Delhi District Court
State vs . Ramnek Yadav, on 27 January, 2014
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 104/13.
Unique Case ID No. 02405R0058132012.
State Vs. Ramnek Yadav,
S/o Sh. Kodai Rai,
R/o Village, Madhopur Nankar,
P.O. Angaon, P.S. Katra,
Distt. Muzaffarpur,
Bihar.
Date of Institution : 15.3.2012.
FIR No.122 dated 10.9.2011.
U/s. 363 IPC.
P.S. Sector-23 Dwarka.
Date of reserving judgment/Order : 22.1.2014.
Date of pronouncement : 27.1.2014.
JUDGMENT
1. The accused had been chargesheeted by the police for having committed the offences punishable u/s.323/363/366/376 IPC.
2. According to the case of the prosecution, the prosecutrix namely 'G' (real name withheld in order to conceal her identity) had gone missing from her house on 22.8.2011. Her family members made intensive search for her but could not trace her. Ultimately, her mother appeared in the police station on 10.9.2011 and lodged a missing report. Her statement was SC No.104/13. Page 1 of 16 recorded by SI Sanjay Kumar, in which she stated that her younger daughter namely 'G' aged 13 years has been missing since 5 p.m. of 22.8.2011. She also stated that her another daughter Pooja had seen accused Ramnek Yadav taking away 'G' from their house.
3. On the basis of aforesaid statement of the mother of the prosecutrix, FIR was registered u/s.363 IPC. WT messages were flashed all over India and the missing information was uploaded on the Zipnet. Information was also conveyed to Missing Persons Cell, NCRB, Doordarshan, CBI etc. It is further the case of the prosecution that pursuant to a secret information, SI Sanjay Kumar alongwith staff reached village Madhopur, District Muzaffarpur, Bihar, on 17.12.2011 and recovered the kidnapped girl 'G' aged 13 years from the house of accused Ramnek Yadav. Accused was present in his house at that time and he was arrested. Both the accused as well as prosecutrix were brought to Delhi. Prosecutrix was got medically examined in DDU Hospital vide MLC No.25596/11. However, she refused to undergo gynaecological examination. Accused was also got medically examined in DDU Hospital and the sealed exhibits containing his blood sample, semen sample and underwear handed over by the doctor were seized. The prosecutrix was got counselled by the officials of Delhi Commission for Women. The statement u/s.164 Cr.PC of the prosecutrix was got recorded wherein she stated as under :
"We are two sisters and one brother. I am the youngest one. I had studied upto Class IVth in Govt. Girls School, Pochanpur. I had dropped while I was in SC No.104/13. Page 2 of 16 class IVth standard and since last 4/5 years, I am at my house. I am 13 years of age. However, I do not know my exact date of birth and my mother knows the same. We used to live in Salaria Apartment as my mother used to work as a maid servant there and on account of which we were living there in servant quarter. My mother also used to run tea stall at Metro Station Sector-19, Dwarka, and I also used to sit with my mother. Ramnek Yadav used to come there frequently. He used to ply Radio Taxi and used to come there. He struck a friendship with me since the month of July, 2011. However, I do not remember the date. Ramnek Yadav used to come and state that we should marry. However, my sister told my mother that I was talking to a boy and I was apprehensive that after knowing this, she would scold me and beat me. Ramnek Yadav told me that he would marry me and wanted me to go to his native place. On 22.8.2011 at about 5 p.m. I and Ramnek Yadav went to bus stand and he took me to his friend's place. I do not know where that place was. Thereafter we went to Bihar. He took me to his sister's place at Dudhia. We stayed there for one day. The family of his sister was also there. Thereafter on the next day, he took me to Darbhanga, Bihar. After reaching Darbhanga, he took a room on rent. He thereafter took me to the court at Darbhanga where certain documents were prepared. I do not remember as to what documents were prepared. Thereafter he told me that we are husband SC No.104/13. Page 3 of 16 and wife. Ramnek Yadav was very cruel towards me and used to beat me. He used to beat me brutally by slapping and also caught hold of my hairs. Once I tried to lodge a complaint at the police chowki but he caught hold of me and beat me. After merely two months of living at Darbhanga, he took me to Madhavpur where his mother and father were. We remained there for nearly two months. Thereafter police persons came to that place and took us to Delhi. Ramnek Yadav was cruel towards me and he used to beat me brutally."
4. Thereafter the prosecutrix was lodged in Children Home, Hari Nagar and section 366 IPC was added to the FIR. The prosecutrix was produced before the Child Welfare Committee on 20.12.2011 where she made a statement that she had sexually relations with Ramnek Yadav. Therefore, she was subjected to pregnancy test, the result of which was positive. The prosecutrix stated that she did not wish to continue her pregnancy. Accordingly, she was admitted in DDU Hospital on the same day i.e. 21.12.2011 and her pregnancy was got terminated. The sample fetal tissue preserved by the doctor in sealed condition was seized by the IO and the same was later on sent for DNA test alongwith other exhibits. Section 376 IPC was also added to the FIR. The documents regarding the age and date of birth of the prosecutrix were obtained by the IO from M.C. Primary Girls School, Pochanpur, Sector-23 Dwarka, New Delhi.
5. After completion of the investigation, Charge Sheet SC No.104/13. Page 4 of 16 was prepared and laid before the concerned Ld. Magistrate. Upon committal of the case to the court of Sessions, Charges u/s.363 IPC, u/s.366 IPC, u/s.376 IPC and u/s.323 IPC were framed against the accused on 04.5.2012. Since the accused abjured his guilt, prosecution was called upon to lead its evidence.
6. The prosecution has examined 15 witnesses to prove the charges against the accused. The accused was examined u/s. 313 Cr.PC on 07.11.2013, in which he denied all the incriminating facts and circumstances put to him. He, however, admitted that the prosecutrix was recovered by the police officials from his house in village Madhavpur on 17.12.2011 and he also was arrested on the same day from his house. He further stated that the prosecutrix was in love with him and wanted to marry him but her mother was not in favour of this marriage. Many persons in the neighbourhood had started talks with the mother of the prosecutrix regarding their marriage. He further stated that one day the prosecutrix came to his room and told him that she is 18 years old and wants to marry him and accordingly he took her to Darbhanga District, where he solemnized marriage according to the customary rites and then in the court also.
7. I have heard Ld. APP for State, Ld. Counsel for the accused and have perused the entire record.
8. According to the Ld. APP, the prosecution has succeeded in establishing all the charges against the accused. She submitted that even though there is a delay of 19 days in lodging the FIR yet that cannot be held fatal to the prosecution case as it SC No.104/13. Page 5 of 16 has come on record that during that period family members of the prosecutrix were looking for her and it is only when they were unable to trace her, they lodged the FIR. She further submits that the school records of the prosecutrix proved by PW6, the Principal of the concerned school, show her date of birth as 01.5.1999 which implies that she was only 11 years old when she was taken away by the accused. She submits that only the said date of birth of the prosecutrix mentioned in her school records has to be taken into consideration and the statement of any other witness in this regard has no value and cannot be considered. She further submitted that the prosecutrix has fully supported the case of the prosecution in her examination in chief but for some malafide reasons deposed against the prosecution case in her cross examination, which was conducted after a gap of 21 days. She submitted that in the cross examination, the prosecutrix has deposed that she gave false testimony in her examination in chief at the instructions of one advocate who met her outside the court on that day but did not mention the name and address of that advocate and why did she depose falsely at the instance of that advocate. She further submitted that even this part of the deposition of the prosecutrix is not believable as her mother appearing as PW4 categorically stated in her cross examination that she had not engaged any lawyer. She further submitted that the statement of the prosecutrix in her cross examination should be ignored as it prima facie, appears that by that time she was won over by the accused and therefore she deposed in favour of the accused.
9. Per Contra, Ld. Counsel for the accused submitted that SC No.104/13. Page 6 of 16 the prosecution has miserably failed to prove the charges against the accused beyond reasonable doubt. According to him, the delay of 19 days in lodging the FIR has remained unexplained and the same creates serious doubts in the prosecution case. He deposed that the mother of the prosecutrix (PW4) in her FIR as well as in her examination in chief has deposed that her another daughter Pooja had seen the accused taking away the prosecutrix but neither were no inquiries made by the IO from Pooja during the course of investigation nor has she been produced as a witness before this court. According to him, Pooja was a material witness for the prosecution and her non examination as a witness creates doubts in the credibility of the prosecution case. He further submitted that as per the statement of the mother of the prosecutrix in her cross examination, the age of the prosecutrix comes to around 19 years on the date of incident and said age of the prosecutrix deserves consideration for the reason that only mother of a child can tell about the exact age of the child. He further submitted that the cross examination of the prosecutrix, in which she has totally exonerated the accused, is very material and same cannot be ignored in toto. According to him, the accused is liable to be acquitted.
10. Let me take up the issue regarding the age of the prosecutrix first. The mother of the prosecutrix has, in the FIR, stated the age of the prosecutrix as 13 years. It is not in dispute that the prosecutrix had studied in MCD Primary School for Girls, Pochanpur, New Delhi. This was the first school attended by her. As per the deposition of PW6, she had taken admission in this school in IIIrd primary class on 31.8.2007 and at the time of her SC No.104/13. Page 7 of 16 admission, her father submitted an affidavit stating that her date of birth is 01.5.1999 and accordingly same was mentioned in the school records. PW6 proved the relevant entry in their admission register as Ex.PW6/A, the copy of the affidavit submitted by the father of the prosecutrix as Ex.PW6/B and the copy of the admission form filled up by the father of the prosecutrix as Ex.PW6/C.
11. Thus as per the aforesaid school record, the prosecutrix was only 11 years old on the date when she had accompanied the accused.
12. The Supreme Court in the case reported as Jarnail Singh vs. State of Haryana, 2013 IV AD (Cri) SC 546, has held that Rule 12 of Juvenile Justice (Care & Protection of Children) Rules, 2007 should be made the basis for determining the age of a minor victim also. The Sub Rule 3 of the aforesaid Rule provides that the age of the juvenile/victim shall be determined firstly on the basis of matriculation or equivalent certificate and if the same is not available, on the basis of date of birth certificate from the school (other than Play School) first attended and if that also is not available, the birth certificate issued by Corporation or a Municipal authority or a Panchayat and in the absence of all these certificates, medical opinion should be sought from a duly constituted Medical Board regarding the age of the juvenile or child. In the instant case, it is not in dispute that the MCD Primary School for Girls, Pochanpur, New Delhi, was the first attended school by the prosecutrix. She has not studied upto matriculation and therefore, there is no question of her being in possession of SC No.104/13. Page 8 of 16 matriculation certificate. Therefore, her date of birth recorded in the aforesaid school has to be considered for determining her age.
13. Moreover, the mother of the prosecutrix (PW4) has herself mentioned the age of the prosecutrix in FIR as 13 years. The prosecutrix in her statement u/s.164 Cr.PC Ex.PW8/B recorded on 19.12.2011 has mentioned her age as 13 years and in her testimony before this court recorded on 31.8.2012 (almost a year thereafter) has mentioned her age as 14 years. Ld. Counsel for the accused vehemently argued that from the statement of PW4 in her cross examination, it is manifest that the prosecutrix was born in the year 1992 and therefore, she was more than 18 years of age on the date of incident. PW4 has stated in her cross examination that she got married in the year 1988, her first child was born in the second year of marriage and the other two children were born after interval of one year each. Since the prosecutrix is her youngest child, it comes out from her aforesaid testimony that she was born in the year 1992. However, I feel not inclined to rely upon the aforesaid deposition of PW4. If she knew that the prosecutrix was born in year 1992 i.e. after four years of her marriage, why did she mention the age of the prosecutrix as 13 years in the FIR as well as in her examination in chief. She has also not explained why her husband mentioned the date of birth of the prosecutrix as 01.5.1999 at the time of her admission in the school. She has nowhere deposed that her husband had mentioned incorrect date of birth of the prosecutrix at the time of her admission in the school or that she has mentioned the age of the prosecutrix incorrectly in the FIR as well as in her examination in chief. There is nothing in her testimony to suggest that her SC No.104/13. Page 9 of 16 husband did not mention the date of birth of the prosecutrix correctly at the time of her admission in the school.
14. In view of the aforesaid factual position, I hold that the date of birth of the prosecutrix has to be taken as 01.5.99, meaning that she was only 12 years of age when she had accompanied the accused.
15. Prosecutrix appearing as PW3, has deposed that she left the studies after studying till 5th Primary Class and thereafter used to remain in the house with her mother. She sometimes used to go to the tea stall run by her mother at Metro Station Sector-9, Dwarka. Accused, who was a driver by profession, used to come to her mother's tea stall. She stated that one day at about 5 p.m. or 6 p.m. accused had come in his car and told her that he would drop her at her mother's shop but accused took her to somewhere else without her consent. First of all, accused took her to the house of his brother and kept her there for one night and thereafter he took her to the house of his sister at Muzaffarpur. From there, he took her to the house of his maternal aunt (Maami) in the same area of Muzaffarpur and then he took her to Darbhanga, Bihar. Accused used to keep her under the threat and also used to beat her. She further deposed that accused had got something written on papers on the pretext of marriage and committed rape with her, without her consent, during aforesaid period. Then accused took her to his house where he used to beat her and rape her. Accused kept her with him for one and a half months and police recovered her from the custody of the accused and was brought to Delhi on 19.12.2011. She was taken to DDU Hospital for medical SC No.104/13. Page 10 of 16 examination and was also produced before a Ld. Magistrate, who recorded her statement which she proved as Ex.PW3/A. She further stated that she had become pregnant from the loin of the accused and her pregnancy was later on got terminated with her consent.
16. It may be noted here that the aforesaid examination in chief of the prosecutrix was recorded on 31.8.2012. On that day, Ld. Counsel for the accused was not available and accordingly her cross examination was deferred. She was cross examined by the Defence Counsel on 21.9.2012. In the cross examination, she deposed that she knew the accused for the last one year as he used to visit her mother's shop. She admitted that she had friendship with the accused for two or three months and that she had asked the accused to marry her, for which accused had given his consent. She did not tell her parents or any relative about the said marriage proposal as she was under the fear that her mother would beat her. She admitted that her parents were not in favour of said marriage, she had gone with the accused for marriage. She reiterated that the accused had not taken her forcibly and she had gone with him on her own. She further deposed that first of all, they performed marriage in a temple and thereafter in the court. She admitted that she had told the Presiding Officer of the court that she was not under any threat and she performed the marriage with him with her consent. According to her, she has deposed in the court on the last date of hearing i.e. 31.8.2012 at the instructions of one advocate, who had met her outside the court. She also stated that prior to appearing before the Ld. Magistrate for her statement, she was briefed by the Investigating SC No.104/13. Page 11 of 16 Officer and she had made statement to the Ld. Magistrate in accordance with that brief. She admitted that she had refused to undergo medical examination as no force was used by the accused.
17. The prosecutrix was reexamined by Ld. APP and in her cross examination, she admitted that she did not tell police in her statement about any proposal of marriage and she had not told the police or Ld. Magistrate in her statement that she had gone alongwith accused on her own. However, she reiterated that her statement recorded on 21.9.2012 is correct. She further denied the suggestions put to her by the Ld. APP.
18. Before scrutinizing the aforesaid testimony of the prosecutrix, it may be noted here that she had stated in her statement u/s.161 Cr.PC dated 17.12.2011 also that the accused had got her signatures forcibly on some papers and declared that they are now married and thereafter accused had sexual relations with her repeatedly against her consent. The contents of her statement u/s.164 Cr.PC (Ex.PW8/B) have been already reproduced hereinabove.
19. The prosecutrix has consistently stated in her statement u/s.161 Cr.PC, u/s.164 Cr.PC and in the examination in chief recorded before this court that the accused had taken her signatures forcibly on certain documents and declared that they are now married. Therefore, her statement in the cross examination that she has performed marriage with the accused first in temple and thereafter in court, is not believable . It appears SC No.104/13. Page 12 of 16 that by the time the prosecutrix appeared before this court for cross examination, she had been influenced on behalf of the accused and for that reason she deposed in his favour regarding the factum of marriage. Even otherwise also, the accused has not lead any evidence to establish that he performed marriage with the prosecutrix in temple as well as in court. No marriage certificate issued either by the temple authority or by the court has been produced by the accused. Some documents were collected by the Investigating Officer during the course of investigation, hereby marked as Mark-A (colly) on the court file, which are only in the nature of application and affidavit filed on behalf of the prosecutrix before the Chief Judicial Magistrate, Darbhanga, stating that she has got married to the accused. The statement of the prosecutrix has not been recorded by the concerned CJM, Darbhanga. Probably these are those documents, deposed to by the prosecutrix in her statement, upon which the accused has taken her signatures forcibly. Hence I do not find any convincing evidence on record to show that the prosecutrix had solemnized marriage with the accused or that the said marriage, if any, had been performed with her will and consent.
20. The prosecutrix has deposed in her testimony that the accused had repeatedly raped her during the period she was in his custody in Muzaffarpur and Darbhanga. No suggestion has been given to her in this regard in her cross examination and there is nothing in her cross examination to show that she has deposed falsely in this regard. Even otherwise also, the sexual intercourse between the accused and the prosecutrix is manifest from the other evidence on record. It is not in dispute that the prosecutrix SC No.104/13. Page 13 of 16 was in a family way when she was recovered from the house of the accused and her pregnancy was later on got terminated in DDU Hospital on 23.12.2011 by Dr. Sarabjeet, which is mentioned in MLC Ex.PW12/B.
21. The prosecutrix has deposed that she had conceived from the loin of the accused, to which there is no opposition from the side of the accused.
22. Therefore, it gets established that the accused had been committing rape upon the prosecutrix repeatedly during the period she was under his custody. The contentions raised on behalf of the accused that the physical intercourse between him and the prosecutrix does not amount to rape as it took place after the two had solemnized marriage and hence the prosecutrix being his wife, is sans any merit. It has already been held in the foregoing portion of the judgment that there is no evidence on record to establish that there has been proper and legally valid marriage between the accused and the prosecutrix. Hence the physical intercourse between the accused and the prosecutrix amounts to rape in any event, even if it be taken that the prosecutrix had consented to the same, as the prosecutrix was less than 16 years of age at that time. The accused is thus liable to be convicted u/s.376 IPC.
23. The prosecutrix has further deposed that the accused used to beat her during the period when she was with him and therefore, the accused is liable to be convicted u/s.323 IPC also.
SC No.104/13. Page 14 of 1624. However, it has been the consistent statement of the prosecutrix right since she has been recovered from the custody of the accused that she accompanied the accused out of her own free will. She has nowhere stated or deposed that accused allured her or forced her to accompany him. Therefore the prosecution has failed to establish the necessary ingredients of the offence u/s. 363 IPC and the accused is liable to be acquitted of the said charge. For the said reason, the accused is also liable to be acquitted of the offence u/s.366 IPC.
25. It was argued by the Ld. Counsel for he accused that as per the FIR, the prosecutrix's sister Pooja had seen the accused taking her away and since no inquiry was made from Pooja by the Investigating Officer nor she has been produced as a witness before this court, it creates a doubt in the veracity of the prosecution case. The argument has been noted only to be rejected. Pooja is a witness only to the taking away of the prosecutrix by the accused. At the most, she could have deposed to this fact only. I have already held that the prosecutrix had accompanied the accused voluntarily and without any force or allurement. Therefore the evidence of Pooja would have been totally immaterial. Her non examination as a witness does not affect the prosecution case at all.
26. Apparently, there is a delay of about 19 days in lodging of the FIR. However, the prosecution case cannot be thrown out and accused acquitted merely on the basis of such delay, when the deposition of the prosecutrix has been found to be reliable and trustworthy so far as the offence of rape and physical SC No.104/13. Page 15 of 16 assault is concerned. Such delay at the most would give an impression that the prosecutrix's mother (PW4) was aware that the prosecutrix had gone alongwith the accused and nothing more. What happened with the prosecutrix when she was with the accused can be stated by the prosecutrix alone and she has narrated her ordeal in her statements during the course of investigation as well as in her deposition before this court.
27. With the result, accused is convicted of having committed offences u/s.376 IPC and u/s.323 IPC. He is, however, acquitted of the charges u/s.363 IPC and u/s.366 IPC.
Announced in open (VIRENDER BHAT)
Court on 27.1.2014. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.104/13. Page 16 of 16