Delhi District Court
Fir No. 204/08; State vs . Vijay @ Ram Kishan Page 1 Of 25 on 18 July, 2011
IN THE COURT OF SH. RAVINDER DUDEJA : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 10/10
FIR No. 204/08
P.S. Shalimar Bagh
U/S: 363/366/376 IPC
STATE
Versus
VIJAY @ RAM KISHAN
s/o Sh. Bhoj Raj
r/o village Ballipur,
PS B. B. Nagar,
Distt. Bulandsehar, UP
Date of Institution : 15/11/2008.
Date of Argument : 08/07/2011.
Date of Judgment : 18/07/2011.
J U D G M E N T
1. The Prosecution case is that on 23032008 Paras Ram, father of Prosecutrix "A" (name withheld) lodged a report that his daughter, then aged 13 years, had gone for FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 1 of 25 work to BQ Block on 16032008 but did not return back. A missing report was recorded vide DD no. 17A. On 08042008 Paras Ram again came at the PS and lodged FIR no. 363 IPC stating that he was suspecting that his daughter has been enticed away by Vijay @ Ram Kishan @ Lattoo s/o Bhoj Raj. During investigation, accused Vijay was arrested on the identification of Paras Ram and the Prosecutrix "A" was recovered from him. Her statement was recorded u/s 161 Cr. P. C. wherein she stated that accused Vijay had enticed her to the house of his nephew Manoj in TransYamuna area and from there, he took her to his village Ballipur, District Bulandsehar, UP where he forcibly made sexual intercourse with her. Accused and Prosecutrix were got medically examined from BJRM hospital. Her statement u/s 164 Cr. P. C. was also got recorded wherein she stated before Ld. Metropolitan Magistrate that she had gone with accused to his village where they performed marriage. They had also performed Court Marriage in the village and that she does not want to stay with her parent and wants to live with the accused. During investigation, exhibits were sent to FSL. FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 2 of 25 Pending the receipt of FSL result, chargesheet was filed against accused u/s 363/366/376 IPC. During pendency of the case, FSL result was filed in the court.
2. After compliance of section 207 Cr. P. C., case was committed to Sessions Court. Charge u/s 363/366/376 IPC was framed against accused to which he pleaded not guilty.
3. In order to prove its case, Prosecution examined 12 witnesses. PW1 is Woman Ct. Sunita Devi. She was with the Prosecutrix at the time of her medical examination at the hospital. She stated that after medical examination, doctor handed over sealed pullanda to the IO which was seized vide memo Ex. PW1/A. PW2 is Dr. Shakuntala Rani from BJRM hospital. She proved the MLC of Prosecutrix as Ex. PW2/A. She stated that on local examination, hymen was found ruptured.
PW3 is ASI Bhagwat Singh, Duty Officer. He had recorded the FIR Ex. PW3/B. PW4 is Paras Ram. He is the father of Prosecutrix. FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 3 of 25 He deposed that on 16032008 at about 8 am his daughter "A", then aged about 13 years, went for work of cleaning utensils in BQ Block, Shalimar Bagh but did not return back. Despite search, he could not trace her and therefore on 08042008 he lodged a complaint with police that he was having suspicion that Vijay had enticed away his daughter. He proved his statement Ex. PW4/A. He further deposed that he and his wife accompanied the police to village Ballipur, PS B. B. Nagar, Bulandsehar, UP from where his daughter was recovered from accused vide memo Ex. PW4/B. Accused was then arrested vide memo Ex. PW4/C and his personal search was conducted vide memo Ex. PW4/D. In reply to a leading question put up by Ld. APP, he admitted that 23032008, he had lodged a missing report at the Police Station.
PW5 is Premwati. She is the mother of Prosecutrix. She stated that she and her daughter left for work in the morning and that they worked upto 4 pm in different houses but thereafter her daughter "A" fled away by saying that she was doing work at some other house and thereafter did not FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 4 of 25 return. She further deposed that later she came to know that her daughter was enticed away by the accused residing in Rohini. She then made inquiry regarding her daughter from the accused. Initially, he refused to tell anything but thereafter told that her daughter is at his house. She along with her husband went to Bulandsehar, at the house of accused Vijay, from where her daughter was recovered. In reply to a leading question put up by Ld. APP, she admitted that when her daughter was not traceable for about one week, her husband lodged a report with the police. She admitted that on 08042008 her husband got a clue that accused had enticed away her daughter.
PW6 is Prosecutrix herself.
PW7 is Ct. Devender Kumar. He had accompanied ASI Dharambir and the parents of Prosecutrix to village Ballipur in District Bulandsehar, UP from where Prosecutrix was recovered from the house of accused. He stated that accused and Prosecutrix were brought to Delhi and were got medically examined from BJRM hospital and that after medical examination of accused Vijay, he received a sealed FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 5 of 25 pullanda and sample seal from the hospital and same were handed over to the IO who seized the same vide memo Ex. PW7/A. PW8 is ASI Dharambir Singh. He had recovered the Prosecutrix from the accused vide memo Ex. PW4/B and arrested the accused vide memo Ex. PW8/A and conducted his personal search vide memo Ex. PW4/D. He recorded statement of Prosecutrix and got the accused and Prosecutrix medically examined. He had seized the exhibits given by the doctor. He stated that he collected birth certificate Mark PX from village Churwari, Distt. Chattarpur, MP and as per birth certificate, her age was around 13 years. He had got the statement of Prosecutrix recorded u/s 164 Cr. P. C. and deposited the exhibits in FSL. Later, he collected the FSL result Ex. PW8/C and filed the same in court.
PW9 is Dr. Meet Kumar. He proved the MLC of accused as Ex. PW9/A.
PW10 is Nawab Khan. Head Master from Saskiya Kanya Prathmic Shala, Churwari, Distt. Chattarpur, MP. He produced the admission record of school. As per record, FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 6 of 25 Prosecutrix was admitted in first class in the school on 02072001 and her date of birth was 01031995. He proved the relevant entry of admission register as Ex. PW10/A. He stated that at the request of IO, then Head Master issued a certificate regarding the date of birth of Prosecutrix which is Ex. PW10/B. PW11 is Sh. Vijay Shankar, the then Metropolitan Magistrate. He had recorded the statement of Prosecutrix.
PW12 is HC Raghu Raj Singh, the MHCM. He proved the relevant entries of Register no. 19.
4. Statement of accused was recorded u/s 313 Cr. P. C. wherein he stated that Prosecutrix was major and that he married with her with her consent and desire. He further stated that parents of Prosecutrix were not allowing them to marry and therefore the Prosecutrix had asked him to accompany her to his native village and marry there before village Panch and Sarpanch and in the presence of his parents. He stated that because of police pressure, present case was registered and that Prosecutrix and her parents FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 7 of 25 gave statement under threat of the police.
5. In his defence, accused examined two defence witnesses. DW1 is Vichitra Kumar. He is the resident of native village of accused. He deposed that in the year 2008 at about 4 pm accused, his family members and a girl and her family members came at his house along with police. But police officials informed him that family of the girl had complained that Vijay had kidnapped/ enticed away their daughter. On being asked, the girl told that she had come voluntarily with accused. He asked the girl to go back with her parents but she refused stating that her real father had expired and her mother had married another person. She was saying that in case she accompanied her parents, her step father would sell her. On hearing this, police left his house. He further deposed that the village elders got the marriage of accused soleminized with that girl in the village temple and the said wedding was attended by him.
DW2 is Kashi. She deposed that she is the aunt of Prosecutrix and that her father is a drunkard and wanted to marry the Prosecutrix with a boy against her consent and that FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 8 of 25 she had told her that she wanted to marry accused Vijay. She further stated that her parents informed that Prosecutrix has voluntarily gone with accused and had married with him.
6. Arguments have been heard from the learned Additional PP Sh. Anil Kumar and learned defence counsel Sh. S.K. Sharma. I have carefully gone through the records of the case.
7. Prosecution has built up its case on the basis that prosecutrix was 14 years old at the time of incident. She was less than 18 years of age and therefore she was not in a position to give consent to the accused to take her away from the custody of her parents. Prosecution is relying on the school certificate of the prosecutrix in proof of her age.
8. The defence has argued that prosecutrix was major at the relevant time and there is no convincing oral or documentary evidence on the file to determine her date of birth. Statement of her father is vague. There is no basis for FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 9 of 25 the recording of date of birth in the school record and therefore the school record in proof of the age of prosecutrix is not reliable. It is stated that prosecutrix had voluntarily gone with the accused and therefore this is not a case of kidnapping.
9. In the case of offences of kidnapping and rape, the prime question for consideration always remains the age of the prosecutrix. The age is most relevant because the age of the prosecutrix is the vital factor to find out if she had the capacity to give consent to go with accused or to indulge in sexual act.
10. Admittedly, IO had not seized the birth certificate of the prosecutrix. PW10 Nawan Khan, Head Master of school from District Chhattarpur, M.P. produced the admission register of the school and as per the admission register, the date of birth of prosecutrix is 01.03.1995. In cross examination, he admitted that the date of birth is recorded at the time of admission as told by the parents. He stated that FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 10 of 25 he cannot tell as to what was the basis of recording the age in the school record in the case of prosecutrix as he was not posted in the school at the time of her admission.
11. PW Paras Ram, father of the prosecutrix simply stated that the age of his daughter at the time of incident was 13 years. He does not give her exact date of birth. Smt. Premwati, mother of the prosecutrix also does not give the date of birth of the prosecutrix. In cross examination, she admits that at the time when her daughter left the house, her age was 1718 years. She admitted that she had got recorded the age of her daughter less than what her actual age was. Thus, a doubt is created as regards to the age of the prosecutrix. While, the father states that the age of prosecutrix was 13 years, her mother states that her age was 17 to 18 years and that she had shown her age less in the school records. Thus, even the school record showing the date of birth of the prosecutrix as 01.03.1995 is also not reliable.
FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 11 of 25
12. The onus to prove that the age of the prosecutrix below 16 or 18 years, as the case may be, was on the prosecution but there is no clinching evidence to prove that prosecutrix was below 16 or 18 years. No ossification test was got conducted to ascertain her boneage. Thus, prosecution has failed to prove that prosecutrix was below 18 years at the time of incident.
13. The Division Bench of our own High Court has held in the case reported in AIR 1991 JCC 413 Mahabir Vs. State that the statement of the prosecutrix holds the key in the case of sexual assault. Besides the statement of prosecutrix, there is no other evidence of the involvement of the accused in the crime. Prosecutrix has deposed that she used to work as maid in kothis. On the day of incident, at about 4.00 pm while she was returning back to her jhuggi, accused met her and asked her to accompany him to the house of his relative residing near Yamuna. She accompanied him to the house of his relative. She further deposed that when she requested him to leave her back to her mother's house, he refused and FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 12 of 25 told her that he wanted to marry her and forcibly took her to his village where accused, his brother and sister in law threatened her and asked her to marry the accused. Under their threats, she married with accused in a village temple. She stated that accused gave her something in Prasad and after eating the same, she lost her memory and stopped identifying the people and when her father and mother came to the village to bring her back, she even did not identify them. She further deposed that she deposed that she was forcibly brought to Delhi by her parents and the police. Her statement was recorded by the police and she was got medically examined. She identified her signatures on the statement under Section 164 Cr. PC which has been proved as Exbt. PW6/A. She further stated that accused raped her in the village against her consent. In reply to leading questions put by the learned APP, she admitted that the accused had kept her at the house of his relative near Yamuna till 21.03.2008 and admitted that accused had told her in the village that they would live like husband and wife. In the cross examination by the defence, she admitted that FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 13 of 25 Paras Ram is her step father. She denied that she left the house at her own being fed up from her father. She stated that accused took her to the house of his relative near Yamuna on a two wheeler scooter and from there, to village on a motorcycle. She stated that it took about 1 - 1½ hours in reaching a house near Yamuna on two wheeler scooter. She stated that she did not complain anyone on the way to Yamuna and did not make any noise or alarm on seeing the public. She further stated that accused took her to the village from Yamuna during day time on a motorcycle and it took 2½
- 3 hours to reach the village and on the way, she did not raise any alarm or sought any help from passersby. According to her, police came twice at the village. She stated that they had got married after the police had met them for the first time. She stated that they got married 23 days after reaching the village and their wedding was attended by the people of the village including village women but she made no complaint to anyone in the village. According to her, she was not in her senses. She admitted that the marriage photographs were also taken. She identified the marriage FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 14 of 25 photographs shown to her by the defence counsel. She admitted that on coming to Delhi, she was sent to Nari Niketan and from there she was brought to the court for statement but stated that she was not fully conscious at the time when she gave statement before the court. She further stated that she cannot tell whether accused committed forcible sex with her as she was under intoxication. She admitted that accused had not committed any sexual assault on her before giving Prasad. She stated that she regained senses after 3045 minutes of taking Prasad. She admitted that accused did not commit any forcible sexual intercourse with her after she regained her senses. She stated that accused had given Prasad to her in the house prior to the marriage. She could not tell as to what was the Prasad. She stated that she did not tell the police or the Magistrate that she was given Prasad and admitted that she had told about the same for the first time in court.
14. In her statement under Section 164 Cr. PC, prosecutrix had stated that she had gone with the accused FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 15 of 25 with her own wish and had married him but she took a complete somersault in her testimony in court. Her testimony in court is materially different from her statement u/s 164 Cr. P. C. Prosecutrix does not deny that she gave statement Exbt. PW6/A before the learned MM. She does not say that the said statement was given under the influence of the accused. Prosecutrix was recovered on 12.04.2008 and was sent to Nari Niketan by the orders of the learned Duty MM. Her statement under Section 164 Cr. PC was recorded after three days i.e. On 15.04.2008 on being produced from Nari Niketan. Therefore, statement Exbt. PW6/A under Section 164 Cr. PC could not have been under the influence of the accused.
15. The learned APP has argued that the prosecutrix was given Prasad by accused at the village and after taking the same, she had lost her senses and in cross examination, she stated that she was not fully conscious at the time when she gave statement before the court and therefore the statement under Section 164 Cr. PC having been given by FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 16 of 25 the prosecutrix while not fully conscious, cannot be relied upon.
16. Prosecutrix has stated that she was taken to the village on 21.03.2008. In cross examination, she stated that she and accused got married 23 days after reaching the village and therefore the date of marriage should be 24.03.2008. She herself states in cross examination that she regained her senses after 3045 minutes of taking Prasad. Her statement under Section 164 Cr. PC was recorded much later i.e on 15.04.2008. It is unbelievable that prosecutrix was not fully conscious even after 21 days of taking Prasad. There is no medical examination of the prosecutrix to prove that she was given any intoxicating substance in Prasad by the accused. Moreover admittedly, prosecutrix did not tell the police or the Magistrate that she was given Prasad. She could not tell as to what was given in Prasad to her. Admittedly, she gave the story of giving her Prasad for the first time in court after more than two years, which could be an afterthought and not believable.
FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 17 of 25
17. No doubt, it is proved that in a rape case, conviction of the accused on the basis of testimony of the prosecutrix alone is permissible but that is in a case where the evidence of the prosecutrix inspires confidence and appears to be natural and truthful. In the case of Namdeo Daulata Dhayagude and others Vs. State of Maharashtra 1977 Crl. LJ 238, it has been held as under: "(A) Evidence Act (1872), S. 3- Appreciation of evidence - Contradictions in evidence of witness - Reliability of evidence.
Where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused."
Similarly, in the case of Ashok Kumar @ Bhura Vs. State of U.P., Crl. L.J. 2895, in a case under Section 376 IPC, the Hon'ble Court found variance of material FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 18 of 25 points between the FIR and the statement made during trial. There was no corroboration of the testimony of the prosecutrix. The eye witnesses denied the occurrence of sexual assault. It was held that conviction on the sole testimony of the prosecutrix was not proper.
18. The learned APP has taken the plea that accused had enticed away the prosecutrix. The word "entice" seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. In this case, prosecutrix has simply stated that accused had asked her to accompany him to the house of his relative who was residing near Yamuna and she accompanied her to the house of his relative. The element of inducement and allurement by giving rise to any hope is missing in the present case and therefore prosecution has failed to prove that accused had enticed away the prosecutrix.
19. Prosecutrix remained at the house of the relative of accused between 16.03.2008 to 21.03.2008. FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 19 of 25 She made no hue and cry and made no attempt to escape. According to her, she was forcibly taken to village by the accused on a motorcycle. On the way, she did not put up any struggle or raised any alarm to protect herself. She could have jumped from the motorcycle to save herself. Police met her twice in the village, first time the police met her before her marriage with accused. She could have reported the matter to the police. The fact that the police came to the village and still took no action, meant that she had voluntarily gone with the accused and had no complaint against him. Although, she states that she made no complaint to anyone in the village at the time of marriage as she was not in her senses but after she regained senses after 3045 minutes of taking Prasad, she could have complained to the Village Sarpanch or village women. She made no attempt to escape from the village and continued to reside with accused in the village till she was recovered by the police on 12.04.2008. Smt. Premwati (PW5), mother of the prosecutrix states that even after returning to Delhi, her FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 20 of 25 daughter insisted to accompany the accused and not them. Prosecutrix herself admitted that she was not sexually assaulted by the accused before giving of Prasad and after she regained senses. If her testimony is to be believed, she hardly remained unconscious for a period of 3040 minutes. Therefore, the allegation that accused had raped her against her consent appears to be doubtful. Her testimony does not inspire confidence.
20. In the case of Shyam and Anr Vs. State of Maharashtra 1995 Cri LJ 3974, the prosecutrix was a grownup girl, though she had not touched 18 years of age. She claimed during trial that she was kidnapped under threat. The evidence produced during trial showed that she was seen going on the bicycle of the accused. The Hon'ble Supreme Court noted that it was not unknown to her with whom she was going and therefore, it was expected of her then to jump down from the bicycle or put up the struggle and in any case raise an alarm to protect herself. As no such steps were taken by her, the FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 21 of 25 Hon'ble Court felt that she was a willing party to go with the appellants of her own and, therefore, there was no taking out of the guardianship. The appellants were acquitted of the charge under Section 366 of IPC.
21. Similarly, in the case of Mahabir Vs. State 55 (1994) DLT 428, the appellant and the prosecutrix were known to each other. The appellant took the prosecutrix to a place outside Delhi where they stayed for about fifteen days and had sexual intercourse with each other. The appellant was convicted under Sections 366 and 376 of I.P.C. The Hon'ble Court noticed that she had gone to Railway Station, had stood there with the appellant who also went to purchase tickets and then she had travelled with him in a compartment shared by other persons. She had then gone to a house in a tonga and yet she did not lodge any protest and made no attempt to flee despite having ample time and opportunity. The Court noted that on the day of reckoning, she surely had crossed mark of sixteen years and since she was all along a willing party, FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 22 of 25 the appellant was acquitted of both the charges against him. Thus, despite the prosecutrix being less than eighteen years of age, the appellant was acquitted not only of charge under Section 376 but also of the charge under Section 366 of IPC.
22. The facts of the present case are also similar to the facts of the abovecited judgments and therefore it shall be highly unsafe to convict the accused on the basis of uncorroborated testimony of the prosecutrix, which does not inspire confidence. In the case of State of Karnataka Vs. Sureshbabu Puk Raj Porral AIR 1994 SC 966), Hon'ble Supreme Court held as under: "When the age is in doubt, then the question of taking her away from lawful guardianship does not arise. However, the second requirement that taking or enticing away a minor out of the keeping of the lawful guardian is an essential ingredient of the offence of kidnapping. In the instant case, we are not concerned with enticement. But what we have to find out is whether the part played by the accused amounts to taking out of the keeping with the lawful guardian. From the evidence of PW7, it is clear that she was also anxious to go with the accused to see places. In such a case, it is difficult to hold that the accused had taken her away from the keeping of FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 23 of 25 her lawful guardian and something more has to be shown in a case of this nature like inducement."
23. From the evidence on record, I am of the opinion that prosecutrix herself was a consenting party who accompanied the accused to the house of his relative and then to his village and therefore it cannot be said that accused had taken her away from the protection of her lawful guardian within the meaning of Section 361 IPC. Reliance is also placed on S. Varadarajan Vs. State of Madras, reported in AIR 1965 SC 942.
24. Ingredients of offence under Section 366 IPC are also not attracted in this case in the absence of any evidence to show that accused had taken the prosecutrix with him by using force or inducement. The statement of prosecutrix rather shows that she willingly accompanied the accused to his village and stayed with him there.
25. Accordingly, I am of the view that prosecution FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 24 of 25 has failed to prove the charges under Section 363/366 & 376 IPC against the accused. Accused is acquitted. His bail bond is cancelled. Surety is discharged. Documents of his surety if any be released after cancellation of endorsement. File be consigned to Record Room.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE: NW03:ROHINI: DELHI. ANNOUNCED IN THE OPEN COURT ON 18072011.
FIR no. 204/08; State Vs. Vijay @ Ram Kishan Page 25 of 25