Delhi District Court
State vs Vinay Kumar on 4 May, 2012
IN THE COURT OF SH. NARINDER KUMAR ADDITIONAL SESSIONS JUDGE, (CENTRAL); DELHI S. C. No. 08/10 FIR No.105/2009 PS Nabi Karim U/s 363 & 376 IPC In the matter of: State Versus Vinay Kumar, S/o Sh. Budh Ram, R/o Qtr. No. 7B/32, DDA Flats, Arakasha Road, Nabi Karim, Delhi .......Accused person Date of Institution: 23.03.2010 Date of Judgment: 04.05.2012 J U D G M E N T
Vinay Kumar (accused) was sent up for trial by way of commitment of the case to the Hon'ble Court of Session, for offences under Sections 363 & 376 IPC on the basis of accusations levelled against him by the prosecutrix, a student of 6th standard and aged 12 years, that he kidnapped FIR No.105/09 1 her while she was going to enter her school, taken to a room of a hotel, subjected to rape there and then left near her house.
2. It is case of prosecution that in the year 2009, prosecutrix used to live with her family including sister, brother Mohd. Arif and parents in the area of Nabi Karim, Delhi. Prosecutrix was born on 15.08.1995.
Sh. Nazaqat Ali, father of the prosecutrix used to drop her and his sister at Nav Shakti Vidya Mandir, Arakasha Road, Nabi Karim, Delhi. On 26.11.2009 too the prosecutrix and her sister accompanied their father on his scooter at about 7.00 a.m. for their school. They were dropped by him at some distance from the school i.e. near the street, as there were big pot holes in the street. After having alighted from the scooter of father, the prosecutrix and her younger sister started proceeding towards school. Whereas sister of the prosecutrix entered the school, the prosecutrix was still outside, accused was found standing there. He caught hold of the prosecutrix by her hand and pulled her. Accused then FIR No.105/09 2 asked her to sit on his bike and also threatened with due consequences. At that time accused was having a blade with him which he showed her.
Accused then took the prosecutrix to Inderprastha Park on his bike, made her to sit there. He kept talking to the her. Ultimately, he dragged the prosecutrix by holding her hand and brought her of the park, made her sit on the bike, kept on driving the bike through streets in the near her school and ultimately took her to Hotel Orient Palace.
In a room of the hotel, accused is alleged to have attempted to commit rape on the porosecution. He then opened the door and brought the prosecutrix out of the hotel, drove his bike and left her near her house.
On the way, when accused reached near Mikky Hotel, Mohd. Arif, brother of the prosecutrix and her parents saw him and the prosecutrix. Accused was caught hold of by her brother and father, and then taken to the police station.
Younger sister of the prosecutrix returned from the school, she informed her parents that the prosecutrix had not FIR No.105/09 3 attended the school. That is how parents of the prosecutrix and Mohd. Arif, brother of the prosecutrix had left in search of the prosecutrix. Parents of the prosecutrix when took prosecutrix to the police, she made statement levelling allegations against the accused. SI Ram Narain appended endorsement to the statement of prosecutrix and got this case registered.
SI Ram Narain got accused and the prosecutrix medicolegally examined. Dr. Ritu Bijarnia medically examined the prosecutrix. After medicolegal examination of the prosecutrix, Dr. Ritu Bijarnia handed over 18 exhibits to duty Constable, kept in a box sealed with the seal of the hospital, alongwith impression and the seal of the hospital.
On 26.11.2009 and 28.11.2009 accused was medicolegally examined. Exhibits handed over by the doctor were also seized by SI Ram Narain ASI Sushila who subsequently took over investigation and collected MLC of the prosecutrix and that of the accused. She also collected documents prepared by SI Ram FIR No.105/09 4 Narain. Arrested the accused and conducted his personal search. ASI Sushila also prepared rough site plan depicting the place of occurrence and depicting the place of your arrest.
Accused is also alleged to have led the police party headed by ASI Sushila to a street behind dispensary near Government Boys Primary School, Paharganj from where one motorcycle no.DL3SAF1578 make Freedom of green colour was seized near Eastern wall of the said school.
ASI Sushila moved application for recording of statement of prosecutrix U/s 164 Cr.P.C. by Metropolitan Magistrate, Ct. Nirmal Singh, collected three sealed parcels alongwith two sample seals from the MHC(M) vide RC NO. 48/21 on 31.12.2009 and deposited the same by FSL for analysis. On analysis of the contents of the exhibits the expert prepared reports.
After compliance with provisions of Section 207 CrPC, case came to be committed to the Hon'ble Court of Session. FIR No.105/09 5
Charge
3. Prima facie case having been made out, charge for an offence under Section 363, 376 and 506 Part I IPC was framed against the accused on 04.05.2010.
Since the accused pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.
Prosecution evidence
4. In order to prove its case, prosecution examined following witnesses: PW1 Nazma Praveen Prosecutrix PW2 Sh. Nazaqat Ali Father of prosecutrix PW3 Yasmin Mother of prosecutrix PW4 Dr. Ritu Bijarnia To prove MLC ExPW4/C of the prosecutrix prepared by this witness on 26.11.09 on her medicolegal examination at LHMC hospital PW5 Sister Lucy To prove record pertaining to date of birth of the prosecutrix as per school record.
PW6 Anil Kumar, To prove that prosecutrix and boy Manager of hotel Orient namely Viney kumar visited their Palace hotel on 26.11.09 and stayed there for few hours, telling that they had to board a train.
FIR No.105/09 6
PW7 Mohd. Arif Brother of prosecutrix
PW8 Ct. Hirdesh Singh To prove investigation part of the
prosecution story.
PW9 HC Khyali Ram To prove entries and record
pertaining to the case property
dealt with by him as MHCM.
PW9 Ct. Nirmal Singh who collected sealed parcels from
MHCM and deposited the same at
FSL Rohini.
PW10 Lady. Ct. Mukesh Who took the prosecutrix to hospital for medical examination.
PW11 ASI Sushila To prove investigation part of the
prosecution story
PW12 Sh. Deepak To prove recording of statement of
Dabas prosecutrix U/s 161 Cr.P.C
PW13 Dr. Neha To prove MLC ExPW13/A of the
accused prepared by Dr. Rajesh
Rathore and another MLC dated
28.11.09 Ex0PW13/B prepared by
Dr. Praveen Kumar Singh.
PW 14 SI Ram Narain Investigating Officer
Statement of accused
5. When examined under Section 313 Cr.P.C, the accused denied all the incriminating circumstances appearing in evidence against him and claimed false implication. However, the accused opted not to lead any evidence in defence.
FIR No.105/09 7
Plea put forth by the accused is as under: "There were pot holes in the street but I do not know as whether father of the prosecutrix dropped her on 26.11.09. However, on that day, I had seen the prosecutrix going to school, while passing through the said street, as I was passing through the same street.
The prosecutrix asked me that she wanted to roam with me. We had got acquainted to each other about one month prior thereto. Thereupon, I took the prosecutrix to I.P. Park, near Sarai Kale Khan, on my bike. We remained in the park for about 2 and a half hour. I did not extend any threat to the prosecutrix.
From I.P. Park, I took the prosecutrix to the area of Paharganj. She had desired that I should take her to a lonely place where no one else could see us.
I and the prosecutrix reached the said hotel with the assistance of a tourist. The tourist arranged a room in the said hotel, on payment made by me.
It is incorrect to suggest that any friend of mine handed over to me any key of room in the hotel. Actually, the above referred to tourist had given to me key of the room. I and the prosecutrix remained in the said room for about one and a half hour. No one had closed the door, from outside. All other allegations levelled against me are false. The prosecutrix had compelled me that I should have sexual relationship with her but even then I did not indulge in sexual relationship with her.
From the aforesaid room of the hotel, I and the prosecutrix reached near her school, I dropped her there. Then I left for my house.
It is false that I threatened the prosecutrix or that I was apprehended by her family members. Actually, when I reached my house, after having dropped the prosecutrix near her school, 5 minutes thereafter she called me on my mobile phone. I reached near Micky dhaba on my bike FIR No.105/09 8 where the prosecutrix was present. At the same time, two brothers and parents of the prosecutrix reached there and they apprehended me."
Discussion
6. Learned Addl. PP has referred to the statment of prosecutrix recorded as PW1 and the medical evidence available in statement of PW4 Dr. Ritu Sharma and submitted that prosecution has fully established that accused kidnapped the prosecutrix, a girl aged 12 years and a student of 6th standard on 26.11.2009 at about 7.45 am while she was going to her school in the area of Nabi karim.
It has further been submitted that from the statement of prosecutrix, it stands established that the accused, after having kidnapped her, took her to hotel Oriental Palace and there committed rape on her.
Further it has been submitted that since the accused extended threats to prosecutrix at the time she was kidnapped by pointing out a blade at her, third count of the charge under Section 506 (1) IPC also established against accused.
FIR No.105/09 9
On the other hand, Learned defence counsel has submitted that from the material available on record, it cannot be said that the accused took away or enticed away the prosecutrix and that rather it stands proved from the statement of prosecutrix and her conduct that it is she who herself accompanied the accused on 26.11.2009. Therefore, the contention is that prosecution has failed to establish that the accused kidnapped the prosecutrix or extended any threats to her at that time.
As regards charge under Section 376 IPC, learned defence counsel has also referred to the medical evidence and submitted that it cannot be said the prosecutrix was subjected to rape, as as such this charge too falls to the ground.
Occurrence is alleged to have taken place on 26.11.2009 at about 7.45 am after the prosecutrix was allegedly dropped near her school Nav Shakti Vidya Mandir Sr. Secondary School near Sangtrashan, Arakasha Road, Nabi Karim alongwith her younger sister Ms. Mariyam. Case came to be FIR No.105/09 10 registered on the statement of the prosecutrix on the night intervening 26/27.11.2009 after the prosecutrix is alleged to have been left by the accused near Mikky hotel and she accompanied her parents to police station Nabi Karim.
Statement made by the prosecutrix before the police is Ex PW1/A. During investigation she made statement Ex PW12/B (under Section 164 CrPC) on 27.11.2009. Prosecutrix has stepped into the witness box as PW1.
Was the prosecutrix earlier harassed?
7. In her statement made before the police (Ex PW1/A) the prosecutrix stated that the accused used to harass her for the last number of months and point out towards her, in presence of his own friends. As PW1, she stated that on previous occasion accused had followed and stared at her and she had complained her father but her father advised her to ignore it.
However, this explanation that she had complained to her father about previous conduct of the accused and her father had advised her to ignore this, does not find mention in her statement Ex PW1/A made before the police. There is FIR No.105/09 11 no explanation as to why this explanation was not given to the police while narrating version initially.
Even otherwise, a perusal of statement of PW2 Sh. Nazaqat Ali, father of the prosecutrix would reveal that he nowhere stated that his daughter had ever complained him about any such previous conduct of the accused. Had the accused, on any earlier occasion chased or stared at the prosecturix, her father must not have kept mum and rather he would have taken steps to take the accused to task. There is also nothing in prosecution evidence as to on which date time and place accused had earlier so chased or stared at her. In absence of any corroboration from the parents of the prosecutrix and details as to when it so happened earlier, it is difficult to believe the version that she was earlier so chased or stared at by the accused.
Ocular account regarding 26.11.2009
8. Learned Defence counsel has referred to material available on record and submitted that it is prosecutrix who herself accompanied the accused on 26.11.2009 and that FIR No.105/09 12 prosecution has failed to establish that the accused had taken away or enticed her away.
According to the prosecturix on 26.11.2009, her father took her and her younger sister, on his scooter at about 7 am and dropped both of them in a street at a distance from the school. According to prosecutrix, when they started taking steps towards school, her younger sister was ahead and as such she entered the school first, but she (Prosecutrix) was still outside the school when the accused caught hold of her by her hand, pulled her and covered her mouth with his hand and then made her to sit on his bike pointing a blade at her.
It is a matter common knowledge that when it is school time, many students start visiting school. It is not case of the prosecution that when PW2 Nazaqat Ali dropped his two daughter, these were the only girls going to enter the school. Had any such incident of kidnapping taken place, just outside the school, firstly the prosecutrix would have raised hue and cry and rushed towards school and then drawn attention of her, younger sister, other students, the teachers FIR No.105/09 13 and then the Principal. But the prosecutrix wants the Court to believe that even when many students were around, she was caught hold of by the accused threatened and forced to ride the pillion on his bike. It is difficult to believe her. She did not raise any alarm to attract others present nearby. No blade was recovered from the accused when apprehended by her parents.
In her statement Ex PW1/A made before the police, prosecutrix stated that accused had kept his hand at her mouth and then made her to sit on the bike. However, in her statement under Section 164CrPC ExPW1/B, she stated that the accused had tied a handkerchief on her mouth. This does not find mention in her statement made before the police and in her statement made in Court. In this way, the prosecutrix put forth contradictory version as to her condition when she was made to ride bike.
It appears that she introduced the story of handkerchief to explain as to why she could not raise hue and cry. But the fact remains that she did not state about this fact in her FIR No.105/09 14 statement before the police or in the statement made before the Court. She had ample opportunity to raise hue and cry and attract passersby while the accused was busy in driving the motorcycle. The prosecturix has not put forth any explanation while making statement in Court as to why she did not raise hue and cry when she had opportunity to do so while riding the motorcycle. In the given circumstances, this version, narrated by the prosecution, is not free from doubt.
Prosecutrix is taken to park
9. It is case of prosecution that from near the school, the accused took the prosecutrix to Indraprastha Park, made her to sit there, had gossips with her and then brought her back in the area, by the side of her school, while driving the motorcycle through streets, and had taken her to hotel Orient Palace.
While making statement in court, the prosecutrix deposed that the accused took her to Indraprastha Park, made her to sit in a chair, which was at some distance from the canteen, and kept on talking about his family and other FIR No.105/09 15 things.
When according to the prosecutrix, there was a canteen in the park and the accused made her to occupy a chair, at a short distance from the said canteen, the prosecutrix could raise hue and cry even at that time. However, there is nothing on record to suggest that she raised any hue and cry so as to attract any other person present in the park or the canteen holder.
As per version, narrated by the prosecutrix, in her statement Ex.PW1/A made before the police, in the park, the accused simply talked to her and brought her back at about 12.15 p.m. She did not attribute to the accused any other act while making statement to the police. However, while making statement in court, the prosecutrix stated that while talking to her, the accused had also touched her face. A perusal of statement U/s 164 Cr.P.C. made by the prosecutrix would reveal that therein she went on to state that the accused had even touched her private parts in the park. Therefore, the prosecutrix has made different statements FIR No.105/09 16 about the act attributed to the accused while they were in the park.
While making statement before the court, the prosecutrix improved upon another aspect of the accused having talked to his friend on mobile phone and informed him about his expected arrival at about 12.15 p.m. However, a perusal of statement Ex.PW1/A made before police would reveal that she did not state therein that the accused had talked on mobile phone to anyone else or apprised him of his expected arrival at about 12.15 p.m. It is significant to note that on return from the park, the accused is alleged to have driven his motorcycle through streets. Even, at that time, the prosecutrix could raise hue and cry or even jump from the motorcycle. However, she nowhere stated to have raised any hue and cry on their way from the park to the hotel. This conduct of the prosecutrix again creates doubt in the version put forth by her that it is the accused who kidnapped her.
FIR No.105/09 17
Presence of the accused and the prosecutrix in the room of hotel Orient Palace
10. It is case of the prosecutrix, as per statement Ex.PW1/A made before the police that after having brought from the park, the accused took her to room no.104 of hotel Orient Palace.
On the other hand while making statement in court, the prosecutrix has given the number of the room as 103 to which she was taken by the accused. Although before the police, she had named the hotel, while making statement in court, she displayed ignorance about its name while deposing in Court.
As PW1, prosecutrix stated about the presence of the friend of the accused in front of the hotel and further that the said friend had delivered to the accused keys of the room of the hotel. When this version is compared with the version available in Ex.PW1/A made before the police, it would transpire that she has improved upon the version. Before the police, she did not state about presence of any friend or that FIR No.105/09 18 key of the room was delivered to the accused by any such friend. It appears that she has introduced the story of delivery of the key of the room by his friend to avoid explanation as to why she did not raise any hue and cry or alarm at the time they went to the reception of the hotel for booking of the room.
PW6 Sh. Anil Kumar is Manager of hotel Orient Palace. According to this witness, on 26.11.09 at about 1.00/1.30 p.m., prosecutrix and a boy namely Vinay Kumar came to his hotel and submitted that they were to stay at the hotel for few hours, the reason being that they were to board a train. According to the witness, the period of stay being short, no entry was made in the register. In his cross examination, PW6 stated that room was allotted to the boy and the girl by him, but he left the hotel at about 1.30 p.m. leaving behind one sweeper cum waiter. It is in cross examination that the sweeper did not inform him about any quarrel between the girl and the boy. The sweeper did not apprise this witness of having heard any noise from the said room allotted to the boy FIR No.105/09 19 and the girl, although, the sweeper had met him on his return after lunch.
In view of the statement of PW6, it transpires that the prosecutrix was accompanying the accused on2 6.11.09 at about 1.00/1.30 p.m. and she did not inform Anil Kumar that she had been kidnapped. There is nothing on record to suggest that the prosecutrix raised any hue and cry even after PW6 left the hotel leaving behind sweeper. She had ample opportunity to tell Sh. Anil Kumar. Since she did not raise any hue and cry even in presence of PW6 Anil Kumar, Manager of the hotel, it cannot be said that it is the accused who had taken away or enticed the prosecutrix on that date.
Allegation of rape in the hotel
11. As noticed above, as per statement Ex.PW1/A made to the police, the prosecutrix stated to have been allotted room no.104, but in her statement made in court, she stated that it is room no.103 to which the accused took her. Therefore, the prosecutrix has made contradictory statement regarding number of the room to which she was alleged to have been FIR No.105/09 20 taken by the accused.
Further according to the prosecutrix, the accused bolted the room from inside and somebody put latch from outside. However, in her statement Ex.PW1/A made before the police, she did not state about this fact, i.e. that someone else present outside had put latch on the room.
As noticed above, there is no material to suggest that anyone else was accompanying the prosecutrix and the accused at the time they entered the hotel. Therefore, this court finds that prosecutrix has improved upon her version by stating about presence of a companion of the accused outside the room. There is also nothing in the statement of PW6 Anil Kumar, Manager of the hotel, that anyone was accompanying the prosecutrix and the accused at the time they came to him and got a room allotted. This improvement further creates doubt in the version of the prosecution.
It is significant to note that while making statement in court, prosecutrix levelled the allegations of commission of rape on her in the room of the hotel. But when we advert to FIR No.105/09 21 her to the statement Ex.PW1/A made before the police, it would transpire that therein she clearly stated that an attempt was made to commit sexual intercourse with her. This again goes to show that prosecutrix has made improvement in her statement made in court.
Learned defence counsel has rightly pointed out that in the medical evidence available in the form of MLC Ex.PW4/A Dr. Ritu clearly observed that hymen was intact. The doctor also observed that there was no mark of injury and bruises on the person of prosecutrix. The doctor specifically mentioned in the MLC that the prosecutrix was not giving any history of sexual intercourse. All this goes to show that no sexual activity was committed by the accused on the prosecutrix in the aforesaid room of the hotel.
Prosecutrix is brought back from the hotel
12. Case of the prosecutrix, as narrated to the police is that from the hotel, the accused brought her towards her house and that when they were moving on foot reached near Micky Hotel on Qutab Road, her parents and brother Arif were seen FIR No.105/09 22 coming. Thereupon, the accused started running away but her brother caught hold of him.
While making statement in court as PW2, the prosecutrix stated that the accused drove the motorcycle to leave her at her house. It is significant to note that the prosecutrix did not raise any hue and cry on way back from the hotel to her house. It is also significant to note that at the time of checking out of the hotel, she did not raise any hue and cry before the receptionist. This conduct on the part of the prosecutrix speaks volumes against her.
In her statement made in court, the prosecutrix made improvement on the another aspect also. According to her, on seeing her family members, accused pushed her off the bike and tried to run away, but he was caught hold of by her brother and father. As noticed above, while making statement before the police, the prosecutrix stated that they were moving on foot when her parents saw them and the accused started running away, but was apprehended. The prosecutrix has not explained anywhere as to where the FIR No.105/09 23 motorcycle was parked by the accused on their return from the hotel. It appears that in her statement made in court, the prosecutrix introduced the fact of having been pushed off the bike by the accused, to explain as to how the motorcycle came to be seized.
In order to attract provisions of Sec.363 IPC, it is for the prosecution to establish that it is the accused who took away or enticed away the prosecutrix. Where prosecution fails to prove that the accused took away or enticed away girl from the custody of the parents, it cannot be said to be a case of kidnapping.
As discussed above, prosecution has not been able to establish that it is the accused who took away or enticed away prosecutrix. Rather, it stands proved that the prosecutrix of her own accompanied the accused on the given date, time and place. Therefore, it cannot be said that the accused kidnapped the prosecutrix. In this view of matter, reference may be made to decision in S.Varadrajan's case AIR 1965 SC 942.
FIR No.105/09 24
In view of the above discussion, this Court comes to the conclusion that prosecution has also failed to prove that the accused subjected the prosecutrix to rape at hotel or that he criminally intimidated her at any point of time.
Conclusion
13. In view of the above discussion, this Court holds that prosecution has failed to bring home to the accused any of the charge framed against him. Consequently, Vinay Kumar (accused) is acquitted of the accusation levelled against him.
Case property be disposed of in accordance with rules on expiry of period for appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 04.05.2012 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
FIR No.105/09 25