Delhi District Court
State vs Bhateri on 18 August, 2011
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 135/01
Unique Identification No. 02404R0442682006
State
Versus
Bhateri
Wife of Mukesh
R/o VPO Khewda
PS Rai,
District Sonepat (Haryana)
FIR No. 125/02
PS - Rajouri Garden
U/s. 36/366/372/373/376/120B/109 IPC
Date of institution of the case: 22/09/2006
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 IPCregarding the missing of two girls. Later on, 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 SC No. 135/1 1/15 conducted. MLC of Kumari Baby, Rajesh Kumar and Prosecutrix were collected. Bone age Xray of prosecutrix was also got conducted. MLC of accused Maan Singh was also collected. 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. 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.
During the proceedings, accused Santra died and accused Rajesh was declared proclaimed offender.
Accused Bhateri was declared proclaimed offender.
Later on, during proceedings, accused Bhateri was arrested on 18/09/2006. Supplementary chargesheet was filed against her. The same was committed to the court of Sessions and was received on 15/09/08.
Charge u/s 120B read with section 376 of IPC, U/s. 363 read with Section 34 of IPC, U/s. 366 read with Section 34 of IPC, 109 read with Section 366 of IPC and U/s. 372 read with Section 34 of IPC was framed against accused Bhateri on 29/05/2008 to which she pleaded not guilty and claimed trial.
To prove its case, prosecution has examined PW1 to PW25 in all. On completion of evidence of prosecution, statement of accused Bhateri was recorded. She has denied the case of prosecution and has stated that she is innocent and has no role and connection with the present case. She has been falsely implicated by the police just to harass her. SC No. 135/1 2/15
In defence, accused Bhateri has examined DW1 Mukesh Kumar. I have heard learned Addl. PP for State, learned defence counsel for accused Bhateri and have gone through the evidence brought on record with material placed.
Finding qua offence U/s. 363/34 of IPC, U/s. 366/34 of IPC and U/s. 109 read with Section 366 of IPC:
To prove these offences, prosecution has examined prosecutrix as PW1. She has stated that on 13/02/2002, she alongwith her mother and brother used to live in a jhuggi in Raghubir Nagar, Delhi. One girl,namely, Baby, daughter of Santra, was living in her neighbourhood and was her friend. On that day, at about 7.00 a.m., Baby took her to ganda nala, which was situated at some distance from her house. Accused Santra (since expired) and accused Bhateri met her there. They told her that they were going to look for a boy to perform marriage of Baby and that she should accompany them so that she could see would be husband of Baby. Then, accused Santra (since expired), Baby and accused Bhateri took her to Ghaziabad.
PW1, prosecutrix, has further deposed that in Ghaziabad, they had taken her to a house i.e. an empty room. Accused Bhateri and Santra (since expired) told her that she should stay there and that they would return back in a short while. She and Baby remained in that room. Thereafter, Baby made a telephone call and called one boy,namely, Rajesh. Rajesh came there. Rajesh did wrong act with her and Baby. By wrong act, she means to say that he indulged in sexual act. Rajesh did so against her wishes. He threatened her and gave beatings and then removed her from the room in the night. Baby remained SC No. 135/1 3/15 inside the room. Rajesh told her that if she would perform marriage with his brother Bhagona, then he would allow her to stay in the room. She remained outside the room for whole of the night, but stayed in the compound of the house.
PW1 has further deposed that in the morning, accused had snatched gold locket of "OM", which she was wearing around her neck. One lady,namely, Gayatri met her outside the house, where she was kept in the night in Ghaziabad. Rajesh handed over her to Gayatri. Thereafter, Gayatri took her to Bagpat on the pretext that she would bring her at her house. Gayatri also threatened her that she should not disclose the aforesaid facts to any person. Gayatri kept her at her house for about 20 days. So, the role of accused Bhateri has been deposed by PW1, prosecutrix, to the extent that she was taken by accused Bhateri alongwith Baby and Santra to Ghaziabad, where PW1, prosecutrix, stayed with Baby in a room.
Before appreciating the evidence of PW1, it has to be decided as to what was the age of the prosecutrix at the time of incident. In her examination, PW1 has nowhere deposed her age at the time of incident, whereas PW3 Smt. Vedo, mother of PW1, prosecutrix, has stated that her daughter was aged about 16 years at that time and her bone age Xray was also conducted. No date of birth certificate has been brought on record to prove the age of the prosecutrix.
In this respect, PW18 Dr. Nishu Dhawan has been examined. She has identified the writing and signatures of Dr. A.K. Gupta. On 27/05/2003, X ray plates of PW1, Prosecutrix, were examined by Dr. A.K. Gupta. PW18 has also proved report of Dr. A.K. Gupta as Ex. PW18/A, according to which, age SC No. 135/1 4/15 of the prosecutrix was more than 17 years, but was less than 19 years. So, in absence of date of birth certificate issued by MCD or any school certificate, the bone age Xray report has to be relied upon and after taking average age in between 17 to 19 years, it is clear that on the day of incident, PW1, prosecutrix, was aged about 18 years. In the cross examination, PW1, prosecutrix, has stated that when she accompanied Baby, at that time, her mother was not in the house as she had gone to attend her job. PW1, prosecutrix, has further deposed in the cross examination that from Delhi, accused Bhateri and her companion took her to Ghaziabad in a bus. They had taken the bus from near ganda nala and the bus had directly taken them to Ghaziabad. The bus hardly took 1015 minutes to reach Ghaziabad from Ganda Nala.
Learned defence counsel has contended that Raghubir Nagar, Rajouri Garden, Delhi, is far away from Ghaziabad and within 1015 minutes, no one can reach from Raghubir Nagar to Ghaziabad in a bus. Hence, PW1, prosecutrix, cannot be relied upon. She has further stated that she was kept in Ghaziabad for about 20 days and she does not know if Rajesh was doing job or work, but he remained with her in the room for 1520 days. She used to go to the market to purchase goods in Ghaziabad. Rajesh had threatened her that she should not tell that she was being kept in that room and therefore in the market, she did not tell the said fact to any person.
PW1, prosecutrix, has denied the suggestion that accused Bhateri was not known to her before the incident and somebody had told her about accused Bhateri. PW1 has also denied the suggestion that accused Bhateri and Santra had not accompanied her to Ghaziabad.
SC No. 135/1 5/15
PW3 is Smt. Vedo. She is mother of the prosecutrix. She has stated that she alongwith Santra went to PS Rajouri Garden and lodged report. Before they went to PS for lodging the complaint, Santra was reluctant to lodge the complaint. After three months, after running from pillar to post, she came to know that Balbir and Santra brought their daughter Baby and Rajesh to the PS. She went to the PS. Whole family of Santra gathered there. Baby and Rajesh were sitting on the bench. She asked whereabouts of her daughter. She came out of the PS crying for her daughter. Police informed her that Baby, Rajesh and Santra had informed the whereabouts of her daughter, who was at Bagpat at the house of one Akhtari. She alongwith police officials and Rajesh went to Bagpat and Baby remained in the PS. Rajesh told that he knew the house of Akhtari, but when they reached there, Akhtari and her daughter were not found there. When they turned back in the vehicle, Akhtari was coming from the front side, to whom, Rajesh identified and she was caught by the police. Police took her to local police station at Bagpat and thereafter they came back to Delhi. Akhtari told that her daughter was not with her, but Rajesh told that he had handed over the prosecutrix to her. Thereafter, Akhtari confessed that she had sold the prosecutrix for Rs. 5500/ to one Man Singh. On the next day, they went to the village of Man Singh, where she found her daughter sitting near corner of the main gate of the house of Man Singh. Her daughter cried and she met with her daughter. Thereafter, police recorded her statement.
From this part of the deposition of PW3 Smt. Vedo, it is clear that Baby, daughter of accused Santra (already expired) was also missing. Hence, it seems improbable that she was reluctant to make complaint. In fact, this case SC No. 135/1 6/15 was registered on the statement of Santra only and it is also evident from the statement of PW3 Smt. Vedo that she came to know that Balbir and Santra brought their daughter Baby and Rajesh to the PS. If Bhateri and Santra were involved in the kidnapping and abduction of PW1 prosecutrix, then there was no need for accused Santra (since expired) to wait for three months and to bring their daughter baby and Rajesh to PS. Not only this, Rajesh and Santra also informed whereabouts of the prosecutrix that she was at Bagpat in the house of one Akhtari and PW3 Smt. Vedo visited the house of Akhtari in the village, where, while they were returning, Akhtari met them and she was arrested, who disclosed that she had sold the prosecutrix to one Man Singh and police had recovered the prosecutrix from the house of accused Man Singh, while PW3 smt. Vedo accompanied the police to the house of accused Man Singh. So, it seems to be more probable that both Baby and prosecutrix went missing from their houses together and Kumari Baby might have an affair with accused Rajesh (since P.O.) and whatever had happened to the prosecutrix could be at the hands of accused Rajesh (P.O.).
PW3 Smt. Vedo has also been asked some leading questions by learned Addl. PP, wherein ld. APP specifically put to her that accused Santra (since expired) and Bhateri took and induced her daughter to Ghaziabad, where she was given to Rajesh, who committed rape upon her, to which, PW3 Smt. Vedo replied that she does not know about this and even her daughter did not disclose the same to her. This itself fortify that both went missing at their own.
Learned defence counsel has contended that from the cross examination of PW3 Smt. Vedo, it is clear that on the day of the incident, she SC No. 135/1 7/15 had no suspicion on any person, but she doubted on Santra (since expired) as her daughter had run away 23 times with Rajesh. It also shows that Baby was not under the control of her mother, hence it seems to be improbable that Bhateri and Santra (since expired) had taken or enticed away PW1 prosecutrix to Ghaziabad.
Other witness regarding giving the room at Ghaziabad is PW4 Smt. Mehrul Nisa, who has not supported the case of the prosecution nor has identified any of the person and has stated that her son Raza Khan let out one room to one boy, who resided with one female, to whom, he introduced as his wife and left the room after one month and did not even pay the rent. In view of this deposition, it is difficult to say whether in the said room, one boy resided with two girls or with one girl or who were those boy and girls. No other witness has been examined regarding letting out of the room to the boy. So, PW4 Smt. Mehrul Nisa is not helpful to the case of the prosecution in any manner.
To prove offences u/s. 363/34 of IPC, 366/34 of IPC and 109 read with Section 366 of IPC, prosecution has to prove that the prosecutrix was under 18 years of age at the time of incident, but as already discussed above, at that time, prosecutrix was aged about 18 years, so, she was not under the age of 18 years at the time of incident. More so, PW3 Smt. Vedo did not suspect Santra or accused Bhateri at that time in any manner. Complaint was lodged by Santra (since expired) because her daughter Baby also went missing. It also seems to be doubtful that Santra (since expired) and Bhateri accompanied both prosecutrix and Baby to Ghaziabad as testimony of PW1 prosecutrix is not SC No. 135/1 8/15 inspiring any confidence that they reached from Raghubir Nagar to Ghaziabad within 1015 minutes in a bus. The testimonies of PW1 prosecutrix and PW3 Smt. Vedo are contradictory.
From the testimony of PW3 Smt. Vedo, conduct of Santra (since expired) shows that her daughter also went missing and she was traced after about three months with Rajesh. They were brought to PS, where Rajesh (PO) and Santra (since expired) informed about the prosecutrix that she was at Bagpat in the house of one Akhtari. So, certainly, information was received from accused Rajesh (since P.O.), who also accompanied the police to the house of accused Akhtari, who after her arrest, confessed that she had sold the prosecutrix to accused Man Singh against a sum of Rs. 5500/. From these circumstances, it is difficult to believe that Bhateri was involved in kidnapping or abduction of the prosecutrix accompanied by accused Santra (since expired) because Santra herself lodged report and at that time, PW3 Smt. Vedo was not having any suspicion on her regarding her involvement in the incident and even Baby and daughter of accused Santra (since expired) also went missing.
It also seems to be highly improbable that a mother could have left her daughter without knowing as to for what reasons and why both were left there by accused Santra (since expired) and accused Bhateri in Ghaziabad in an empty room. It also seems to be doubtful that prosecutrix was taken away by baby alongwith accused Bhateri and accused Santra (since expired) on the pretext that they were going to see a bridegroom for baby. Even if they were going to see a bridegroom for Kumari baby, then both were not required to be left there in Ghaziabad in an empty room. It shows and seems to be more SC No. 135/1 9/15 probable that both prosecutrix and Kumari Baby went missing at their own and accused Bhateri had nothing to do with the kidnapping or abduction of the prosecutrix. The contentions of learned defence counsel are forceful in this respect. So, prosecution has not been able to prove offence u/s. 363/34 of IPC against accused Bhateri beyond reasonable doubts, for which, she is acquitted.
Similarly, neither kidnapping nor abduction of prosecutrix has been proved. So, it cannot be said that accused Bhateri had any intention that prosecutrix might be forced or seduced to illicit intercourse or was knowing that it would be likely that prosecutrix would be forced or seduced to illicit intercourse because the story of accompanying of accused Bhateri and Santra (since expired) itself is doubtful, as discussed above. Hence, prosecution has also not been able to prove offence U/s. 366/34 of IPC against accused Bhateri, for which, she is acquitted.
In view of above discussion and the evidence brought on record, it cannot be said that accused Bhateri with coaccused Santra (since expired) abetted the commission of rape by accused Rajesh because prosecutrix was major at that time i.e. about 18 years of age and she was not kidnapped or abducted in any manner. No evidence has been brought on record that there was any abetment from the side of accused Bhateri and Santra (since expired) to accused Rajesh to commit illicit intercourse with prosecutrix as story of accompanying of Bhateri with Santra (since expired) is itself doubtful. Hence, prosecution has also not been able to prove offence u/s. 109 read with Section 366 of IPC in any manner, for which, accused Bhateri is acquitted. SC No. 135/1 10/15 Finding qua offence U/s. 120B read with Section 376 of IPC:
In this respect, PW1, the prosecutrix, has stated that when they reached at the room, Baby made a telephone call and called one boy Rajesh, who came at the room. Rajesh did wrong act with her and Baby. By wrong act, she means to say that he indulged in sexual act. Rajesh did so against her wishes. He threatened her and gave beatings and then removed her from the room in the night. Except this, there is no evidence brought on record that the accused persons i.e. Bhateri and Santra (since expired) entered into a criminal conspiracy with Rajesh for committing rape upon the prosecutrix. It is evident from the deposition of PW3 Smt. Vedo that she doubted on Santra (since expired) because her daughter had run away 23 times with Rajesh. If pW3 Smt. Vedo was knowing this fact that Baby had run away 23 times with Rajesh, then certainly, it was also within the knowledge of accused Santra (since expired) and she could not have been expected to leave her daughter Kumari baby alongwith the prosecutrix in an empty room at Ghaziabad, where accused Rajesh (since P.O.) had to come later on. The story itself seems to be highly improbable that a mother would leave her daughter in an empty room in Ghaziabad for nothing, whereas according to prosecutrix, she was taken there for looking a bridegroom for Baby. From the testimony of PW1, the prosecutrix, it has not come on record that the prospective bridegroom was seen either by accused Bhateri or by accused Santra (since expired). So, the very core of the story is doubtful and the conduct of parties with the plea is neither corroborating nor natural. The plea as raised by PW1, the prosecutrix, on which, she was taken to Ghaziabad, is against the natural conduct of human SC No. 135/1 11/15 being, rather seems to be more probable that they both went missing and went to Ghaziabad at their own, where Kumari Baby had to meet with accused Rajesh (PO).
In such circumstances, it cannot be said that accused Bhateri, at any time, entered into a criminal conspiracy with other accused persons for committing rape upon the prosecutrix. From the statement of PW3 Smt. Vedo, it is clear that Rajesh (PO) disclosed that he had handed over PW1 to Akhtari, who further sold the prosecutrix to Man Singh for a sum of Rs. 5500/. So, it seems to be highly improbable that accused Bhateri had entered into a criminal conspiracy with Rajesh, Akhtari and Man Singh to that extent. So, from the above facts and circumstances as deposed in evidence brought on record, none of the witness inspires any confidence that accused Bhateri entered into a criminal conspiracy with coaccused persons for offence U/s. 376 of IPC. Accordingly, accused Bhateri is acquitted for the offence U/s. 120B read with Section 376 of IPC.
Finding qua offence U/s. 372/34 of IPC:
As per deposition of PW1, the prosecutrix, she was taken on the pretext of seeing the would be bridegroom of Kumari Baby to Ghaziabad by accused Bhateri and accused Santra (since expired), but the same has been disbelieved, as discussed above, and no evidence has been brought on record that accused Bhateri was having any common intention that accused Rajesh, who handed over the prosecutrix to Akhtari, who further sold the prosecutrix to accused Man Singh for a sum of Rs. 5500/. Even otherwise, as it has already been held that age of the prosecutrix at the time of incident was about 18 years, SC No. 135/1 12/15 so, she was not under age of 18 years at that time, hence, one of the ingredient of Section 372 of IPC is not proved in any manner. There is no evidence that in furtherance of common intention with coaccused, accused Rajesh (PO) sold the prosecutrix to Akhtari.
It has come in the evidence of PW3 Smt. Vedo that after the recovery of accused Rajesh and Baby, they disclosed whereabouts of prosecutrix that she was at Bagpat in the hosue of Akhtari and Akhtari after her arrest, lateron disclosed that she had sold the prosecutrix for a sum of Rs. 5500/ to accused Man Singh. No evidence has been brought on record that accused Rajesh, Akhtari and Man Singh were known to accused Bhateri in any manner. Hence, in absence of any such evidence, there could not be any common intention to sell the prosecutrix for the purpose of illicit intercourse to accused Man Singh.
In defence, DW1 Mukesh Kumar has been examined, who has deposed about the arrest of accused Bhateri only. From her house, he accompanied his wife and police. Accused Bhateri was taken to PS Paschim Vihar and she was kept in police station, whereas according to PW22 ASI Dipender Singh alongwith PW24 lady Constable Sudesh, he was searching accused Bhateri (PO) in the area of Mukarba Chowk, GT Karnal road on 03/09/2006 and at about 8.15 a.m., while they were present at bus stand Mukarba Chowk, they received secret information about accused and on the pointing of secret informer, they apprehended accused Bhateri and verbally arrested her U/s. 41.1 of Cr.PC and was removed to PS Paschim Vihar.
PW23 SI Joginder Singh has stated that he made inquiries from SC No. 135/1 13/15 accused Bhateri, when she was produced before him and informed the concerned PS vide DD No. 18B. Thereafter, he prepared kalandara U/s. 41.1 Cr.P.C and arrested accused Bhateri vide memo Ex. Pw22/A. Personal search of accused Bhateri was conducted vide memo Ex. PW22/B and kalandara is Ex. PW23/A. It has not been suggested to PW24 lady Constable Sudesh that accused Bhateri was lifted from her house. In the cross examination, PW22 ASI Dipender Singh has stated that he had not visited the house of accused Bhateri prior to her arrest and has denied the suggestion that he visited the house of accused Bhateri in the village, one day prior to her arrest and informed her that she was wanted in case Fir No. 125/02 of PS Rajouri Garden. PW22 has denied the suggestion that accused Bhateri was arrested from her house in the evening. The cross examination of PW22 is itself contradictory. If he had visited the house of accused Bhateri in the village one day prior to her arrest and that she was wanted in case FIR No. 125/02 of PS Rajouri Garden, then she could have been arrested at that time also and it was not required to wait for another day for her arrest. Even otherwise, if accused Bhateri was available in her house, then she could have been called at PS by giving notice or could be arrested then and there being a proclaimed offender.
There was no need to fabricate a story that she was arrested on the pointing of secret informer at Mukarba Chowk bus stand. Different contradictory suggestions have been given to PW22 ASI Dipender Singh in his cross examination and PW24 Lady Constable Sudesh in her cross examination. It is not suggested to PW24 in her cross examination that accused Bhateri was lifted from her house and was arrested. DW1 Mukesh has not given any SC No. 135/1 14/15 complaint before any authority that her wife was taken by the police illegally or unauthorizedly. So, DW1 is not helpful in any manner regarding the arrest of accused Bhateri.
In view of above discussion, prosecution has also not been able to prove offence U/s. 372/34 of IPC against accused Bhateri, for which, she is acquitted.
Announced in Open Court on
dated 18th of August, 2011 (Virender Kumar Goyal)
Additional Sessions Judge
Fast Track Court
Rohini : Delhi
SC No. 135/1 15/15
SC No. 135/1 16/15