Delhi District Court
State vs . (1) Sonu on 16 April, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 16/2012
Unique Case ID: 02404R0057992012
State Vs. (1) Sonu
S/o Mukesh Prasad
R/o C125, K. No. 785, Gali No. 2,
Kushak 2, Swaroop Nagar, Delhi.
(Convicted)
(2) Diwakar
S/o Ram Babu
R/o 304, Sheru Colony,
Vill. Kushak No. 2 Delhi.
(Acquitted)
FIR No. : 112/2011
Under Section : 363/366/376/109 IPC
Police Station : Swaroop Nagar
Date of committal to Sessions Court : 02.03.2012
Date on which orders were reserved : 16.04.2012
Date on which judgment pronounced : 16.04.2012
JUDGMENT (ORAL)
Brief Facts:
As per the allegations on 21.07.2011 at about 7:30 AM the accused Sonu kidnapped the prosecutrix 'S', (name of the girl is withheld being the case under Section 376 IPC), minor aged about 14 State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 1 of 27 years, from the lawful guardianship of her parents from the road outside her house bearing No. 276, Khasra No. 784, Kushak No. 2, Village Kadipur, on the pretext of marriage and thereafter he took taken her to the office of coaccused Diwakar i.e. Room No. 204, RG Mall, Sector 9, Rohini, where the accused Sonu put sindoor on the forehead of the prosecutrix and the accused Diwakar took photographs. It is further alleged that thereafter the accused Sonu took the prosecutrix to Haridwar, Rishikesh and Dehradun and also committed rape upon her at Haridwar.
Case of prosecution in brief:
The case of the prosecution in brief is that on 22.7.2011 the complainant Manoj Pandey came to Police Station Jahangirpuri and made his statement to the police wherein he stated that on 21.7.2011 at about 7 AM his daughter 'S' aged 14 years had gone to her school i.e Govt. Girls Senior Secondary School, Kadipur, and did not return back thereafter. He also given the description of his daughter to the police and expressed his suspicion that somebody has taken away his daughter after alluring her. On the basis of this complaint, FIR under Section 363 IPC was registered an during investigations, on 25.7.2011, the prosecutrix 'S' was got recovered and her statement was recorded on the basis of which Section 366/376 IPC were added and the accused Sonu and Diwakar were State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 2 of 27 arrested. After completing the investigations, the charges sheet was filed in the court.
CHARGE:
Charges under Section 363/366/376 Indian Penal Code were settled against the accused Sonu. Further, charges under Section 366 read with Section 109 Indian Penal Code were settled against the accused Diwakar. Both the accused pleaded not guilty and claimed trial.
EVIDENCE:
In order to discharge the onus upon it, the prosecution has examined as many as thirteen witnesses.
Public Witnesses:
PW5 Jayender Singh Rana (Teacher, MC Primary School, Lal Bagh New I, Azadpur) has brought the summoned record pertaining to the prosecutrix 'S' who was admitted in the school on 23.08.2008. The witness has deposed that according to the school record, the date of birth of the prosecutrix 'S' is 03.12.1995 which is mentioned in the admission and withdrawal register at serial No. 1283 copy of which is Ex.PW5/A, the copy of admission form is Ex.PW5/B and the affidavit filed by the father of prosecutrix 'S' State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 3 of 27 namely Manoj at the time of admission is Ex.PW5/C. In his cross examination by Ld. Defence Counsel, the witness has deposed that at the time of admission no document regarding the date of birth in the form of date of birth certificate etc. was submitted in the school by the father of the child.
PW6 Manoj Pandey has deposed that he is residing on the given address for the last 1012 years along with his family comprising of his wife, three daughters, two sons and the prosecutrix 'S' is his second child. According to the witness, on 21.07.2011 his daughter 'S' aged about 1415 years was studying in class 8th in Government Girls Senior Secondary school, Kadipur had left the house at about 7 AM after which he had gone for his work but in the afternoon she did not return from school on which his wife called him in the afternoon and informed about the same. Witness has deposed that he tried to search for his daughter but could not find her and the other girls who were studying with her informed that she had not even reached the school. The witness has further deposed that he thought that she must have gone to the house of her friend so he waited for her till evening but she did not return and on next morning i.e on 22.07.2011, he lodged his complaint Ex.PW6/A on the basis of which the present FIR was registered after which he also handed over copy of the school mark sheet showing the date of birth of his daughter 'S'. The witness has further deposed that either on 24 State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 4 of 27 or 25.07.2011, exact date he does not recollect at night, he was telephonically informed to reach Police Station Swaroop Nagar informing that his daughter had been found on which he reached the police station at about 1010:30 PM and found his daughter 'S' who informed him that on 21.07.2011 she was going to school, on the way she met Sonu also residing in the same area in the neighbourhood and thereafter she went along with Sonu. According to the witness, his daughter further informed him that she first went to Rohini where Diwakar, another boy residing in the same area was working and thereafter she and Sonu got married and after that she was taken to Rishikesh and Dehradun by Sonu by train. The witness has further deposed that his daughter 'S' further informed him that there Sonu had done "jabardasti" with her. According to the witness his daughter 'S' also informed him that at Rishikesh they had met the "mama" of the accused Sonu who brought her back to Delhi and left her at Adarsh Nagar bus stand where a lady namely Kusma living in the colony brought her to the police station. Witness has deposed that his daughter had also informed that there was no proof of marriage because no photographs were taken by the professional photographer and only some photographs were taken by the mobile phone. According to the witness, she had further informed that she had not married in any temple or court and the said marriage was solemnized at the place where Diwakar was working. Witness has State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 5 of 27 identified the accused Sonu and Diwakar in the court.
In his cross examination by Ld. Defence Counsel, the witness has deposed his daughter 'S' was born at home. According to him he was married about 22 years ago in his native village at Bihar. He has deposed that his eldest daughter Moni is presently studying in class 10th, the prosecutrix 'S' is in class 8th and his daughter younger to the prosecutrix 'S' namely Pratibha has now gone in class 8th. He has admitted that the prosecutrix 'S' had failed in one class and has voluntarily added that perhaps she had flunked in class three. Witness has deposed that when his daughter 'S' was born, no information was given to the Anganwari to the registrar date of birth. He does not have any authentic date of birth of his daughter 'S' and had given the date of birth of 'S' in the school on the basis of approximation i.e. after roughly considering the age of his elder daughter. He has further deposed that his daughter 'S' was previously in the village where she was not registered in any school and has voluntarily added that when she came to Delhi it was then he got her registered in the school. The witness has further deposed that his daughter 'S' came to Delhi about 45 years back and voluntarily added that earlier to that she was residing with her grand parents. According to the witness, it is possible that the age of his daughter 'S' could be between 1617 years at the time of the incident. State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 6 of 27
The witness has further deposed that his daughter did not tell him anything about any misbehaviour by Sonu or by Diwakar or that they had harmed her in any manner. According to the witness, when his daughter told him that the accused Sonu had done "jabardasti" with her, he did not ask her what she meant by "jabardasti". Witness has admitted that apart from what he had stated in the court, his daughter did not tell him anything else. The witness has deposed that he had told to police that the mama of Sonu had met his daughter and Sonu at Rishikesh and brought her back to Adarsh Nagar where he had left her at bus stand. Witness was confronted with statement Ex.PW6/DX1 and Ex.PW6/DX2 wherein this fact is not mentioned. The witness has admitted that his daughter told him that mama of Sonu had brought her back so that she could be united with her family. Witness has deposed that he is not aware if his daughter was having an affair with Sonu. He has also stated that his daughter did not tell him that she was forcibly taken by Sonu or forcibly detained by Diwakar and has voluntarily added that rather she told him him that she had gone with them of her own being neighbours.
PW10 is the prosecutrix 'S'. She has deposed that she was residing at the given address along with her parents, brothers and sisters for the last 45 years and prior to that she was in her native village at District Muzaffarpur, Bihar with her grand parents (Dada State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 7 of 27 Dadi). According to the prosecutrix, on 21.7.2011 she was studying in class 8th in Government Senior Secondary School, Kadipur, Delhi36. On that day she had left her house for going to school at 7:30 AM and on the way the accused Sonu met her who was residing in the same gali and he told her "chalo ghoomne chalte hain". According to her, since she knew him (Sonu) previously, she went with him to the office of her cousin brother Diwakar who in relation is her father's nephew (Bhanja). She has further deposed that in the office of Diwakar, there was a small temple where photographs of god were kept in front of which Sonu put sindoor on her forehead while Diwakar took photographs. She further deposed that thereafter, they went to Haridwar then to Risikesh and then to Deharadun and at Deharadun, they met the Mama of Sonu who told her that her parents would be worried and she should go back home on which she was brought to Delhi on 25.7.2011 at about 9/9:30 PM was left at Adarsh Nagar bus stand where she met Lalit uncle and Kusma aunty who are her neighbours who brought her to the police station and from there her father was called and her statement was recorded by the police and thereafter, she was sent home with her father. According to the prosecutrix, on next day she was taken to the hospital where was medically examined and the doctor had also asked her if any sexual contact or physical assault have been made with her and she had told the doctor that nothing as such had happened. The witness has State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 8 of 27 further deposed that thereafter she was brought to the court and her statement was recorded by Ld. MM under Section 164 Cr.PC which statement is Ex.PW10/A. Addl. PP with due permission of the court put leading question to the witness wherein she admits that she had told the Ld. MM that the accused Sonu had forcibly married her against her wishes. According to the witness, she had also stated to the Ld. MM that on one occasion he has done jabardasti with her. When the statement of the prosecutrix under Section 164 Cr.PC was read over to her she voluntarily added that though she had told the Ld. MM that the accused Sonu had forcibly married her against her wishes and that on one occasion he has done jabardasti with her, but in reality the accused Sonu had not done any such jabardasti with her and she had made this wrong statement before Ld. MM because she was scared. Witness has denied that she has been won over by the accused persons particularly accused Diwakar who is related to her, and it is for this reason she have changed her statement.
In her cross examination by Ld. Defence Counsel, the witness has deposed that she is not aware about her correct date of birth and she is giving her age on the basis of what is mentioned on her school record and as told by her parents. Witness has denied that her date of birth i.e. 3.12.1995 mentioned in her school record is correct. Witness has admitted that her elder sister Moni is getting State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 9 of 27 married in June and has voluntarily added that she is now 19 years of age. According to the witness, she is 2 ½ to 3 years younger to Moni and Pratibha is 23 years younger to her. Witness has denied that she is just one year younger to her sister Moni or that Pratibha is just one year younger to her and due to this reason they both (Pratibha and her) are in 8th class and has voluntarily explained that she had skipped her papers. Witness has admitted that Sonu and Diwakar had never misbehaved with her. Witness has admitted that she had gone with Sonu voluntarily for site seeing and he had never used force on her. Witness has also admitted that Sonu had put sindoor on her forehead jokingly in playful manner and there was nothing serious about it. Witness has also admitted that she had never been harassed by the accused either before or after the incident. According to her, whatever she has stated in the court is correct. She has further deposed that Sonu was known to her previously and they were good friends and therefore she went with him.
Medical Evidence:
PW4 Dr. Meenu (SR Gynae, BJRM Hospital), has deposed that on 26.07.2011 she was posted at BJRM Hospital in the Gynae department as senior resident and on that day the prosecutrix 'S' aged 14 years was brought to the hospital by L/Ct. Nanda for medical examination with alleged history of eloped with Sonu and State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 10 of 27 she was medically examined at casualty vide MLC No. 29071/11 which is Ex.PW4/A and thereafter she was referred to gynae department for further medical examination. The witness has further deposed that on that day at about 2:30 PM, she medically examined the prosecutrix and gave observations at portions encircled X to X1 of Ex.PW4/A. According to the witness on local examination she had not found any external injury. She had taken all the relevant samples and handed over the same to L/Ct. Nanda in sealed condition with sample seal. The witness has not been cross examined on behalf of the accused despite opportunity and the entire evidence has gone uncontroverted.
PW7 Dr. Deepak Chugh has deposed that on 16.11.2011, he was posted at BJRM Hospital as CMO and on that day the patient Sonu, S/o Mukesh, aged 20 years was brought to Casualty by duty constable for medical examination. According to the witness, on examination patient was conscious, oriented and had vitals which was stable and found that there were no abnormal findings in either systemic or local examination. The witness has deposed that the MLC was prepared by Dr. Yogesh Tekwani, then JR casualty under his guidance which MLC is Ex.PW7/A. The witness has not been cross examined on behalf of the accused despite opportunity and the entire evidence has gone uncontroverted. State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 11 of 27
PW8 Dr. Neeraj Chaudhary has deposed that he was deputed by the medical superintendent of the BJRM hospital to depose on behalf of Dr. Subhash Singh, Dr. Jitender, Dr. Meet and Dr. Vinod Kumar. The witness has identified the handwriting and signatures of these doctors having seen them while writing and signing during the course of his official duties. The witness has further deposed that on 15.11.2011 one patient Sonu, age about 20 years, S/o Sh. Mukesh Parshad was brought to the casualty by Ct. Santosh for his medical examination as per MLC No. 34299 which is Ex.PW8/A and was examined by Dr. Subhash who referred the patient to Surgery SR where patient was seen by Surgery SR Dr. Yatender. According to the witness, as per his examination external genitalia with a normal limit and there is nothing to suggest that patient is not capable of doing sexual assault and seemed to be potent. The witness has identified the signatures of Dr. Subhash at various points mark A and signatures of Dr. Yatender at point B on MLC Ex.PW8/A which MLC was prepared under the supervision of Dr. Meet whose name is written at point C. The witness has further deposed that on 26.07.2011 the prosecutrix 'S' aged about 14 years female brought in casualty by L/Ct. Nandu for medical examination and was examined by Dr. Vinod Kumar who further referred the patient to Gyane department. The MLC is Ex.PW4/A bearing the signatures of Dr. Vinod Kumar State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 12 of 27 at point B. According to the witness on 06.10.2011 a patient Diwakar, aged about 19 years male, was brought in casualty by Ct. Sunil and was examined by Dr. Ajeet vide MLC Ex.PW8/B bearing the signatures of Dr. Ajeet at point A. PW9 Dr. Gopal has deposed that on 26.07.2011, he was posted at BJRM Hospital as CMO and on that day the prosecutrix 'S', aged about 14 years female was brought in casualty for her medical examination and was examined by Dr. Vinod Kumar who referred the patient to Gyane department vide MLC Ex.PW4/A which was made in his supervision and bears his name at point C. The witness has not been cross examined on behalf of the accused despite opportunity and the entire evidence has gone uncontroverted. Police Witnesses:
PW1 ASI Raj Bala has proved the registration of the FIR copy of which Ex.PW1/A and endorsement on rukka which is Ex.PW1/B. The witness has not been cross examined on behalf of the accused despite opportunity and the entire evidence has gone uncontroverted.
PW2 Ct. Sanjeev has deposed that he has deposited the exhibits of present case in the FSL CGO complex Lodhi Road and obtained receipt which he handed over to the MHC (M) on 26.12.2011, copy of which receipt is Ex.PW2/A. The witness has State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 13 of 27 not been cross examined on behalf of the accused despite opportunity and the entire evidence has gone uncontroverted.
PW3 HC Yashbir was working as MHC (M) and has proved the entries in register No. 19 dated 26.07.2011 vide entry No. 590 dated 26.07.2011 copy of which is EX PW 3/A, entry No. 684 dated 15.11.2011, copy of which is EX PW 3/B and entry in register No. 21 vide RC No. 117/21/11, copy of which is Ex.PW2/A. The witness has not been cross examined on behalf of the accused despite opportunity and the entire evidence has gone uncontroverted.
PW11 SI Devender has deposed that on 22.07.2011, he was posted at Police Station Swaroop Nagar and on that day Manoj Pandey had come to the police station and lodged a missing report of his daughter which report was lodged by HC Pawan Kumar and is Ex.PW6/A and on the basis of which an FIR was registered by ASI Raj Bala after which it was marked to him. The witness has deposed that thereafter he went to the house of the complainant and interrogated him and after making inquiries in the neighbourhood the complainant informed him that he had his suspicion on Sonu, residing in the neighbourhood as he was also missing. He thereafter made inquiries in the neighbourhood but could not find anything much. The witness has deposed that on 25.07.2011 at about 10:30 PM one lady by the name of Kusma came to the police station along with the prosecutrix. According to the witness, the said Kusma told State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 14 of 27 him that the girl had been found near Adarsh Nagar bus stand and she knew her as a neighbour and was aware that she was missing. The witness has further deposed that she also informed him that another neighbour Lalit was also with her at the bus stand when they saw the girl and it was Lalit who left them in the police station (aspect not disputed by the Ld. Defence counsels for both the accused persons). The witness has deposed that he immediately informed the father of the prosecutrix on telephone and after her father came to the police station, he interrogated the prosecutrix in the presence of her father and recorded her statement U/S 161 Cr. P.C. He also recorded the supplementary statement of complainant/ father of the prosecutrix and also of Kusma and relieved them after handing over the prosecutrix to her father. According to the witness, on 26.07.2011, he sent the prosecutrix to the BJRM Hospital along with L/Ct. Nandu and her parents for getting her medical examination conducted. Witness has further deposed that on her return to the police station, L/Ct. Nandu handed over to him MLC of the prosecutrix along with one sealed pullanda duly sealed with the seal of BJRM Hospital. He also prepared the seizure memo of the same vide Ex.PW11/A and thereafter deposited the exhibits in the malkhana and the prosecutrix was handed over to her parents. The witness has further deposed that on 27.07.2011, he moved an application before the Ld. MM for getting the statement of State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 15 of 27 prosecutrix recorded U/s 164 Cr. P.C. which application is Ex.PW11/B pursuant to which Ld. MM recorded the statement of the prosecutrix vide proceedings Ex.PW11/C and the statement of the prosecutrix is Ex.PW10/A. The witness has deposed that after the said proceedings, he moved an application before the Ld. MM for supply of the copies of the proceedings which is Ex.PW11/D and the girl was thereafter handed over to her parents. According to the witness, thereafter he tried to search to Sonu and Diwakar but could not trace them and he also informed his senior officers about the position and since the victim was a minor girl, the further investigations were handed over to the lady IO.
Ld. Addl. PP with permission of the court put leading question to the witness with regard to the recovery memo on which the witness has admitted that after the prosecutrix was produced in the police station by Kusma, he prepared her recovery memo vide Ex.PW11/E. In his cross examination by Ld. Defence Counsel, the witness has denied the suggestion that when he interrogated the prosecutrix she told him that nothing wrong had happened to her. Witness has voluntarily added that the prosecutrix stated that there was "jabardasti" with her but he did did not ask the prosecutrix what she was meant by "Jabardasti" becasue he took up the matter with his senior officers and the further investigations were handed over to a State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 16 of 27 lady investigating officer. The witness has admitted that in the MLC of the prosecutrix he noticed that she had told the doctor that there was no history of any physical relations. The witness has deposed that he also had made inquiries regarding the relationship of Diwakar with prosecutrix and came to know that he was a cousin brother in relation to the prosecutrix. The witness has denied the suggestion that he had falsely implicated the accused persons on the asking of the parents of the prosecutrix or that he recorded the statement of prosecutrix U/s 161 Cr.PC of his own.
PW12 Ct. Santosh Vashist has deposed that on 15.11.2011, he was posted at Police Station Swaroop Nagar and on that day he joined the investigations along with SI Vineeta Parshad and came to the court of Ld. Magistrate, where accused Sonu had surrendered. According to the witness after taking permission from the court, the accused was interrogated outside the court in which he had disclosed that the had taken the prosecutrix with him which disclosure is Ex.PW12/A and thereafter the accused was arrested vide memo Ex.PW12/B and his personal search was carried out vide memo Ex.PW12/C. According to the witness, one day police custody remand for accused Sonu was taken pursuant to which accused led the police to Rohini, Sector 9 at RG Mall, Room No. 236 where Diwakar used to work, where the said pointing out memo Ex.PW12/D was prepared. The witness has further deposed that State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 17 of 27 thereafter the accused was taken to BJRM hospital where his medical examination was got conducted and the MLC along with exhibits were handed over to SI Vineeta after which she prepared the seizure memo of the same vide memo Ex.PW12/E. In his cross examination by Ld. Defence Counsel, the witness has admitted that outside the court public persons and lawyers were also present but none of them were joined in the investigations. The witness has voluntarily added that he had seen SI Vineeta asking a few persons but they refused but he cannot tell the names and addresses of the persons who had refused to join the proceedings but the court staff was not asked to join the proceedings. Witness has denied that accused Sonu did not made any disclosure statement and SI Vineeta had made at her own which he had signed on the asking of the IO.
PW13 SI Vineeta Prasad has deposed that on 06.10.2011 further investigations of the present case were handed over to her and on that day she called Diwakar to the police station and recored his statement Ex.PW13/A wherein he disclosed that the accused Sonu had brought the prosecutrix to his office on 21.07.2011 where Sonu had put sindoor on her forehead. Thereafter, she arrested the accused Diwakar vide memo Ex.PW13/B and thereafter his personal search was also conducted vide memo Ex.PW13/C and was taken to BJRM hospital for where his medical examination was State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 18 of 27 conducted. According to the witness, she thereafter tried to search the accused Sonu but could not locate him thereafter obtained NBW and on 14.11.2011 they received the information from the Naib Court of Illaka Magistrate that Sonu would be surrendering in the court, on which he along with Ct. Santosh and Ct. Bijender went to the court of Ld. MM where Sonu had surrendered. The witness has further deposed that he also moved a application before Ld. MM for interrogation of the accused, on which the Ld. MM permitted the same and after this he took the accused outside the court room and interrogated him on which he disclosed his involvement in the present case. She also recorded his disclosure statement which is Ex.PW12/A and thereafter the accused was arrested vide memo Ex.PW12/B and his personal search was carried out vide memo Ex.PW12/C. Thereafter, the PC remand for accused Sonu was taken for one day pursuant to which accused led them to Rohini Sector 9 at RG Mall, Room No. 236 where Diwakar used to work and the pointing out memo is Ex.PW12/D. According to the witness, the accused also disclosed that he had gone to various places at Haridwar, Rishikesh and Dehradun, which he was unable to identify. The witness has further deposed that she recorded the statements of the various witnesses including the father of the prosecutrix and also the neighbours of the prosecutrix namely Kusma and Lalit and the various police officers who were with her during the investigations. State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 19 of 27 The witness has deposed that on 26.12.2011, she sent the exhibits to the FSL through Ct. Sanjeev after which he prepared the charge sheet and filed the same in the court and he collected the FSL report. The biological report is Ex.PW13/D (running into three pages, not disputed by the accused and otherwise admissible U/s 293 Cr. P.C.) and the serological report is Ex.PW13/E (running into two pages, not disputed by the accused and otherwise admissible U/s 293 Cr. P.C.) He has identified the accused Sonu and Diwakar in the court.
In her cross examination by Ld. Defence Counsel, the witness has denied the suggestion that she had never personally interrogated the prosecutrix and that the prosecutrix had told her that during the time she was with the accused Sonu, nothing wrong had been done with her and has voluntarily added that she (prosecutrix) kept on telling her that the boy had taken her forcibly. According to the witness, she did not come to know during the investigations that the prosecutrix had an affair with the accused Sonu and had been writing letters to him. Witness has denied the suggestions that he deliberately did not inquire into this aspect. He further admits that she came to know from the school that the age of the prosecutrix was mentioned on the basis of the affidavit of the father and there was no authentic record of birth. Witness has deposed that she did not get the ossification / age determination test of prosecutrix get conducted. She has admitted that outside the court, public persons and lawyers State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 20 of 27 were also present but none of them were joined by her in the investigations nor the court staff was asked to join the proceedings. Witness has denied the suggestion that the accused Sonu and Diwakar did not made any disclosure statement and she recorded the disclosure of her own on the asking of the father of the prosecutrix. Witness has admitted that during the investigations she came to know that Diwakar was related to the prosecutrix being cousin brother. Witness has denied the suggestion that she had not conducted the investigations fairly and independently and was led by the father of the prosecutrix.
Statement of Accused After completing the prosecution evidence, statements of accused were recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material was put to them which they denied.
The accused Sonu has stated that he is innocent and has been falsely implicated. According to him the prosecutrix was in love with him and she used to write letters to him but he always told her not to do anything against her parents will. The accused Diwakar has stated that the allegations made against him are incorrect. According to him the prosecutrix is his cousin sister and she was having an affair with two boys in her school and he advised her to keep her State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 21 of 27 interest in studies and not in these activities as described above, due to this reason she had bad blood with him therefore she has deposed against him.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also considered the testimonies of various witnesses examined by the prosecution and my findings are as under:
Identity of the Accused:
After going through the evidence on record, firstly, it is evident that in so far as the identity of both the accused is concerned, it is duly established as they were known to the prosecutrix and her family prior to the incident. In fact, accused Diwakar is related to the family of the prosecutrix being her cousin brother. Even otherwise both the accused are correctly identified in the court by the complainant and the prosecutrix.
Secondly, in so far as the age of the prosecutrix is concerned, there is no dispute, since as per the school record duly proved by PW5 Jayender Singh Rana, the date of birth of the prosecutrix is mentioned as 03.12.1995 thereby showing that on the date of incident i.e. 21.7.2011 the prosecutrix was aged about 15 State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 22 of 27 years 07 months. It is further evident from the testimony Manoj Pandey (PW5) father of prosecutrix that the prosecutrix is his second child and the marriage of his eldest daughter who is 19 years of age has been fixed in June, 2012. The prosecutrix has a younger sister who is also studying in class 8th and at the time of the incident the prosecutrix was also the student of 8th class. The possibility of the prosecutrix being more than 16 years, cannot be ruled out, as there is no authentic record and the entries have been made on the basis of the affidavit given by her father who has in his crossexamination admitted that the age of his daughter at the time of incident may be 1617 years. In this background I hold that at the time of incident the prosecutrix was around 16 years of age or may be more but certainly not younger.
Thirdly, it is evident from the testimony of the prosecutrix and also from the medical evidence on record that there are no allegations of any physical assault upon the prosecutrix who has specifically told the doctor that there was no history of physical relations between her and the accused and she also specifically testified in the court that the accused did not make any physical relations with her during the period she stayed with him.
Fourthly, it is evident from the statement of prosecutrix under Section 164 Cr.PC recorded by the Ld. MM that she at the time of recording of her statement alleged that accused had done State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 23 of 27 jabardasti with her on one occasion but in the court she has clarified that at the time when she was produced before the Ld. MM, she got scared and therefore she made this statement and in her testimony before the court she has specifically stated that the accused did not make any physical relation with her which found due corroboration from the history which she had given to the doctor in her MLC Ex.PW4/A and when questioned by the doctor, she had specifically stated that there was no history of any sexual physical assault upon her and even the doctor did not notice any injury on her body.
Fifthly, the only allegation against the accused is that he had taken the minor prosecutrix to Haridwar, Rishikesh and Dehradun after which she was brought back by his maternal uncle and was left her at Adarsh Nagar bus stand from where she was taken to the police station by her neighbours who noticed her and brought her to the Police Station when her family was informed.
Lastly, as per the allegations of the prosecution, during the period the prosecutrix stayed along with the accused he had put sindoor on her forehead in the office of coaccused Diwakar but in her crossexamination, the prosecutrix has admitted that this was done by the accused Sonu playfully and they were not serious about the same.
State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 24 of 27 FINAL CONCLUSION:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 25 of 27 Applying the above settled principles of law to the facts of present case, it is evident that the identity of both the accused Sonu and Diwakar stands established. It stands established that on the date of incident the prosecutrix was aged around 16 years. It stands established that there was no physical assault upon the prosecutrix as admitted by the prosecutrix herself which finds due corroboration from the history which she had given to the doctor in her MLC Ex.PW4/A. The aspect of marriage between the accused Sonu and the prosecutrix in the office of coaccused Diwakar does not stand established. However, it stands established that the accused Sonu had taken the prosecutrix to Haridwar, Rishikesh and Dehradun after which she was brought back by his maternal uncle.
In view of the aforesaid discussions, the accused Diwakar is hereby acquitted of the charges under Section 366 read with Section 109 Indian Penal Code. The accused Sonu is also hereby acquitted of the charges under Section 366/376 Indian Penal Code. However, since technically the prosecutrix was a minor at the time of incident being below the age of 18 years of age (i.e. around 16 years of age) and the accused Sonu had taken her out of the lawful guardianship of her parents without their permission, therefore the State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 26 of 27 accused Sonu is hereby held guilty of the offence under Section 363 Indian Penal Code and accordingly convicted.
Be listed for arguments on sentence at 2:00 PM.
Announced in the open court (Dr. KAMINI LAU) Dated: 16.04.2012 ASJ (NW)II: ROHINI State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 27 of 27 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 16/2012 Unique Case ID: 02404R0057992012 State Vs. Sonu S/o Mukesh Prasad R/o C125, K. No. 785, Gali No. 2, Kushak 2, Swaroop Nagar, Delhi. FIR No. : 112/2011 Under Section : 363/366/376/109 IPC Police Station : Swaroop Nagar Date of Judgment : 16.04.2012 Arguments heard on : 16.04.2012 Date of Sentence : 16.04.2012 APPEARANCE: Present: Additional Public Prosecutor for the State.
Convict Sonu in JC with Sh. Ajay Jain and Sh. Ravi Shankar Garg, Advocates.
ORDER ON SENTENCE:
Vide a detailed judgment of even date the accused Sonu has been held guilty for the offence under Section 363 Indian Penal State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 28 of 27 Code. However, he has been acquitted of the charges under Section 366/376 Indian Penal Code. Further, the accused Diwakar has been acquitted of the charges under Section 366 read with 109 Indian Penal Code.
As per the allegations on 21.07.2011 at about 7:30 AM the accused Sonu kidnapped the prosecutrix 'S', minor aged about 14 years, from the lawful guardianship of her parents from the road outside her house bearing No. 276, Khasra No. 784, Kushak No. 2, Village Kadipur, on the pretext of marriage and thereafter he taken her to the office of coaccused Diwakar i.e. Room No. 204, RG Mall, Sector 9, Rohini, where the accused Sonu put sindoor on the forehead of the prosecutrix and the accused Diwakar took photographs. It is further alleged that thereafter the accused Sonu had taken the prosecutrix to Haridwar, Rishikesh and Dehradun and also committed rape upon her at Haridwar. However, on the basis of the testimonies of various witnesses, particularly the prosecutrix 'S' (PW10), this court vide a detailed judgment has acquitted the accused Diwakar of the charges under Section 366 read with 109 Indian Penal Code. Further, the accused Sonu has also been acquitted of the charges under Section 366/376 Indian Penal Code. However, since technically the prosecutrix was a minor at the time of incident being below the age of 18 years of age (i.e. around 16 years of age) and the accused Sonu had taken her out of the lawful State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 29 of 27 guardianship of her parents without their permission, therefore the accused Sonu has been held guilty of the offence under Section 363 Indian Penal Code and accordingly convicted.
Heard arguments on the point of sentence. The convict Sonu a young boy of 21 years. He is 10th class pass and has also done diploma course in Electronics and Communication. He has a family comprising of aged parents and one younger sister. He is first time offender and has no criminal background and has already remained in judicial custody for a period of Five Months.
Ld. Counsel for the convict has vehemently argued that the a lenient view be taken against the convict Sonu keeping in view his young age and the fact that he is not a habitual criminal and any stern view would be prejudicial to the convict. The Ld. Addl. PP for the State on the other had has argued that keeping in view the nature of offence, a strict punishment may be awarded to the convict.
I have considered the rival contentions. The convict is a young boy of 21 years with no criminal background and any harsh view would ruin the future of the convict. This being the background, I hereby hold that the interest of justice would suffice if the convict Sonu is sentenced to Rigorous Imprisonment for the period already undergone i.e. Five months and fine to the tune of Rs.5,000/ for the offence under Section 363 Indian Penal Code. In default of payment State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 30 of 27 of fine the convict shall undergo Simple Imprisonment for a period of Fifteen Days.
Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial as per rules.
The convict has been informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached along with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 16.04.2012 ASJ (NW)II: ROHINI
State Vs. Sonu, FIR No. 112/2011, PS Swaroop Nagar Page 31 of 27