Delhi District Court
Sc No. 159/10 State vs Kanchan Etc. Page No. 1/10 on 28 July, 2012
IN THE COURT OF ADDITIONAL SESSION JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET COURTS:
NEW DELHI
PRESIDED BY : SMT. MADHU JAIN
IN THE MATTER OF
ID Case No. 02406R0387402010
SESSIONS CASE NO. 159/10
FIR NO. 236/10
POLICE STATION PUL PRAHLADPUR
UNDER SECTION : 363/376/34 IPC
STATE
VERSUS
1. KANCHAN
S/O DEVIDEEN,
R/O J14, PREM NAGAR, LAL QUAN,
M.B.ROAD, NEW DELHI.
2. KRISHNA @ KANHAIYA
S/O RAM CHANDER,
R/O J14, PREM NAGAR, LAL QUAN,
M.B.ROAD, NEW DELHI.
DATE OF INSTITUTION : 29.11.2010
DATE OF RESERVING ORDER : 28.07.2012
DATE OF DECISION : 28.07.2012
J U D G M E N T
Case of Prosecution:
1. On 14.09.2010 complainant Smt. Sunita came to police station SC No. 159/10 State Vs Kanchan etc. Page No. 1/10 Pul Prahladpur and lodged a complaint regarding missing of her daughter namely 'X' (name withheld to keep her identity confidential). SI Mohinder Singh recorded the statement of complainant. On the same day, complainant produced her daughter/prosecutrix in the police station. W/SI Satish Bhati from police station Sangam Vihar recorded the statement under Section 161 of Cr.P.C. of prosecutrix. After recording the statement of prosecutrix, medical examination of prosecutrix was conducted at AIIMS hospital. Accused persons were arrested and their disclosure statement was recorded. Exhibits were sent to FSL, Rohini for examination. Statement of witnesses were recorded by the Investigating officer and after completion of investigation, charge sheet under Section 363/376/34 of IPC was filed against the accused persons in the court.
2. Since the offence under Section 376 IPC is exclusively triable by the Court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions.
Charge against the accused persons:
3. Prima facie case under section 363/34 IPC was made out against both the accused persons. Charge under Section 363/34 of IPC was framed upon both the accused persons to which they pleaded not guilty and claimed trial.
Prima facie case under section 376 of IPC was made out against the accused Kanchan. Charge under Section 376 of IPC was framed upon the accused Kanchan to which he pleaded not guilty and claimed trial. Witnesses Examined:
4. In support of its case, prosecution has examined 14 ( fourteen ) witnesses in all. The brief summary of the deposition of the prosecution SC No. 159/10 State Vs Kanchan etc. Page No. 2/10 witnesses is as under:
Material Witnesses:
5. PW2 is Smt. Sunita, mother of the prosecutrix. She stated that her daughter used to study at Government School at Railway colony, Tuglakabad. On 13th at about 7 pm (month and year she does not remember), when she came back to her house and found her daughter missing from the house. She inquired from the neighbours but they also told her that they have not seen the her daughter/prosecutrix coming from the school. The other day, she went to the police station and lodged a complaint regarding missing of her daughter. Thereafter, she went to the school of her daughter and met with the friend of her daughter namely Kajal who apprised her that Kajal is present at her home. PW2 stated that when she was heading towards the house of Kajal, her daughter Preeti along with the maternal grandmother (Naani) of Kajal met her on the way. Thereafter, she brought prosecutrix to the police station and police officials made inquiries and took her to AIIMS hospital for medical examination. She further proved her complaint Ex.PW2/A given to police. She stated that her daughter told her that when she was going towards her school, accused persons met her and took her forcibly in a TSR to Nehru Place and then to Uttam Nagar. Then, they took her to Kanjhawala where accused Kanchan asked coaccused Kanhaiya to bring Samosas and when Kanhaiya went to bring Samosas, accused Kanchan did wrong act with her.
6. PW3 is prosecutrix herself. She stated that she was studying in Class 9 in Rajkiya Kanya Uchtam Madhyamik Vidyalaya, Pul Prahladpur. She stated her date of birth as 03.05.1997. On 03.09.2010, she left for her school.
Both the accused persons Kanchan and Kanhaiya met her at Lal Quan near a SC No. 159/10 State Vs Kanchan etc. Page No. 3/10 sweet shop and asked her to accompany her to Kanjhawala. They took her in an auto to Nehru Place. Thereafter, she was taken to Uttam Nagar in a bus and then to a factory at Kanjhawala. Accused Kanchan asked coaccused Kanhaiya to bring Samosas and when Kanhaiya went to bring Samosas accused Kanchan did 'galat kaam' with her. She stated that due to fear of her mother she stayed at the house of her friend Kajal and the next morning when she was going back to her house with kajal's naani, her mother met her on the way. She has duly proved her statement given to Ld. Metropolitan Magistrate.
7. PW14 is SI Mahender Singh, Investigating officer of the present case. He conducted the whole investigation, arrested the accused, prepared the memos which have been duly proved by him on record.
Formal Witnesses:
8. PW1 is Smt. Savitri, neighbour of prosecutrix. She stated that she is maternal grandmother of kajal who is friend of prosecutrix as they both are studying in the same class. About 67 months back, prosecutrix came to her house at around 10.30/11 pm and stated that she is friend of Kajal. PW1 called her in and as it was too late she asked her to go home. But prosecutrix stated that she cannot go alone as it was late night. PW1 stated that prosecutrix stayed in her house in the night. The next morning, she accompanied prosecutrix to her house however, on the way prosecutrix mother met them and took prosecutrix with her.
9. PW4 is Ms. Manju Taneja, Teacher from Government Girls Senior Secondary School No.2, Tughlakabad, Railway colony, New Delhi who stated that she has brought the original admission register as well as the attendance register for the year 2010. Prosecutrix was admitted to their school SC No. 159/10 State Vs Kanchan etc. Page No. 4/10 on 03.04.2008 in class 6th and her date of birth is 03.05.1997. She also duly proved all the relevant entries.
10. PW5 is HC Raghu Raj Singh who registered the case FIR Ex.PW5/A and endorsed the rukka vide Ex.PW5/B.
11. PW6 is Ms. Colette Rashmi Kujur, Metropolitan Magistrate who recorded the statement of prosecutrix under Section 164 Cr.P.C Ex.PW3/A and proved on record the application for supply of copy Ex.PW6/B by Investigating officer.
12. PW7 is HC Girdhari Lal, MHC (M) who made entry of case property in Register no.19 of Malkhana.
13. PW9 is Sh. Nand Lal Yadav, father of prosecutrix who also deposed on the lines of PW2.
14. PW11 is W/HC Manju who was with the Investigating officer during the whole investigation. He along with W/SI Satish Bhati and Investigating officer Mahender Singh took the prosecutrix to AIIMS Hospital for her medical examination and handed over the sealed pullandas to the Investigating officer.
15. PW12 is Ct. Amit who joined the investigation with the Investigating officer. He has proved all the memos in this regard.
16. PW13 is W/SI Satish Bhati who reached at the spot. He along with L/Ct. Manju and Investigating officer took the prosecutrix to AIIMS Hospital for her medical examination and also examined both prosecutrix and her mother.
Medical witnesses:
17. PW8 is Dr. Shashank Pooniya who proved on record the medical SC No. 159/10 State Vs Kanchan etc. Page No. 5/10 examination of accused Kanchan Ex.PW8/A conducted by Dr. Manish Goyal.
18. PW10 is Dr. Saloni who conducted the medical examination of prosecutrix and prepared MLC Ex.PW10/A. Statement & Defence of accused persons:
19. Statement of accused persons under Section 313 Cr.P.C was recorded wherein they denied the case of prosecution and stated that they are innocent and have been falsely implicated in the present case. The accused persons further chose not to lead evidence in their defence. Arguments of Ld. APP for state:
20. Ld. APP for state argued that testimony of prosecutrix is sufficient to convict the accused . Both the accused persons intentionally took away the prosecutrix knowing fully that she is less than 16 years of age and prosecution has been fully able to prove its case against both the accused beyond reasonable doubt.
Arguments of Ld. Defence Counsel for accused:
21. On the other hand, Ld. Defence counsel for accused Kanchan argued that from the testimony of prosecutrix it is clear that no offence of rape has been committed by the accused Kanchan. He further argued that prosecutrix herself went with the accused and she told her age as more than 18 years to the accused. Counsel for accused Krishna argued that accused has no role to play in the entire case and he has been falsely implicated by the parents of the prosecutrix.
Conclusion:
22. The two issues to be determined on the basis of evidence adduced by prosecution are the age of the prosecutrix and whether she was consenting SC No. 159/10 State Vs Kanchan etc. Page No. 6/10 party to the incident or not.
23. Age of the prosecutrix: In the case in hand prosecutrix while being examined in the year 2011 has given her age as 13 years. She has stated that she is studying in 9th class in Rajkiya Kanya Uchtam Madhyamik Vidyalaya, Pul Prahladpur and she is the only child of her parents. She has stated her date of birth as 03.04.1997. No suggestion has been given to her that she is deposing falsely in this regard or that she was more than 18 years of age at the time of offence.
PW2 is the complainant of the case as well as mother of the prosecutrix. She stated that her daughter will complete 13 years in the coming month of May, 2011. Her statement has been recorded on 01.04.2011. Even no suggestion has been given to her that she is deposing falsely regarding the age of her daughter or her daughter was more than 18 years on the date of incident.
PW4 is Ms. Manju Taneja, Teacher from Govt. Girls Senior Secondary School No.2, Tuglakabad, Railway Colony, New Delhi. She stated that as per school record the date of birth of prosecutrix is 03.05.1997 . She has further proved the certified copy of admission form as Ex.PW4/A and certified copy of attendance register as Ex.PW4/B. Testimony of this witness has remained unchallenged and unshattered. From the testimony of this witness it stands proved that the date of birth of prosecutrix is 03.05.1997. Not only prosecutrix but her mother also had given the age of the prosecutrix as 13 years on the date of offence. The incident in the present case took place on 13.09.2010 and therefore, it stands proved beyond reasonable doubt that prosecutrix was less than 16 years on the date of offence.
24. Consent of the prosecutrix: As discussed above, age of the SC No. 159/10 State Vs Kanchan etc. Page No. 7/10 prosecutrix was around 13 years on the date of offence and therefore, so far as consent of prosecutrix is concerned same is immaterial as consent of minor is no consent in the eyes of law.
Now, coming to the fact as to whether accused persons committed rape upon the prosecutrix. Prosecutrix in the court on oath has stated that accused Krishna went to bring Samosas and thereafter accused Kanchan took off her clothes and committed wrong act with her. But she failed to explain as to what was the 'Galat Kaam' which was done by accused Kanchan with her. Subsequently, she stated that accused did not do anything with her and she put on her clothes and thereafter, became unconscious. In her statement under Section 164 Cr.P.C this witness has nowhere stated that accused Kanchan committed wrong act with her. She has stated that she was unconscious and did not know what happened to her. Thereafter, she regained consciousness and saw that she had her clothes on her. She has further stated that she had asked accused to take her back and drop her at home but he stated it is raining and they will leave at 6 pm. Thereafter, they reached Prem Nagar at around 10 pm but as it was late so she did not go home and accused Kanchan left her at her friends Kajal's place.
From the testimony of PW3 in the court as well as of her Statement under Section 164 Cr.P.C, it is clear that witness has failed to deposed clearly about the factum of rape in the court as well as to the Ld. Magistrate who recorded her statement under Section 164 Cr.P.C. As per the MLC of the prosecutrix proved on record as Ex.PW10/A the hymen was found to be ruptured but it was an old tear. The incident took place on 13.09.2010 and prosecutrix has been medically examined on 14.09.2010 and thus, immediately SC No. 159/10 State Vs Kanchan etc. Page No. 8/10 after the incident she has been medically examined and there is no delay in her medical examination. From her MLC Ex.PW10/A hymen was ruptered old . There can be so many reasons for the rupturing of the hymen. Doctor has nowhere opined that it was a fresh rupture, therefore, the MLC of the prosecutrix also does not support the factum of rape.
Except for the accused Kanchan and prosecutrix there was no other person present at the time of incident. So far as prosecutrix is concerned than the testimony regarding the factum of rape is neither straightforward and it also raises doubt or suspicion as to whether any incident of rape took place or not. Mother of the prosecutrix who has been examined as PW2 has stated that her daughter stated to her that accused Kanchan committed wrong act with her but PW2 was neither present at the spot nor she had seen the incident. She has deposed in the court whatever was told to her by her daughter. For the sake of repetition, it may be mentioned that prosecutrix herself has not stated very clearly anything about rape in the court as well as in her statement under Section 164 Cr.P.C. In such circumstances, so far as Section 376 of IPC is concerned, it cannot be said that prosecution has been able to prove its case under Section 376 of IPC beyond reasonable doubt against accused Kanchan.
Both the prosecutrix i.e. PW3 as well as her mother PW2 have stated that accused Krishna and Kanchan took away the prosecutrix. Counsels for both the accused persons stated that prosecutrix herself went with the accused persons. She was the consenting party to the whole incident. She was mature enough to cry for help if accused persons were taking her forcibly. She was taken from Prem Nagar to Kanjhawala and during the entire journey she did not raise any alarm or make any attempt to run away. No doubt from the SC No. 159/10 State Vs Kanchan etc. Page No. 9/10 evidence on record it is clear that prosecutrix did not cry for any help during her entire journey but the fact cannot be ignored by the court that prosecutrix is a minor girl aged around 13 years. Consent of minor is no consent in the eyes of law. Ignorance of law is not an excuse. Both the accused persons took away the prosecutrix i.e. a minor girl from the lawful guardianship of her parents. From the testimony of PW3 this fact stands proved that prosecutrix was taken away by both the accused persons. The plea of the accused persons that she was a consenting party does not hold good in view of the fact that prosecutrix was a minor and his consent is of no consequence.
25. In view of the above said discussion, prosecution has been fully able to prove its case under Section 363/34 of IPC against both the accused persons beyond the shadow of doubt. Therefore, both the accused persons are held guilty and convicted for the offence under Section 363/34 of IPC. Accused Kanchan, is however, acquitted of the offence under Section 376 of IPC.
ANNOUNCED IN THE OPEN COURT ON 28th July, 2012 ( MADHU JAIN ) DESIGNATED JUDGE TADA/POTA/MCOCA ASJ SE01/NEW DELHI/28.07.2012 SC No. 159/10 State Vs Kanchan etc. Page No. 10/10