosecution and has identified two of the accused persons i.e. Rajesh and Santra before the Court, who remained as tenant for two months, but had not paid the rent. In the cross examination, PW19 has stated that only one room was given on rent to them.
SC No. 134/1 8/28
So, from the deposition of PW4 and PW5, it has come in evidence that they both arranged room for one boy and two girls, but they failed to identify those three persons as accused Rajesh, Kumari Baby and PW1 Prosecutrix . On the other hand, PW19 has stated that room was given to two persons only and has identified both of them as Rajesh and Santra, but there is no corroboration in this respect nor it is the case of prosecution that Santra resided with accused Rajesh.
PW4 has stated that he arranged room in February 2002. PW5 has stated that he arranged room around two years back. PW5 has been examined in the year 2004, so as per his statement he arranged room two years back i.e. in the year 2002. PW19 has been examined in the year 2005 and he has stated that room was given about 2½ or 3 years back, so it also comes to year 2002. But, it is doubtful whether the room was given to Kumari Baby and PW1 prosecutrix or to Santra. PW19 has stated that the tenants remained in a room for two months and PW1 has also stated that she stayed in the said room for one month.
Statement of prosecutrix PW1 was recorded by PW14 Atul Kumar Garg, the then MM Ex. PW1/A on 03/06/02 and his certificate is Ex.PW14/A. On application Ex.PW14/B, one copy of statement was supplied to IO.
PW1 prosecutrix has been confronted with the statement Ex.PW1/A for certain facts that she stayed for one night with muslim family and took separate room on rent. This contradiction is not material in any manner.
To prove offence u/s 363 of IPC, prosecution has to prove that the SC No. 134/1 9/28 prosectrix was under the age of 18 years, at the time of incident. As already discussed above, prosecutrix was aged in between 17 years but less than 19 years, so if we take average age of prosecutrix then the same was 18 years at that time, when she was asked to go for latrine by accused Kumari Baby and she accompanied her. Thereafter, they had gone for excursion and went to Ghaziabad where PW1 stayed for about one month in a room and she did not raise an noise that she was enticed or was taken away out of keeping of her lawful guardianship.
PW2 Vedoo has nowhere stated that accused Kumari Baby took away her duaghter PW1 prosecutrix or enticed her without her consent. So prosecution has not been able to prove the offence u/s 363 of IPC against accused Kumari baby. Accordingly she is acquitted for the same.
To prove the offence u/s 366 of IPC, prosecution has to prove that PW1 was kidnapped or abducted with intent that she may be compelled to marry a person against her will, or she may be forced to or seduced to illicit intercourse.
In this respect, PW1 has stated that Rajesh established physical relations with Baby and he asked prosecutrix to marry his brother Bhagona. After few days, Rajesh committed forcible sexual intercourse with her and PW1 has further stated in the cross examination that she stayed in the same room for one month. During the day time , Rajesh and Baby used to stay in that room. . PW1, prosecutrix did not raise any hue and cry or told to Kumari Baby that she was forcibly raped by accused Rajesh in a room. Hence no inference can be drawn that Kumari Baby was having intention that PW1 SC No. 134/1 10/28 prosecutrix may be compelled to marry any person against her will or that she may be forced or seduced for illicit intercourse.
PW1 has no where stated that accused Kumari Baby asked her to marry Bhagona, brother of accused Rajesh or she was knowing that accused Rajesh has committed forcible sexual intercourse with PW1 prosecutrix. PW1 has admitted in the cross examination that she had stated before Ld MM in her statement that Rajesh was husband of Baby. So, if she was knowing about the said fact and she did not raise any hue or cry during her stay in a room for one month, then, it seems more probable that she had gone with Kumari Baby at her own free will and Kumari Baby was not having any intention that prosecutrix will be compelled to marry with some one against her will or she will be forced or seduced to have illicit intercourse. So prosecution, has not been able to prove offence u/s 366 of IPC against accused Kumari Baby beyond reasonable doubts. Accordingly, Kumari Baby is acquitted for the offence punishable u/s 366 of IPC.
Findings qua offence 120B read with section 376 and qua offence u/s 109 read with 376 of IPC against accused Kumari Baby.
It has come in evidence that PW1 told to Ld MM in her statement that Rajesh was husband of Baby and it has also been proved that she accompanied Kumari Baby at her own free will and was not taken or enticed away in any manner.
According to the statement of PW1, after few days, accused committed forcible sexual intercourse with her. It is not evident from the statement of PW1 prosecutrix that Kumari Baby was present at that time or SC No. 134/1 11/28 she entered into criminal conspiracy with the accused Rajesh for forcible sexual intercourse with PW1 prosecutrix. It is also not evident from the statement of PW1 that accused Kumari Baby abated in any manner for the rape committed upon PW1 prosecutrix by accused Rajesh. It is not evident from the deposition of PW1 that accused Kumari Baby instigated or engaged or intentionally aided in any manner to facilitate the forcible sexual intercourse with PW1 by accused Rajesh and if it was so, then one month long stay in a room was enough to raise hue and cry by PW1, prosecutrix. Mere illiteracy is not a hindrance nor excuse in any manner for not raising any alarm. It is not the case of prosecution that prosecutrix was confined in a room and she was not able to go outside the room, which shows that she stayed at her own will and even if accused Rajesh forcible committed sexual intercourse with her then it cannot be said that Kumari Baby abated to accused Rajesh or she entered into criminal conspiracy with him for the same. It seems highly improbable that a wife will instigate her husband or entered into criminal conspiracy with her husband to get committed sexual intercourse with another lady.
So prosecution has not been able to prove the offence u/s 120B of IPC read with section 376 of IPC and offence u/s 109 of IPC read with section 376 of IPC against accused Kumari Baby beyond reasonable doubts. Accordingly, Kumari Baby is acquitted from the same. Findings qua offence u/s 372/373 of IPC against accused Akhtari.
In this respect, PW1 prosecutrix has stated that Kumari Baby and SC No. 134/1 12/28 Rajesh used to scold her . Thereafter, Rajesh turned her out of the house. Accused Akhtari was residing in Ghaziabad. She took prosecutrix to her house . For about 1015 days, she kept prosecutrix in her house. Akhtari threatened her not to talk to anybody. Thereafter, she sent her with accused Man Singh. Man Singh gave money to Akhtari. He gave Rs.5000/ to Akhatri and she asked Man Singh to take her. PW1 has been cross examined on behalf of Akhatrai and suggestion was given that she at her own free will accompanied Akhtari to Baghpat and from the house of Akhtari, she accompanied Man Singh to village on her own.
PW2 Veedo has not stated anything about the role of accused Akhtari.
PW21 ASI Latif Khan has stated that on 26/05/02, he was posted at PS Rajouri Garden and on that day, he received information that prosecutrix and Baby, who were missing were present at Takiawala Mohalla, Bagpat at the house of Akhtari. He went to Baghpat and met Akhtari, but both the girls were not there in the house. He made inquiries from her about the girls, but she told that she was not aware of the same. On the way back, PW21 found STD booth. He gave his number to owner of STD Booth and asked him to inform him, when he came to know about the girls. Thereafter, he came back to Delhi. On 29/05/02, he received information that one prosecutrix could be found at the house of one Man Singh Jheemar at PS Saharanpur. In the cross examination, PW21 has stated that he made inquiries from neighbour, who told that prosecutrix had been there at the house of accused Akhtari. He did not arrest accused Akhtari at that time.
SC No. 134/1 13/28
So except the statement of PW1 prosecutrix, there is no other evidence in this respect that PW1 prosecutrix was taken by accused Akhtari from Ghazibad to Baghpat on the false pretext that she would keep prosecutrix in her house and she kept her in her house for about 1015 days, and thereafter accused Akhtari sent prosecutrix with Man Singh, who paid Rs.5000/ to accused Akhtari.
Mere suggestion has been given in cross examination of PW1 that PW1 accompanied with accused Akhtari to Baghpat at her own and from the house of accused Akhtari, she had gone to the house of Man Singh at her own. Both the suggestion shows that Akhtari took prosecutrix to Baghpat and later on she handed over the prosecutrix to accused Man Singh and whether PW1 was taken or she had gone at her own is a matter of appreciation.
Accused Akhtari has denied the case of prosecution in her statement u/s 313 Cr.Pc. She has explained that the said accused became her tenant without disclosing the facts that he was not the husband of complainant's daughter i.e. PW1 prosecutrix.
In defence, accused Akhtari has examined DW2 Mohd Mustaffa. He has stated that he lives in the same mohalla in which Akhtari resides. Two or three years ago, a girl and a boy came at Baghpat and they told to Akhtari that they required a house on rent. Husband of accused Akhtari was ill and DW2 was present in the house of Akhtari at that time. The boy started weeping and told accused Akhtari that he be given shelter for two or four days as he came to Baghpat after having quarrel with his parents. Akhtari gave her house to those boy and girls for 24 days. The boy represented that after two SC No. 134/1 14/28 four days, they will take a house on rent and will vacate. They roamed for two or four days but could not get any house on rent and Akhtari asked them to vacate the house as duration of 24 days already expired.
DW2 has further stated that accused Akhtari asked the boy about the girl accompanying him and he told her that she is his wife. Both of them vanished from the house of Akhtari in the night. Akhtari told the people of locality that both the girl and boy vanished in the night but on enquiries made by persons from locality, she told that they had not taken anything. Later on, it transpired that they were found at the house of Man Singh.
DW2 has not identified the said boy and girl out of the accused persons as accused Rajesh or Kumari Baby or PW1 prosecutrix as the same person, who had taken house of accused Akhtari for 24 days. In the cross examination conducted by Ld counsel, PW2 has stated that only girl was in the house of accused Man Singh and not the boy.
Ld APP has contended that DW1 cannot be relied upon as he is not a summoned witness and came with accused Akhtari in the Court . Ld App further contended that DW2 admitted that 1516 days before, Akhtari asked him to appear as witness in this case as her advocate had told that she should produced as a defence witness. In the cross examination also, DW2 has stated that he cannot identify the boy and girl from the accused persons. DW2 has further stated that he cannot say that accused Akhtari had not sold the girl to Maan Singh. So the answer of DW2 regarding selling of PW1 to Maan Singh is not denied rather it shows that he has no knowledge whether Akhtari had sold the girl to Maan Singh or not.
SC No. 134/1 15/28
In view of admission of DW2 Mohd Mustaffa that he had come to the Court and has deposed before the court at her instance, DW2 cannot relied upon in any manner to the extent that girl and boy came and told Akhtari that they were requiring house on rent. More so this defence evidence is not in consonance with the cross examination of PW1. It was suggested that PW1 prosecutrix came to the house of Akhtari to Baghpat at her own and she also accompanied Maan Singh at her own. Both these suggestions have been denied by PW1. In absence of any such suggestion about the fact as disclosed by DW2 Mohd Mustaffa in defence, he cannot be relied upon and it seems to be an after thought.
In view of the above, prosecution has been able to prove the facts beyond reasonable doubts that accused Akhtari, who was residing in Ghaziabad took PW1 prosecutrix to Baghpat on the false pretext that she would keep her in her house and kept her for about 1015 days and thereafter she sold the prosecutrix to Maan Singh for a sum of Rs.5000/.
To prove offence u/s 373 of IPC, prosecution has to prove that accused Akhtari sold or otherwise disposed of a person under the age of 18 years and that such person shall be used for the purpose of illicit intercourse with any other person. In this case, it has already been discussed and held that prosecutrix was aged about 18 years at the time of incident, after taking average age as per Ex.PW18/A that she was more than 17 years but was less then 19 years. So at that time when accused Akhtari sold PW1 prosecutrix to Man Singh, she was 18 years. Hence one of the ingredient that a person should be under the age of 18 years is not proved by prosecution in any manner. SC No. 134/1 16/28 Accordingly, prosecution has not been able to prove offence u/s 372 of IPC against accused Akhtari for which she is acquitted.
Offence u/s 373 of IPC is in respect of buying for purpose of prostitution etc. This is not the case of prosecution that accused Akhtari had purchased PW1 prosecutrix from anyone, for the purpose of prostitution etc. There is no such deposition of PW1 against accused Akhtari in any manner. More so, even if we assume that accused Akhtari obtained possession of the PW1 prosecutrix otherwise, even the she was above 18 years of age, hence prosecution has not been able to prove offence u/s 373 of IPC against accused Akhtari for which she is acquitted. However, from the deposition of PW1 prosecutrix, it is proved that accused Akhtari by deceitful means enticed her to go from Ghaziabad to Baghpat with her and in this manner, accused Akhtari abducted PW1 prosecutrix with intention that she may be compelled or will be compelled to marry any person against her will and will be forced or seduced to illegal intercourse and it has come in the evidence of PW1 prosecutrix that she was sold to Maan Singh for a sum of Rs.5000/, who further forcibly committed sexual intercourse with her. So prosecution has been able to prove offence u/s 366 of IPC against accused Akhtari beyond reasonable doubts for which she is held guilty and convicted for the same. Findings qua offence u/s 120B of IPC read with section 376 of IPC and qua offence u/s 109 of IPC read with section 376 of IPC against accused Akhatri.
In this respect, only evidence which has come against accused Akhtari in the deposition of PW1 prosecutrix is that when Rajesh turned her SC No. 134/1 17/28 out of the house, Akhtari, who was residing in Ghaziabad took her at Baghpat on the false pretext that she would keep her in her house . She kept her for about 1015 days and she threatened her not to talk to anyone. Later on she sold prosecutrix for Rs.5000/ to accused Maan Singh. The testimony of PW1 is unrebutted and unshaken in this respect as already discussed above. So it is proved from the facts and circumstances as deposed that accused Akhtari entered into a criminal conspiracy with accused Maan Singh to do an illegal act i.e. selling of prosecutrix, who was abducted by accused Akhtari from Ghaziabad and further sold her to accused Maan Singh for a sum of Rs.5000/, but it cannot be said that accused Akhtari was knowing that PW1 prosecutrix will be subjected to sexual intercourse against her will and without her consent by accused Maan Singh. So prosecution has been able to prove the offence u/s 120B of IPC only and not offence u/s 376 of IPC read with section 120B of IPC against accused Akhtari, for which she held guilty and convicted for the same.
In respect of offence u/s 109 of IPC, it is difficult to say that accused Akhtari instigated or intentionally aided in committing sexual intercourse by accused Maan Singh upon PW1 prosecutrix forcibly, hence offence u/s 109 of IPC read with section 376 of IPC is not proved by the prosecution in any manner. Accordingly, accused Akhtari is acquitted for offence u/s 109 of IPC.
Findings qua offence u/s 373 of IPC against accused Maan Singh.
In this respect, prosecutrix has deposed that accused Akhtari sent her with accused Maan Singh. Accused Maan Singh gave money to Akhtari. He SC No. 134/1 18/28 gave Rs.5000/ to Akhtari and she was taken by Maan singh in his village. Accused Maan Singh also forcibly conducted sexual intercourse with her. In the cross examination, PW1 has stated that Maan Singh was called by accused Akhtari, on the same day, she was sent with Maan Singh by Akhatri. Maan Singh arrived at about 2.pm and she was sent with him at about 2.30 pm. Accused Akhtari accompanied them upto the house of accused Maan Singh. They went to the house of Man Singh by taxi. They travelled for about two hours for reaching the house of Man Singh. Akhtari left after leaving her in the house of accused Man Singh. Parents of Maan singh were present in the house. Maan Singh introduced her to his parents. She came to know that wife of Maan Singh had died. He was rickshaw puller. He used to leave the hosue at 7.00 am and used to come back at about 3.00 pm. During day time, she used to stay with his parents. PW1 prosecutrix has further stated in the cross examination that she was not allowed to move out of the house. She never used to go out of the house. She stayed in the house of Maan singh for about one month. Accused Maan singh tried to perform marriage with her in the court, but she did not agree.
PW2 Veedo has stated that her daughter was recovered after more than three months from Khanpur from the house of accused Maan Singh. Police brought her. She was medically examined and her statement was recorded. PW2 has not been cross examined on behalf of accused Maan Singh in any manner.
PW7 ASI Mohd Mustaq has stated that on 26/02/02, he was posted at PS Rajouri Garden as Duty Officer. ASI Tara Chand handed over to him SC No. 134/1 19/28 rukka at about 5.00 pm and on the basis of same, he recorded the FIR of this case, copy of which is Ex.pW7/A. He handed over the copy of FIR and and rukka to Ct Jitender to further hand over the same to ASI Tara Chand.
PW13 Ct Jitender has further corroborated and has stated that on 26/02/2002, he was on reserve duty at PS Rajouri Garden. Duty officer handed over to him a copy of FIR, which he handed over to ASI Tara Chand.
PW20 ASI Tara Chand has stated that on 26/02/2002, he was posted at PS Rajouri Garden. One Santra Devi came to him at about 4.30 pm, at the PS. He recored her statement and made endorsement Ex.PW20/A on the same day and got registered the case. He searched for the girls, but they were not traced and thereafter, he went to leave and investigation was transferred.
PW21 ASI Latif Khan has stated that he visited Baghpat and met Akhtari, but both the girls were not there at the house. On the way back, he found that there was an STD booth. He gave his phone number and asked owner of STD booth to inform him when he will come to know about the girls. On 29/05/02 he received information that the prosecutrix could be found at the house of accused Maan Singh at PS Saharanpur. He left Delhi on 300502 and also took vedo mother of prosecutrix with him and Ct Jagbir and Lady constable Sanyogita and reached village Khanpur . They reached at the house of accused Maan Singh, where prosecutrix was found, who was identified by her mother. He recorded the statement while coming back to Delhi, accused Akhtari was arrested at Baghpat. Arrest memo of accused Akhtari is Ex.PW9/B Thereafter, they reached back to Delhi. On 23/07/02, accused Maan Singh was arrested from village Khanpur, district Sharanpur vide arrest memo SC No. 134/1 20/28 Ex.pW21/G and his personal search was conducted vide memo Ex.PW21/H. PW21 has stated in the cross examination that after receiving the information about PW1 at Sharanpur, one DD was recorded in this respect and he left PS after informing the senior officers at 10.00 am on 30/05/02. They had gone in private Tata sumo. They reached at Khanpur at about 6.00 pm. He made inquiries about the house of accused Maan Singh and reached there at the house of accused Maan Singh. They remained at the house of accused Maan Singh for about two hours. He prepared documents in the house of accused Maan Singh. He also reached at PS Gangoo for the first time at about 8.30 pm. The police station was at a distance of about 2 and half kilometer from village Khanpur. They reached back to Delhi at about 1.00 am. After reaching at Delhi PW1 was sent for her medical examination on 31/05/02 at DDU hospital. She was taken by Lady constable Sanyogita. PW21 has denied the suggestion that PW1 prosecutrix was not recovered as alleged or that he never visited to Baghpat or Khanpur or other places.
PW9 Lady Ct Sanyogita has stated on 31/05/02, she was posted at PS Rajouri Garden and on that day, he alongwith PW21 ASI Latif went to Khanpur, Sharanpur, UP, in the house of accused Maan Singh from where PW1 was recovered. Thereafter, they came back to Takeeyawali Masjid, Baghpat. On the statement of prosecutrix, accused Akhtari was also arrested. Her personal search was conducted. Thereafter, she was brought to Delhi. Personal search memo of accused Akhtari is Ex.PW9/A and her arrest memo is Ex.PW9/B. In the cross examination, PW9 has stated that prosecutrix was SC No. 134/1 21/28 recovered from the house, which was single storey house. PW9 has denied the suggestion that she never associated in the investigation. If no evidence was collected regarding ownership of the house then it does not mean that police did not visit the house of accused Maan Singh. Both PW21 and PW9 have corroborated each other regarding recovery of PW1 from the house of accused Maan Singh. PW2 has corroborated both these witnesses and has stated that her daughter was recovered from the house of Maan Singh from Khanpur. PW2 has not been cross examined in any manner on this aspect on behalf of accused Maan Singh, hence her testimony is unrebutted and unshaken in this respect. PW1 prosecutrix, has also deposed before the Court that one day her parent reached there and brought her back to Delhi. She was medically examined and her statement was recorded by the magistrate. Even in the cross examination, PW1 has stated that she was brought by the police from the house of accused Maan Singh. Her jeth and her mother accompanied the police, at the time of recovery from the house of accused Maan Singh.
In the statement recorded u/s 313 of Cr.Pc accused Maan Singh has stated that he is victim of circumstances and has further admitted that he has duly married with complainant, who remained with him and his family for more than one month without any pressure or threat. In support of his contention, accused Maan Singh has examined DW1 Naresh who has stated that he knows accused Maan Singh as his house in village is close to his house. His old parents resides with him. Wife of accused Maan Singh died about two years back during the course of delivery. Thereafter, he married again, but he does not know the name of his wife. They were residing happily SC No. 134/1 22/28 as husband and wife. Maan Singh and his wife used to visit his house and he also used to visit their village. Wife of Maan Singh used to visit other places at the village. Police went to the village and brought wife of Maan Singh. In the cross examination, he has stated that he is not summoned witness and has come in the court alognwith Maan Singh.
PW1 has denied the suggestion that accused Maan Singh had performed marriage with her and kept her as his wedded wife. PW1 ha voluntarily stated that he tried to perform marriage with her in the court, but she did not agree.
On the other hand, Maan Singh has not been able to brought on record any proof of his marriage with prosecutrix and that she remained with him as his wedded wife. PW1 prosecutrix has also explained as to why she did not raise any hue and cry, in her cross examination that she was not allowed to move out of her house and she never used to go out of the house of accused Maan Singh and was stayed in the house of accused Maan Singh for about one month. So the deposition of the witness inspires confidence and from the deposition of PW1 prosecutrix, it has been proved beyond reasonable doubts that PW1 was sold to accused Maan Singh for a sum of Rs.5000/ by accused Akhtari and he took prosecutrix to his house in his village, where she stayed with the accused Maan Singh for about one month.
To prove the offence u/s 373 of IPC, prosecution has to prove that accused Maan Singh purchased a minor person, but in view of the above discussion, it has already been held that prosecutrix was aged about 18 years at the time of incidence, hence one of the necessary ingredient that the person has SC No. 134/1 23/28 been purchased should be under the age of 18 years is not proved, hence prosecution has not been able to prove offence u/s 373 of IPC against accused Maan Singh for which he is acquitted but it has also been discussed and proved that PW1 prosecutrix was abducted by accused Akhtari and was sold her to accused Maan Singh. From the fact and circumstances and from the deposition of witnesses, it is proved that accused Maan Singh was knowing that PW1 was abducted because he had purchased prosecutrix from accused Akhtari and thereafter he kept the prosecutrix in his house for about one month. It is also evident from the cross examination of PW1 prosecutrix conducted on behalf of accused Maan Singh that he was not allowed to move out of the house. She never used to go out of the house and stayed in the house of accused Maan Singh for about one month. It is also evident and proved from the deposition of PW2 Vedo, PW9 Lady Ct Sanyogita and PW21 ASI Latif Khan that PW1 was recovered from the house of accused Maan Singh, who have corroborated each other and inspires confidence, so prosecution has been able to prove offence u/s 368 of IPC beyond reasonable doubts against accused Maan Singh for which accused Maan Singh is held guilty and convicted for the same. Findings qua offence u/s 120B of IPC read with section 376 of IPC and qua offence u/s 376 of IPC against accused Maan Singh.
In this respect, PW1 has stated that she was purchased by accused Maan Singh from accused Akhtari for a sum of Rs.5000/. Accused Maan Singh took her to his house in village and forcibly conducted sexual intercourse SC No. 134/1 24/28 with him. Accused Maan Singh told her that he would sell her after having good price. The defence raised by accused Maan Singh is that the prosecutrix remained with him and his family for more than one month after being duly married with him without any pressure or threat. But the same has been denied by PW1 prosecutrix , she has denied the suggestion that accused Maan Singh performed marriage with her and kept her as his wedded wife. PW1 has voluntarily stated that accused Maan Singh tried to perform the marriage with her in the court, but she did not agree.
DW1 Naresh has stated that accused Maan Singh married again after death of his wife about two years back and he resided happily with his wife but neither DW1 has stated that he can identified wedded wife of accused Maan Singh nor marriage was performed in his presence. In the cross examination, DW1 has admitted that the lady with whom accused Maan Singh had married again after the death of his wife was not residing in the village prior to marriage with Maan Singh, which also shows that accused Maan Singh had purchased prosecutrix from accused Akhtari against the sum of Rs.5000/ and no marriage was performed in between prosecutrix and accused Maan Singh. Accused Maan Singh has not been able to substantiate his defence in any manner.
The plea of accused Maan Singh that prosecutrix resided with her as his wedded wife itself shows that he committed sexual intercourse with prosecutrix during the period of one month, when prosecutrix was residing with him.
PW1 has further clarified that she was not allowed to move out of SC No. 134/1 25/28 the house and she never used to go out of the house which also shows that she was kept under confinement. Had PW1 prosecutrix been wedded wife of accused Maan Singh then there was no need to keep her in confinement and not to allow her to move out of the house.
PW1 prosecutrix has specifically stated that accused Maan Singh forcibly conducted sexual intercourse with her, so even if she was aged about 18 years at that time, she had not given consent for sexual intercourse with her to accused Maan Singh.
After bringing back the prosecutrix from the house of accused Maan Singh, she was sent for medically examination with PW9 Lady Ct Sanyogita. Her testimony inspires confidence regarding this.
PW8 Dr has Babita Gabriyal has stated that on 27/06/02, she examined the prosecutrix and there was no external injury or fresh bleeding from any side. She advised the Xray for bony age vide MLC Ex.PW8/A. Dr. Babita has further deposed that on 29/07/02, she has also examined Maan singh and has proved MLC Ex.pW8/B. According to the opinion of PW8, there was nothing to suggest that patient was not capable of doing sexual intercourse.
PW8 Dr. Babita has been cross examined only on the aspect that no alleged history of sexual assault or rape or kidnapping was given by the police or by prosecutrix herself. In this respect, PW1 has not been cross examined in any manner that she had not given the alleged history of kidnapping or rape. So there is no explanation on the side of PW1 prosecutrix as why the alleged history was not given, hence in my view the deposition of SC No. 134/1 26/28 PW1 is sufficient to prove that she was raped by accused Maan Singh. Illiteracy plays a big role in such circumstances. Prosecutrix might have not been asked about the alleged history. It is also not written that no alleged history was given, so it may be a lapse on the part of the doctor, who examined the prosecution.
PW16 is Dr. Aruna. She has also examined prosecutrix on 31/05/02 and she referred to the prosecutrix for gyanee check up and adviced for sealing of her undergarments and taking of vaginal swab vide MLC Ex.PW16/A. According to the MLC, Ex.PW16/A, hymen of the prosecutrix was found torn.
In view of the above discussion, statement of PW1 inspires confidence that accused Maan Singh forcibly conducted sexual intercourse with the prosecutrix. The defence of accused Maan Singh is also corroborating the same, where he has stated that prosecutrix stayed with him for about one month in his house as his wedded wife, but accused Maan Singh has not been able to substantiate the plea that he got married with prosecutrix. According to the MLC of PW1 Ex.PW16/A, her hymen was found torn, so the same is also corroborating with the deposition of PW1 prosecutrix that she was raped forcibly by accused Maan Singh.
Accused Maan Singh entered into criminal conspiracy with accused Akhtari to do an illegal act and purchased prosecutrix for a sum of Rs.5000/ and committed rape upon the prosecutrix, hence prosecution has been able to prove offence u/s 120B of IPC for which accused Maan Singh is convicted and prosecution has also been successfully able to prove the SC No. 134/1 27/28 offence u/s 376 of IPC against accused Maan Singh for which he is held guilty and convicted for the same.
Announced in Open Court on dated 18th of August, 2011 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC No. 134/1 28/28 IN THE COURT OF SH. VIRENDER KUMAR GOYAL ADDL SESSIONS JUDGE: FAST TRACK COURT ROHINI: DELHI SC No. 134/01 Unique Identification No. 02404R0508872002 State / Vs Smt Akhtari W/o Akhatr R/o Nai Basti, Takia Wali Masjid, Baghpat, UP FIR No. 125/02 PS - Rajouri Garden U/s 366/120B of IPC Date of Decision: 18/08/2011 Date of order on sentence: 20/08/2011 ORDER ON SENTENCE 20/08/2011 Present. Ld. Addl. PP for State.
Convict Akhtari from J.C. with counsel Sh. Ramesh Uniyal, Adv.
Heard.
Learned defence counsel submits that convict Akhtari is aged about 70 years. She is having husband, aged about 75 years, who is ill, to look after. She is housewife. She has four daughters and one son. All the daughters are married and her son is aged about 16 years and is learning furniture making. She is working as midwife and is helping in the delivery of the children. She is the only SC No. 134/1 29/28 2 bread earner of her family. She is not a previous convict nor habitual offender.
On the other hand, learned Addl. PP has contended that convict Akhtari has been convicted for the offence U/s 366/120B of IPC, which are punishable with imprisonment for a term, which may extend to 10 years and shall also be liable to fine and she is also liable to be sentenced U/s 120B of IPC separately. Hence, appropriate sentence be imposed.
I have considered the submissions of Ld. APP for State and learned defence counsel for convict. Convict Akhtari has already undergone two years and 14 days custody during trial and now also she is in custody since 18.08.2011.
Considering the above facts & circumstances and also age, antecedents and character of the convict, I am of the opinion that a chance should be given to the convict to reform herself. Accordingly, sentence of two years and 15 days is imposed U/s 366 of IPC upon convict Akhtari with fine of Rs. 10,000/, in default of payment of fine, she will further undergo imprisonment for six months S.I. Sentence of six months S.I. is imposed U/s 120B of IPC with fine of Rs. 5000/, in default of payment of fine, she will further undergo imprisonment for one and ½ month of S.I. Convict Akhtari remained in custody from 30.05.2002 to 13.02.2004 and from 15.04.2004 to 15.09.2004 and from 18.08.2011 till today. SC No. 134/1 30/28
3 Benefit of section 428 Cr.P.C. be given to the convict Akhtari. If fine is deposited, then Rs. 10,000/ be given to the prosecutrix as compensation out of fine, after the expiry of the period of limitation for filing appeal.
All the substantive sentences shall run concurrently. Fine not deposited. Convict is remanded to serve the sentence. Announced in Open Court on dated 20th of August, 2011 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC No. 134/1 31/28