Delhi District Court
State vs Pinku Gupta on 22 January, 2011
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST02) , DELHI.
SC NO. 371/1/10
State
Versus
Pinku Gupta,
S/o Late Sh. Om Prakash Gupta,
R/o H.No. 105. A Block, Gali No. 6,
Sai Enclave, Mohan Garden,
Uttam Nagar, Delhi.
(i)Case arising out of FIR No. 792/07
U/S: 363/366/376 IPC
P.S. Nangloi
(ii) Date of FIR 15.10.07
(iii) Date of Institution 19.05.09
(iv) Date of Final Arguments 19.01.11
(v) Judgment reserved on 19.01.11
(iv) Date of judgment 22.01.11
JUDGMENT
Present case has been assigned to the court of Sessions against the accused Pinku Gupta for offence punishable u/s 363/366/376 IPC vide S.C. No. 371/1/10 Page 1/13 FIR No. 792/2007 of Police Station Nagloi.
The charges against the accused Pinku Gupta are that on 22.9.2009 from B207, Dass Garden, Gali No. 8 Bapprolla Vihar, Nagloi, he kidnapped Kumari Chhaya a minor girl below the age of 18 years from the lawful guardianship of her parents and criminally intimidated for the purpose of marriage against her will and knowing that she would be subjected to illicit sexual intercourse and forcibly sexually intercourse with her without her consent.
The prosecution story as deposed by PW2 Insp. Mahendra Singh is that Fir No. 792/2007 u/s 363 IPC was assigned to him which was recorded on the complaint of Smt. Bimla Devi W/o Ajay Singh regarding missing of her daughter Km. Chhaya. The search was made and on 18.10.2007 after getting an information that Km. Chhaya alongwith accused Pinku Gupta is available at Peera Gari bus stand. Insp. Mahender Singh alongwith Ct. Munni Devi and Ct. Rajesh reached there and overpowered the accused Pinku Gupta who was alongwith Kumari Chhaya. Accused Pinku Gupta was arrested vide arrest memo Ex.PW2/A and his personal search was taken vide memo Ex.PW2/B. Accused Pinku Gupta and prosecutrix Km. Chhaya got medically examined in Sanjay Gandhi Memorial Hospital and undergarments of the prosecutrix was seized vide Ex. P1A. . Blood sample and semen sample of the accused was taken and same was seized vide memo Ex. PW2/E. 19 photographs of the prosecutrix and accused was seized vide memo Ex. PW1/A, S.C. No. 371/1/10 Page 2/13 which are collectively exhibited as Ex. PW1/B1 to B19. On 13.12.2009 Ct. Rajesh has produced blood sample with sample seal of seal impression SGMH, which was seized vide memo Ex. PW2/G. Prosecutrix Chhaya was sent to Nari Niketan. Later on her custody was handed over to her parents. Prosecutrix Chhaya repeatedly stated that she is attained the age of 18 years, but there is no age proof section u/s 366/376 was also added in the challan. Certificate from the Primary School was obtained vide mark B/PW2. Statement of prosecutrix u/s 164 Cr.P.C was got recorded. After completion of investigation challan was filed.
Charge against accused Pinku Gupta was framed u/s 363/366/376 IPC. Accused pleaded not guilty and wanted to contest the case.
To prove the allegation against the accused PW1 Chhaya was examined, she has stated in her examination that "they fallen in love affairs, she apprised her parents about her love affair but her parent were intending to marry her to someone else of very aged person. She protested the proposal of her parents and also requested them to marry her with accused Pinku. She did not remember the exact date or month but it was two years back in 2007, she had gone with accused to Ashram near Lajpat Nagar and accused took room on rent. They married in Shiv Mandir and stayed in a room in Ashram for about five days like husband and wife. Her mother Bimla Devi had registered a case and when it came to their notice, they surrender to the police station Nagloi. They were produced in the court on the next day. She was medically S.C. No. 371/1/10 Page 3/13 examined in the hospital. At the time of marriage in the temple certain photographs were taken and same were produced before the police which was seized. Her statement before Magistrate was recorded u/s 164 Cr.P.C, wherein she stated the same version that she is living with accused as his wedded wife. She was examined on oath in the court and was declared hostile and she was cross examined by APP for State. In cross examination, it is denied that the accused has enticed her and shown her good dreams of life and that is why she accompanied him. She further denied that she had stated to the police that accused Pinku Gupta and she stayed at the residence of his relative in Ashram. She admit that she had stated to the police in her statement that because of fear of altercation between her mother and mother of accused Pinku Gupta, they have started living at the residence of sister of accused Pinku Gupta. She has stated to the police that on receipt of information of sickness of mother of Pinku Gupta, they went at Peera Gari bus stand awaiting bus and police apprehended them. She denied that her date of birth is 4.1.1993. she studied up to 4th class and in school record her date of birth is recorded as 4.1.1993. She do not know what is her correct date of birth. She denied that she is stating incorrectly about her actual date of birth as 4.1.1993 because she is living with the accused. She further denied that accused had enticed her and because of such enticement she went with him. She is residing with the accused who is her husband.
PW1 Chhaya also put for cross examination to Ld. Defence S.C. No. 371/1/10 Page 4/13 Counsel wherein she admitted that she out of her free will went with the accused and married him of her own free consent. She further admit that she is living with the accused happily being his wife and the female child in her lap is out of the said wedlock. The baby was born on 12.12.2008. accused look after her properly and also take care of her. Neither she nor her mother Bimla Devi has distinct relation since after her marriage.
PW3 Bimla Devi, in her statement admitted that she did not want to proceed against the accused since it was a mistake under innocence by the accused and her daughter. She had lodged a report in PS when her daughter had not returned back. In cross examination by Ld. APP she denied that on 15.10.2007 police had recorded her supplementary statement in which she had stated that her daughter Chhaya whenever she get the chance to meet accused Pinku Gupta, she used to met him. She further denied that she had searched her daughter and during search she came to know that since the day of missing of her daughter Pinku Gupta is also missing from that day and she had suspicious of him and she had tried to make enquiry from Ramrathi, mother of Pinku Gupta that she had also locked the house and she did not turn up. PW3 Bimla Devi further denied that she had stated to the police in her statement that she had confident that her daughter Chhaya was enticed away and taken by Pinku and deposing falsely to save the accused or that she had been won over by the accused.
PW3 Bimla Devi has also been put for cross examination on behalf S.C. No. 371/1/10 Page 5/13 of accused wherein she deposed, that she did not have birth certificate of her daughter from the Municipality. The date of birth of her daughter Chhaya was recorded in the school record on rough estimate. The age of her daughter at the time of her admission in the school might be recorded on the lower side whereas her age was of higher side. Her daughter Chhaya is about 21 years of age as on today.
Apart from above witnesses the prosecution also examined PW2 Insp. Mahendera Singh also is the Investigating Officer of the case and deposed about investigation carried in the present case as discussed in the initial para of the judgment and has also exhibited the documents prepared during the course of investigation.
PW4 HC Ashwani Kumar who being posted at P.S. Nagloi as Duty officer has proved the registration of FIR No. 792/2007 in the present case and the copy of same vide Ex. PW4/A. PW5 Dr. Brijesh Singh is Medical Officer and examined the accused Pinku vide MLC Ex. PW5/A. PW6 Chander Kailash is the Principal of MCD Primary School village Baprola and proved the date of birth as 4.1.1993 vide Ex.PW6/A. PW7 ASI Baljeet proved the entry made in register with respect to the deposit of sealed parcels vide Ex. PW7/A, PW7/B and PW7/C. PW8 Ct. Rajesh is the witness of arrest of accused Pinku Gupta. After completion of the prosecution evidence, statement of accused u/s 313 Cr.P.C was recorded. He has denied all the incriminating S.C. No. 371/1/10 Page 6/13 evidence led by the prosecution and deposed that he is innocent and have been falsely implicated in the present case. The prosecutrix Chhaya is legally wedded wife. They have solemnized the marriage and they are living together as husband and wife. A female child Chiku is also born out from said wedlock and she is likely to give birth to another child as she is pregnant. He has also tender the photocopy of the medical certificate to this effect.
I have heard submission of Ld. APP for State and Ld. Counsel for accused and also perused the material on record.
For the purpose of attracting the provision of section 366, the prosecution has to prove that the kidnapping or abduction of a woman with the requisite intend, the intend must be to compel her to marry any person against her will or to force or seduce her to illicit intercourse. The proof of such intention is vital for the purpose of section 366 IPC. In contrast, if a blind girl by misleading her, taken to a place which was not her destination and subjected to sexual intercourse, the ingredients of section 366 are satisfied. If the girls is below 18 years leave her house of her own, the accused would be guilty if he used some inducement or compulsion. The section 366 IPC is satisfied if the ultimate object to seduction of marriage is given by the accused.
Intention' is a matter of inference from the circumstances of the case and the subsequent conduct of the accused after the abduction has taken place. Ordinarily it is not possible for the prosecution to establish S.C. No. 371/1/10 Page 7/13 the 'intention' except by proving the conduct of the accused. Human nature being what it is, whenever one finds a young man abducting a girl of marriageable age, the first and natural presumption must be that he had abducted her with the intention of having sexual intercourse with her either forcibly or with her consent after seduction or after marrying her. If he has any intention other than that which is suggested by the natural circumstances of the case, the burden lies upon him under section 105, Indian Evidence Act to prove that intention. This view is also taken in Haidar Shah AIR 1930 Lah 52.
It has to be borne in mind that the approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity, courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to S.C. No. 371/1/10 Page 8/13 rejection of the case of prosecution when it is otherwise proved.
In order to constitute offence of 'abduction' a person must be carried off illegally by force or deception, that is 'to compel a person by force or deceitful means to induce to go from one place to another'. It is not necessary to show that after the first act of abduction or kidnapping of the girl there was another act of seduction of the girl to illicit intercourse where from the proximity of events the court is satisfied that the effect of the inducement which was the cause of abduction continued till the time of illicit intercourse. The section 366 requires : (1) Kidnapping or abducting any woman.
(2) Such kidnapping or abducting must be :
(a) with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will.
(b) in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse.
The second part of the section requires two things : (1) By criminal intimidation or abuse of authority or by compulsion inducing any woman to go from any place.
(2) Such going must be with intent that she may be, or with knowledge that it is likely that she will be forced or seduced S.C. No. 371/1/10 Page 9/13 to illicit intercourse, with some person.
Every act done "against the will" of a person is done "without her consent" but an act done "without the consent" or a person is not necessarily "against her will", which expression imports that the act is done in spite of the opposition of the person to the doing of it. The provision of section 90 are not to be applied to this section. The intent must be proved by evidence in each case. The consent on the part of a woman as a defence to an allegation of seduction requires voluntary participation, not only after the exercise of intelligence based on the knowledge, significance and moral quality of the act but after having freely exercised a choice between resistance and assent. Submission of her body under the influence of fear or terror is no consent.
Seduction is a comprehensive expression and does not exclude the possibility of deceitful means being used in order that seduction may be practiced with effect. The words 'illicit intercourse' means merely sexual intercourse between a man and a woman who are not husband and wife. It is not confined to sexual intercourse by a man with a married woman but includes such intercourse between two unmarried persons. If the intention to kidnap a girl in order to seduce her to illicit intercourse is present, the fact that the accused had illicit intercourse with the girl before she was kidnapped is wholly immaterial. Similar view has been observed in case titled as Prem Narain AIR 1929 All 82 (1929) 30 Cri LJ 218 (All).
S.C. No. 371/1/10 Page 10/13
During the deposition made by witnesses including the victim and her mother. Both the material witnesses i.e. PW1 Chhaya and PW3 Bimla Devi have turned hostile on the material points. The victim Chhaya is wife of the accused and living as legally wedded wife. One female child is already born out of said wedlock. The accused has also filed the medical document of victim Chhaya whereas she is again pregnant and expected to deliver a child. The PW3 Bimla Devi mother of the victim/prosecutrix has also stated that she did not want to proceed against the accused.
The credibility of a witness has to be decided by referring to his evidence and finding out how he has stood the test in crossexamination and what impression is created by his evidence taken in other context of the case and not by entering into the realm of conjecture and speculation.
The maxim " falsus in uno falsus in omnibus" has no application in India and the witness can not be branded as liar. Merely because some of the accused persons have been acquitted , though evidence against all of them, so far as direct testimony went was the same, does not lead as a necessary corollary that those who have been convicted must also be acquitted, it is always open to a Court to differentiate accused who has been acquitted from those who were convicted Gangadhar Behera vs State of Orissa (2002) 8 SCC 381:
When only eye witnesses made embellishment in his statement recorded under section 161 Cr.P.C while deposing in Court regarding the S.C. No. 371/1/10 Page 11/13 description of the clothes worn by the accused and her presence at the place of occurrence is doubtful, the accused cannot be convicted for the said offence.
In a criminal case, standard for proof beyond reasonable doubt of a reasonable man is to be adopted when the evidence adduced did not conclusively led to the guilt of the accused and only pointed needle of suspicion towards the accused and nothing more, he cannot be convicted of crime because suspicion is no substitute for proof in criminal trial. A person, has no doubt , a profound right not to be convicted for an offence which is not established by the evidential stand of proof beyond reasonable doubt. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. In such circumstances, the accused persons cannot be held guilty.
Under the fact and circumstances, it revealed that the prosecution failed to prove its case against the accused beyond all reasonable doubts. Testimony of prosecution witnesses is neither trustworthy nor inspired any confidence to brought home the guilt of the charge against the accused. The testimony of the star witness i.e. PW1 Chhaya Devi who is kith and kin of the accused and living in one family as wife and also having one kid out of said wedlock. The other star witness i.e. PW3 Bimla Devi did not wish to proceed against the accused Pinku Gupta. The other witnesses are the witnesses of investigation, carried on in this S.C. No. 371/1/10 Page 12/13 case and the doctors who proved the MLC. There is no other independent material witness in the present case, who brought the needle of guilt against the accused.
Therefore, keeping in view of aforesaid discussion facts and circumstances, accused namely Pinku Gupta S/o Late Sh. Om Prakash is hereby acquitted as the prosecution failed to prove its case against accused. His bail bonds and surety bonds cancelled. Surety of accused is also stands discharged. Document if, any detained on record be released after cancellation of endorsement thereupon. Case property if, any be disposed of in accordance with law. File be consigned to Record Room. ANNOUNCED IN THE OPEN COURT TODAY ON 22.01.2011 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST04) DELHI S.C. No. 371/1/10 Page 13/13