Delhi District Court
State vs . Sajid on 30 September, 2013
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 53/12)
Unique ID case No. 02404R0191162012
State Vs. Sajid
FIR No. : 143/12
U/s : 363/376 IPC
P.S. : Prashant Vihar
State Vs. Sajid
S/o Sh. Sherdeen
R/o Shani Bazar Road, Vijay Vihar,
Delhi.
Permanent Address : Village Khurdi Nangal,
PS Chaprouli, District Bagpat,
UP.
Date of institution of case 06.07.2012
Date on which, judgment has been reserved 30.09.2013
Date of pronouncement of judgment : 30.09.2013
JUDGMENT:
1 The case of the prosecution is that on 09.04.2012 prosecutrix N (name of the prosecutrix is mentioned in the charge sheet and the charge, however the same has not been mentioned in the judgment to protect the identity of the victim child), aged about 17 years went to Farmer Society, Sector13, Rohini, Delhi, for work and from there she was kidnapped by the accused, who took her to a room situated at Prahladpur, Delhi, where he committed rape upon her and further threatened her of dire consequences in case she disclosed about the incident to anyone. The case was registered on the complaint made by father of S.C. No. 53/12 : State vs. Sajid : Page No. 1 of 28 2 prosecutrix N. The prosecutrix N was recovered on 13.04.2012 and the accused was also arrested on the same day. Both the prosecutrix N as well as accused were got medically examined and exhibits collected from them were sent to FSL. Statement of prosecutrix was got recorded u/s.164 CrPC. After completing investigation, charge sheet was prepared and filed in the court, through SHO concerned.
2 Upon committal of this case to the court of Sessions, charges for the offence under Sections 363/376/506 IPC were framed against the accused Sajid. However, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
3 In order to prove its case, prosecution has examined 15 witnesses. 4 The PW1, HC Fauzdar, was posted as Duty Officer at P.S. Prashant Vihar at the relevant time. He proved the computerized copy of FIR as Ex.PW1/A and endorsement made by him on rukka as Ex.PW1/B. 5 The PW2, HC Karan Singh, was posted as MHCM at P.S. Prashant Vihar at the relevant time. He produced Register No.19 and proved the relevant entries of deposit of samples and other articles at Malkhana and about sending them to FSL as Ex.PW2/A and Ex.PW2/B respectively.
6 The PW3, is the prosecutrix in the present case. Her testimony shall be discussed at length in the following paragraphs of the judgment. S.C. No. 53/12 : State vs. Sajid : Page No. 2 of 28 3 7 The PW4, Sh. Samir Sheikh, is the father of the prosecutrix. His statement was recorded on 21.11.2012 in part. The PW4 deposed that he had been residing at Delhi since about 5 / 6 years and was doing work of rickshaw puller and that he had left for work at about 5 /6 AM and returned back at about 4 /5 PM. He further deposed that his wife told him that his daughter i.e. prosecutrix used to meet one boy and that she had scolded her and that he had not seen prosecutrix talking to said boy himself. He further deposed that about seven months prior to the date he appeared to depose in the Court, prosecutrix went missing from the house and his wife (wife of PW4) told him that boy named Baniya had enticed her away and that he tried to search for prosecutrix and came to know that Baniya had taken her with him to some other part of Delhi. The PW4 then deposed that he connected a person from his village and also gave call to the police and thereafter he went to fetch prosecutrix along with the police. The PW4 stated that he had not filed any complaint regarding missing of the prosecutrix. At this stage, it was noticed that witness was having difficulty in responding to the questions put to him and on query it was revealed that the witness had difficulty in understanding Hindi language. Accordingly, directions were issued to SHO concerned to arrange for an interpreter conversant with Bengali language to record further statement of PW4.
8 The further statement of PW4 was recorded on 21.01.2013 with the help of interpreter Sh. Jinat Ali. The PW4 deposed that he had been residing in Delhi since last about 7 / 8 years and was doing work of rickshaw puller and that he used to go for his work at about 8.00 am and returned from his work to home at 7/8 home. He further deposed that he had five children i.e. two sons and three daughters including the prosecutrix and that about S.C. No. 53/12 : State vs. Sajid : Page No. 3 of 28 4 7/8 months ago, he went to the PS to file a complaint about missing of his daughter i.e. the prosecutrix, who had been missing 1/ 2 days prior to the said complaint. He further deposed that prosecutrix was aged about 17 years at that time and that he did not have any document of date of birth of the prosecutrix and that he did not have document of birth of any of his children and that the prosecutrix was his fourth born child and that his two sons and one daughter were elder than her. He then deposed that at the time of incident, prosecutrix was working in Farmer Society, Sector13, Rohini as a maid and that he came to know after about three days that his daughter was missing and that it was for the first time, that his daughter had not returned back to home from work and it had never happened so earlier. He further deposed that he had mentioned the description of his daughter and the clothes which she was wearing, in his complaint and that he knew that his daughter had some links with accused Sajid and so, he (PW4) mentioned his name (name of accused) in his complaint as person, who had taken away his daughter and that at that time, he was suspicious that accused had taken away his daughter, but later he (PW4) came to know that his daughter was also interested in accused and had gone with him voluntarily though she had not told PW4 about it prior to the incident. He then deposed that when his daughter went missing, his wife told him that she and prosecutrix had an altercation due to some household work, after which, prosecutrix gave a call to accused and told him to take her away and that accused Sajid had told this fact to his mother and that when his wife (wife of PW4) asked mother of Sajid, she told this fact to her. The PW4 proved his complaint to the police as Ex. PW4/A. 9 The PW4 further deposed that his daughter was traced out after about three days and that he was told about the whereabouts of his daughter, by his neighbour and he S.C. No. 53/12 : State vs. Sajid : Page No. 4 of 28 5 went to bring her along with the police and found prosecutrix and accused at that place and that police handed over possession of his daughter to him vide recovery memo Ex. PW4/B. The PW4 also proved the arrest and personal search memos of accused as Ex. PW4/C and Ex. PW4/D respectively.
10 The PW5 Dr. Brijesh, had examined the patient Sajid and then referred him to SR Surgery and Forensic Medicine expert for sexual / medical examination, sample collection, expert opinion and further management. He deposed that on examination, he found that no external injury was present on the patient. He proved the MLC of accused as Ex.PW5/A. 11 The PW5 also proved the opinion given by Dr. Faiz K.Shah on the MLC of accused, by identifying the handwriting and signatures of Dr. Faiz K.Shah thereupon and stated that as per observations given on the MLC Ex.PW5/A there was nothing suggested that the patient was unable to perform sexual intercourse. The PW5 further proved the noting given by Dr. Shubhendu on the MLC Ex.PW5/A by identifying the handwriting and signatures of Dr. Shubhendu thereupon.
12 The PW6, Dr. Pratibha Aggarwal, was deputed in place of Dr. Alka Chaudhary, who examined the prosecutrix and prepared her MLC. She proved the MLC of the prosecutrix as Ex.PW6/A, by identifying handwriting and signatures of Dr. Alka Chaudhary thereupon.
13 The PW7, Sh. Deepak Wason, learned MM, had conducted the proceedings S.C. No. 53/12 : State vs. Sajid : Page No. 5 of 28 6 u/s.164 CrPC and proved the said proceedings as Ex.PW7/A to Ex.PW7/D i.e. the application of the IO as Ex.PW7/A, statement of the prosecutrix as Ex.PW7/B, certificate given by him as Ex.PW7/C and application filed by IO for supply of copy of statement as Ex.PW7/D. 14 The PW8 Dr. Rajiv Ranjan, is the Chairperson of the Medical Board which had examined the prosecutrix for assessment of her medical age. He deposed that after radiological, orthopedic, forensic and dental examination of the prosecutrix, the Medical Board opined her estimated age to be more than 17 but less than 19 years as on the date examination i.e. 23.04.2012. He proved the said report as Ex.PW8/A. 15 The PW10, Ct. Ajay Malik, had joined the investigation of the case with the IO and deposed that on 11.05.2012, on the instructions of IO, he had taken the exhibits of the case to FSL Rohini vide RC No.54/21/12 and deposed regarding the same. 16 The PW12, Ct. Manoj, deposed that on 13.04.2012 duty officer handed over a tehrir and a copy of FIR to him with further directions to hand over the same to the IO and that he acted as per directions given to him.
17 The PW13, Ct. Dinesh, had joined investigations with IO during proceedings of the arrest of accused. He further deposed that he took the accused to BSA Hospital and got his medical examination conducted.
18 The PW14, SI Pradeep Kumar Singh, is the first investigating officer of the case S.C. No. 53/12 : State vs. Sajid : Page No. 6 of 28 7 and deposed that on 13.4.2012, father of the prosecutrix came to the police station and got his statement Ex.PW4/E recorded regarding missing of the prosecutrix and that he (PW14) made endorsement Ex.PW14/A thereupon and got the present case registered by handing over the rukka personally to the duty officer. The PW14 then deposed that the complainant Samir Shekh was facing difficulty in explaining the events in clear manner because of the language problem but he gathered the information from him and recorded his complaint Ex. PW4/A. The PW14 further deposed that he along with W/ASI Rajdevi, W Ct. Hiramani and Ct. Dinesh and the complainant Sameer Sheikh went to Farmer Society, Sector 13, Rohini, and after some time Ct. Manoj Kumar also reached there and handed over the copy of FIR and original endorsement to PW14 and that he (PW14) also recorded the statement of Ct. Manoj and that the further investigation of the case were handed over to W/ASI Rajdevi and that he had joined the investigation with her.
19 The PW14 further deposed that he along with the complainant and other police staff and the IO went to the house of Vicky, friend of accused Sajid, and that the prosecutrix was found at the house of said Vicky and that the victim was recovered vide memo Ex. PW4/B and that WASI Rajdevi, and W/Ct Hiramani took victim (prosecutrix) to the PS and that PW14 along with Ct. Dinesh and complainant remained at Prahladpur to search accused Sajid. The PW14 then deposed that on 13.04.2012 on the basis of the secret information accused Sajid was apprehended and IO was informed, who reached at the spot along with W/Ct. Hiramani, who arrested and personally searched the accused vide memos Ex.PW4/C and Ex.PW4/D respectively and that the accused also made disclosure statement. The PW14 further deposed that the accused Sajid was taken to BSA hospital and after his medical examination doctor handed over the exhibits to the IO, who took the S.C. No. 53/12 : State vs. Sajid : Page No. 7 of 28 8 same into possession vide memo Ex. PW14/B and that thereafter the accused was produced before the concerned MM in the court and was sent to JC and that they along with IO returned to the police station and that the victim was left at SOS Bawana and they thereafter returned to the police station.
20 The PW9, W/SI Nisha, deposed that on 28.05.2012 on the directions of SHO, she received investigations of the present case and that she gave a notice u/s.160 CrPC to Govind @ Vicky, tenant of Shakuntla, who was friend of accused Sajid, and that she recorded the statement of Govind @ Vicky, Shakuntla and prosecutrix and that she also prepared the charge sheet and filed the same in the Court.
21 The PW15, ASI Raj Devi, deposed that on 13.04.2012, she along with SI Pradeep, W/Ct. Heeramani and Ct. Dinesh went with complainant to Farmers Society, Sector13, Rohini, Delhi, and that Ct. Manoj also reached there and handed over copy of FIR and original rukka to SI Pradeep and that from the copy of FIR, she came to know that investigations of the case, after registration of the FIR, had been marked to her. She then deposed that at Farmers Society, Sameer Sheikh, father of the prosecutrix, informed them that the prosecutrix was at the house of Vicky, friend of accused Sajid, at Prahladpur Village and that she along with the police party and complainant Sameer Sheikh went to Prahladpur and that at house of Vicky, neither Vicky nor accused were found, however, prosecutrix was found at the house of Vicky, who was recovered vide memo Ex.PW4/B and that she along with W/Ct. Heeramani brought the prosecutrix to PS and that SI Pradeep and Ct. Dinesh were left at Prahladpur to search for the accused.
S.C. No. 53/12 : State vs. Sajid : Page No. 8 of 28 9 22 The PW15 further deposed that at PS, prosecutrix was got counseled through NGO Anuradha and thereafter prosecutrix was taken by her and W/Ct. Heeramani to BSA Hospital for her medical examination and that at hospital, prosecutrix was medically examined after which the concerned doctor handed over samples, taken from prosecutrix, sealed with the seal of BSA, along with the sample seal to her which were taken into possession by her vide seizure memo Ex.PW11/A. The PW15 then deposed that in the meantime, she received a call from SI Pradeep that he had found out about the whereabouts of the accused and that she left prosecutrix at PS and went with W/Ct. Heeramani to Village Prahladpur, and that on reaching there, accused was apprehended at the pointing out of complainant and that accused was arrested vide arrest memo Ex.PW4/C and that he was personally searched vide memo Ex.PW4/D and that she also recorded the disclosure statement of accused vide memo Ex.PW15/A and that thereafter accused was taken to BSA hospital for medical examination and that after his medical examination, the concerned doctor handed over samples seized from him as well as sample seal, to her which were seized vide memo Ex.PW14/B. The PW15 further deposed that thereafter accused was brought back to PS and that he was produced before learned MM and was sent to JC and that she also recorded statements of witnesses u/s.161 CrPC and that the prosecutrix was produced before concerned CWC from where she was sent to SOS Village, Bawana. 23 The PW15 further deposed that on 14.04.2012, she got statement of prosecutrix Ex.PW7/B recorded u/s.164 CrPC vide her application Ex.PW7/A and that thereafter she filed application Ex.PW15/B for supply of copy of the said statement and that on 17.04.2012, she also filed an application before learned MM seeking permission for ossification test of the prosecutrix and that the prosecutrix was examined by the medical S.C. No. 53/12 : State vs. Sajid : Page No. 9 of 28 10 board on 23.04.2012 and that the report of medical board was received at PS later on and was filed along with the charge sheet. She further deposed that on 28.04.2012, she handed over the file to MHCR as she was transferred from the PS. 24 During her crossexamination, PW15 deposed that she had inquired from the prosecutrix whether she had gone with the accused willingly or she had been taken away forcibly and that the prosecutrix told her that she had been taken forcibly by the accused and that she did not inquire from the neighbourhood, where the prosecutrix was residing, about the fact that prosecutrix was having an affair with accused since 2 / 3 years prior to the date she went missing or if she wanted to marry the accused. She volunteered to state that prosecutrix did not state any such thing to her. She denied the suggestion that parents of prosecutrix were not interested in registration of FIR or that the present case was registered at the instance of relatives of the prosecutrix.
25 The PW11, W/Ct. Hiramani, deposed that on 13.04.2012, she had joined investigations of the case with PSI Pradeep, W/ASI Raj Devi and Ct. Dinesh and that complainant Sameer Sheikh came to PS and lodged a complaint regarding missing of his daughter and that they went along with complainant to Sector13, Farmer Society, and thereafter they went to Prahaladpur to the house of Vicky, friend of accused Sajid and that the prosecutrix was found in the said house. The PW11 then deposed that the prosecutrix was brought to PS by her and IO W/ASI Raj Devi and that from there, the prosecutrix was taken to BSA Hospital for medical examination and that after medical examination of the prosecutrix, the concerned doctor handed over pullandas to IO W/ASI Raj Devi and that thereafter the prosecutrix as well as the samples given by the concerned doctor were brought to the PS S.C. No. 53/12 : State vs. Sajid : Page No. 10 of 28 11 where the said pullandas were taken into possession vide seizure memo Ex.PW11/A. She further deposed that in the meantime, PSI Pradeep gave a telephonic call that accused had been apprehended and accordingly, they left the prosecutrix at the PS and that PW11 went with IO to Prahaladpur where they met PSI Pradeep and Ct. Dinesh, who had accused in their custody, and that the accused was brought back to PS and that accused was sent for medical examination through Ct. Dinesh and that accused was brought back to PS and produced before the concerned Court and that the samples taken from the accused, by the concerned doctor at the hospital, were handed over to PSI Pradeep by Ct. Dinesh. 26 The PW16, ASI Rani Jassal, deposed that on 01.05.2012 she received investigations of the present case and that she got the exhibits of the case sent to FSL and that she also recorded statement of prosecutrix U/s 161 Cr.PC. She also deposed that she had recorded statement of Ct. Ajay and MHCM U/s 161 Cr.PC and that thereafter further investigation of the case transferred to WSI Nisha as an office order was received that investigations of rape cases were to be conducted by officer of the rank of SI. 27 After closing of prosecution evidence, statement of accused Sajid was recorded u/s 313 Cr.P.C., wherein he stated that he is innocent and had been falsely implicated in the case. He further deposed that his family as well as family of prosecutrix were aware of their love affair and were ready to solemnize their marriage, however, maternal uncle (mausa) of the prosecutrix wanted to marry her with his adopted son and that he was opposed to their marriage as the prosecutrix refused to marry the said boy. He further stated that the prosecutrix asked him to take her with him as she did not want to be married to said boy against her wishes and that the prosecutrix had been going around with him (accused) since S.C. No. 53/12 : State vs. Sajid : Page No. 11 of 28 12 the age of 15 and he had never forced himself upon her nor had he enticed her or induced her or kidnapped her or threatened her and that his signatures / thumb impression were obtained forcibly by the police on some blank papers and printed proformas and later on, those papers were converted into various memos against him and that he had not done anything wrong. The accused examined himself as DW1 and his friend Sh. Vicky @ Govind as DW2 in his defence.
28 The DW1, Sajid, deposed that he knew prosecutrix since four years prior to the incident and that he is a driver by profession and that about 3/4 years prior to the incident, he along with his family and prosecutrix and her family had gone to Ajmer Sharif and that thereafter there were good relations between the two families and that both families used to visit each others houses. He further stated that he and prosecutrix wanted to marry each other with the consent of their parents and that they both frequently visited Nizamuddin Dargah, and that one of the relatives of the prosecutrix, who was not interested in their marriage, intervened and advised her parents that since they belonged to Kolkata, and he (accused) belonged to UP, it would become very difficult later on to have cordial family relationship. He then deposed that on 11.04.2012, there was some quarrel between the prosecutrix and her parents, who were opposed to their marriage, thereafter prosecutrix gave a call to accused and told him to reach society, where she worked, sat on his bike and they both went to the house of his friend Govind, at Prehladpur, where they had chowmin together at the residence of Govind and thereafter they went to one room while Govind and his wife went to the other room and that they stayed there for the night. On 12.04.2012 in the morning, accused went for his job after giving Rs. 200/ to the prosecutrix to go her parental home, but she refused and that on the complaint made by the parents of prosecutrix, accused S.C. No. 53/12 : State vs. Sajid : Page No. 12 of 28 13 was apprehended from the house of Govind on 13.04.2012.
29 During his crossexamination by learned Additional PP, the accused stated that he knew the prosecutrix since four years prior to the date of his arrest and that at that time, she was 15 years of age. He admitted that at that time, he used to take the prosecutrix to Nizamuddin Dargah. He then stated that they reached at the house of his friend Govind at about 4.00 pm and that at that time, Govind and his wife Gulnaz were present at the home and that it was a rented house, where Govind was residing with his wife and that there were two rooms in the house and that his friend Govind was also a driver by profession and that Govind used to leave for his work at about 9.00 am and used to come back at about 8.00 or 9.00 pm. During the further crossexamination, the accused deposed that on that day, Govind came early from his work and that Govind was aware of his arrival with the prosecutrix and that the said rented house of Govind is situated at Village Prehladpur. The DW1 could not remember the month or year, when the prosecutrix had called him by making a call to him for taking her along with him. He denied the suggestions that prosecutrix never asked him to take her along with him or that the prosecutrix was kidnapped by him on the pretext of taking her for roaming etc. The accused admitted that at the house of Govind, he had physical relations with the prosecutrix as husband and wife, though, he had not married with the prosecutrix. Accused explained by stating that the prosecutrix was above 18 years at that time. He denied the suggestion that prosecutrix was minor at that time or that he had committed rape upon her without her consent or wishes. He admitted that he had introduced the prosecutrix to his friend Govind and his wife, as his wife and that the prosecutrix was recovered by the police from the house of Govind, who was also known by the name of Vicky. The accused denied the suggestion that he had threatened the prosecutrix not to disclose S.C. No. 53/12 : State vs. Sajid : Page No. 13 of 28 14 about her kidnapping to any one, even to Govind and his wife, otherwise she would have to face the dire consequences.
30 The DW2, Vicky @ Govind, deposed that he was a driver by profession and that accused Sajid was his friend and that he (Sajid) knew the prosecutrix since last 5 to 6 years and that the prosecutrix used to visit their house alone as well as with accused Sajid and that the prosecutrix also used to visit Nizamuddin Dargah with Sajid in the car driven by him (DW2) and that about one and a quarter year prior to the day (when statement of DW2 recorded), Sajid and prosecutrix visited his house and informed his wife that they had married with each other and that at that time, he was not at home and he returned back to his home after two days.
31 During his crossexamination by the learned Additional PP, DW2 stated that he had been driving cars since last about 5/6 years and that he was living as tenant at the rent of Rs.1800/ per month excluding water and electricity. He then stated that his younger brother was also residing with him as his parents had expired 7/8 years ago and that he had no sister and that he did not know the age of the prosecutrix or the accused and that he could not tell, how old the prosecutrix was at the time, when she first time came at his house with the accused and he could also not tell about her age, when the accused took her to his house and stayed there for about two days before police came at his house. He denied the suggestion that the prosecutrix was minor as on 11/04/2012. He then stated that the accused reached his house, with the prosecutrix, on that day between 5.00 to 7.00 pm and that at that time, he was not present at his house but after sometime, he returned back, when accused called him on his mobile phone and that he was present at his home for the next two days.
S.C. No. 53/12 : State vs. Sajid : Page No. 14 of 28 15 He then volunteered to state that he also used to go for his work in the in between period. The DW2 further stated that he and his wife were informed by the accused that he (accused) had married with the prosecutrix and that they lived in his house as husband and wife and that later on, when police came to his house, he came to know that the accused had not married with the prosecutrix. He admitted that since the accused Sajid was his childhood friend, he wanted to save him from the trial of the present case. 32 Arguments have been addressed by learned counsel for the accused as well as learned Additional PP for the State.
33 Learned Additional PP has contended that the prosecutrix has fully supported the case of the prosecution and that she has clearly deposed about the manner in which she was forcibly taken away by the accused and that she has also deposed about the manner in which accused committed rape upon her. It is further stated that the remaining prosecution witnesses have also corroborated the testimony of the prosecutrix and hence, the prosecution has succeeded in proving its case against the accused beyond reasonable doubt and has accordingly prayed that accused Sajid be convicted for offences u/s.363/376/506 IPC. 34 Learned counsel for accused on the other hand has contended that accused is innocent and has not committed any offence as prosecutrix and accused were having love affair. It is further contended that prosecutrix had herself accompanied the accused to house of his friend and stayed with him. He has relied upon judgments in case of State Vs. Sanjay Kumar & Anr., 2012 (4) JCC 2409 and Naresh Kumar Vs. State (Govt. of NCT), 2012 IV AD (CRI.) (DHC) 117, and has prayed that accused be acquitted of all charges in the present S.C. No. 53/12 : State vs. Sajid : Page No. 15 of 28 16 case and has prayed accordingly.
35 I have heard the arguments put forward by ld. Addl. PP and learned counsel for the accused and have carefully gone through the record of the case. I have also considered the evidence adduced by the prosecution in support of its case and my findings are as under: Age of the prosecutrix 36 In the present case no documentary evidence in the form of MCD birth certificate or the school certificate of the prosecutrix has been placed on record by the prosecution. However, the prosecution has examined PW8 Dr. Rajiv Ranjan, who is the Chairperson of the Medical Board which has examined the prosecutrix for assessment of her bone age. He proved the report of the medical board as Ex.PW8/A and stated that the members of medical board had conducted radiological, medical and dental examination of the prosecutrix and assessed her estimated age to be more than 17 years and less than 19 years as on the date of examination i.e. 23.04.2012. The report of medical board has not been disputed by the accused and the prosecution has thus succeeded in proving that prosecutrix was aged more than 17 years but less than 19 years as on the date of examination i.e. 23.04.2012 and since she was examined within fortnight of the incident, that the prosecutrix was more than 17 years but less than 19 years of age as on the date of commission of offence i.e. 09.04.2012.
Whether the prosecutrix was kidnapped and subsequently forcibly raped by the accused 37 The next question which arises for consideration is whether prosecutrix was S.C. No. 53/12 : State vs. Sajid : Page No. 16 of 28 17 kidnapped by the accused out of lawful keeping of her guardian i.e. her parents or if she had accompanied him voluntarily and if so whether consent of prosecutrix would have any consequence in the matter.
38 It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the Court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration of the same is required unless there are compelling reasons which necessitate the Court to seek corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime and her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the Court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. I am supported in my view by judgment in case titled as Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. & Anr., AIR 2003 SC 818 and Vishnu Vs. State of Maharashtra, AIR 2006 SC 508. Let us examine the statements / testimony of prosecutrix in the present case to see if it can be relied upon to draw conclusion of guilt of the accused. 39 The prosecutrix is alleged to have been taken away on 09.04.2012 by accused and was recovered on 13.04.2012. On the same day statement of prosecutrix was recorded S.C. No. 53/12 : State vs. Sajid : Page No. 17 of 28 18 u/s.161 CrPC wherein she deposed as under : "Mein (prosecutrix) r/o Dhuni Singh Ka Makaan, Vijay Vihar, Delhi, me apne mata - pita ke sath rehti hu aur Farmer Society Sector13 me maid servant ka kaam karti hu ; Dt. 09.04.2012 ko subah meri mummy se kaha suni ho gayi thi uske baad mein apne kaam Farmer Society Sector 13 me aagayi thi ; samay karib 4 / 5 baje din me apna kaam khatam karke society ke bahar nikali toh gate ke pas Sajid s/o Sher Dil joki hamare najdik Shani Bazar Road Vijay Viher me rehta hai, mila, jinko me pehle se hi janti hu woh mere se batchit karne laga wah mujhe ghumane le jane ke liye kehne laga, mein uski bato me aa gayi wah wo Sajid mujhe Prahaladpur Gaon ek kamre me le gaya jaha usne meri marji ke khilaf, mere sath sharirik sambandh banaye wah uss din se aaj tak mere sath zabardasti mere sath balatkar karta raha ; aaj apne mere ko Prahaladpur gaon ek kamre me le gaya jaha se Sajib ke dost ka tha baramad kar liya ; Sajid ne mere sath meri marji ke khilaf balatkar kiya hai ; uske khilaf kanuni karwahi ki jaye."
40 The statement of prosecutrix u/s.164 CrPC Ex.PW7/B was recorded on 16.04.2012, wherein she deposed that she was staying with her mother and father and working in Kothis at Sector13, and that one boy Sajid threatened her to come with him. On 09.04.2012, in the evening at about 4 - 5 PM, when she was returning to her home, Sajid came and threatened her and made her forcibly to sit on his bike and took her to a place, but S.C. No. 53/12 : State vs. Sajid : Page No. 18 of 28 19 she did not know the name of place and that he removed her clothes forcibly and committed rape upon her. She further deposed that she knew the meaning of rape and that he committed rape upon her twice and locked her in a room. She then deposed that Sajid had threatened her earlier also and that she told about it to her parents, who threatened Sajid. She prayed that action be taken against Sajid.
41 The supplementary statement of prosecutrix u/s.161 CrPC was recorded on 12.05.2012, wherein she deposed as under : "Mein (prosecutrix) apne pehle diye hue bayan ko sahi mante hue age bayan karti hua ki aaj apne mere se puchtach ki dinak 09.04.2012 ko Sajid mujhe behla fuslakar apne sath le gaya aur usne mujhe dhamki di ki agar yeh baat kisi ko batlai toh jaan se mar dunga ; Sajid mujhe Prahladpur Gaon me lekar gaya wah usne ek dost se milaya jiska naam Vicky @ Govind tha, jo Sajid ne Vicky aur uski patni ke samne bataya ki hum shadi karke aaye hai aur pati patni hai hum kiraye ke liye kamra dekh rahe hai, ek do din jab tak kamra nahi mil jata tab tak aap hame apne ghar me rakh lo ; maine Vicky wah uski gharwali ke samne yeh mehsoos nahi hone diya ki Sajid mujhe agwah karke laya hai kyonki Sajid ne mujhe marne ki dhamki de rakhi thi, jab do din ke baad Police aayi toh Vicky @ Govind ne kaha ki jab tum dono ne shadi kar li hai toh police hamare ghar par kyu aayi hai, tumne jarur koi galatkam kiya hoga ; Police ne bataya ki Sajid mujhe agwah karke laya hai ; Vicky ne Sajid ko bahut dhamkaya aur mujhe kaha ki agar iss tarah ki baat thi toh S.C. No. 53/12 : State vs. Sajid : Page No. 19 of 28 20 mujhe batana chahiye tha."
42 The prosecutrix appeared to depose before the Court as PW4 and her statement was recorded on 06.08.2013 wherein she deposed that, "I am staying with my father, mother, two sisters and two brothers. I am working as a maid in houses. On 9/4/12 I was returning back to my house after work at about 4pm. As I came out of the gate of the society, where I had gone for work, I met accused Sajjid, present in the court today (witness has correctly identified accused through the design in the wooden partition). Accused was on a bike. He took me on bike at Prahlad Pur to house of his friend, namely, Vicky. Accused forced himself on me. Accused told his friend that I am his wife and he also told his friend that we will stay there at his house. There were two rooms in that house. Accused took me to one of the rooms and committed rape upon me.
Accused removed my clothes as well as his clothes and forced himself on me. Accused caught hold of me. I told him that I wanted to go to my mother but he did not release me."
43 At this stage some Court questions were put to the prosecutrix to elicit further details from prosecutrix whereupon she replied by stating that "Usne apna kapra uttara aur mere kapra utara, muje kauli bhar kar bistar par leta diya. Usne mere pure shareer par chuha. Usne do bari mere saath galatkaam kiya. Uske galatkaam karne se mujhe pate me S.C. No. 53/12 : State vs. Sajid : Page No. 20 of 28 21 nichey dard hua. Waha kamre me koi nahi tha to mai bata bata saki ki galatkam hua hai. Mai sab nahi bata sakti kyoki maine esa pahley kabhi nahi kiya."
44 The prosecutrix further deposed that,
"We stayed at house of the friend of accused for three days.
Accused used to leave me at that house with wife of his friend and he used to return back to his house so that nobody would know that I was with him. My father filed a complaint. My father suspected accused as earlier also he had troubled me and I had told about it to my parents. Police made inquiries from accused. Initially accused denied that I was with him but later on he admitted so before the police. The police was brought by accused to house of his friend. One Manu, our neighbourer also came with the police and accused. I was taken to PS. My father came to PS and I was taken to hospital for medical examination by the police. My mother also accompanied me. I was sent to Nari Niketan for two days. I was taken to court for my statement. I told to the Judge whatever had happened with me but, only few questions were asked at that time and I did not give a detailed statement like today."
45 A leading question was also put to prosecutrix in response to which prosecutrix deposed that it is correct that accused had threatened me that in case I told about the incident to anyone he would kill me.
S.C. No. 53/12 : State vs. Sajid : Page No. 21 of 28
22
46 During her crossexamination, she deposed that there were 23 guards on the
gate of the society where she had gone for work but she could not state how the accused knew that she was working in that particular society. Prosecutrix admitted that she knew accused since 34 years prior to the incident. She volunteered to state that accused was residing in her locality and so she knew him as a neighbourer. She further admitted that 34 years prior to the incident, she had gone to Ajmer Sharif with the accused. She volunteered to state that accused was taking a bus in which her family, her aunt's family (mausi) etc all had gone. She denied the suggestion that she had developed friendship with accused when she went to Ajmer Sharif in his bus or that she had visited Nizamuddin Dargha several times with the accused or that she had called accused outside the society at 4pm and had told him that she would meet him there. She admitted that she had sat on the motorcycle of accused of her own and that he had not forced her to sit on his motorcycle. She denied the suggestion that accused had not threatened her in any manner. 47 During her further crossexamination, a specific question was put to prosecutrix regarding alleged threats by the accused and why did she not raise any alarm to attract attention of guards of the society and other passersby. The prosecutrix hesitated to answer the question. She was prompted again to reply to the question and after being so prompted for about five minutes the witness narrated that she did not raise any alarm without explaining reason thereafter.
48 During further crossexamination, PW4 deposed that there was a distance of 23 kms from the society to the house of Vicky but she did not remember if any traffic signals had fallen on the way to said house from Farmers Society. She also did not remember if on S.C. No. 53/12 : State vs. Sajid : Page No. 22 of 28 23 the way three red light signals fell where they had to wait for 510 minutes each. She admitted that there was heavy traffic on the way from society to house of Vicky and accused was not having any knife etc. with him when he threatened her. She denied the suggestion that police personnels as well as PCR van were stationed on the traffic signals that fell on the way.
49 During her further crossexamination, the PW3 deposed that the door of the house of Vicky was closed when they reached there and that it was opened by his wife and that she did not protest when accused produced her as his wife at the house of Vicky. She volunteered to state that accused had told her not to say anything at his friend's house. She then deposed that accused had not stated in her presence to Vicky and his wife that he and his wife i.e PW3 would stay there for 34 days after which he would arrange for a rented accommodation and they would shift there. The PW3 admitted that after some time i.e at about 5:00 pm Vicky's wife gave her tea and biscuits and that at about 8:00 pm accused Sajjid went to market and brought chowmin for everyone which was eaten by all of them and that at that time Vikcy, his wife, accused and PW3 were sitting in a friendly manner and having a normal interaction like couples who are on friendly terms and that thereafter Vicky and his wife went to one room and she and accused went to other room. She denied the suggestion that after going to the other room they locked it from inside and thereafter she had physical relations with accused of her own free will and consent and that she did not raise any alarm at that time. The PW3 further deposed that Vicky and his wife did not come on hearing her alarm as they were not in that house at that time and that she did not know whether the room in which Vicky and his wife went and the room in which she and accused went were in close vicinity or they were at some distance. The PW3 denied the suggestion S.C. No. 53/12 : State vs. Sajid : Page No. 23 of 28 24 that she and accused embraced each other and kept lying there for few hours and that after two hours she and accused again had sexual intercourse with her consent and free will and that she had not raised any alarm at that time. The PW3 then deposed that she had stated to the police that she had raised alarm when accused raped her. The PW3 further denied the suggestion that she had not raised any alarm and they is why she had not stated so in her statement to the police. She also denied that on 10412 accused Sajjid left for his work at about 8:00 am or that at that time he gave her Rs.200 or that he told her that she was free to go to society for her work or to go to her parents house. She admitted that from 10412 till 12/13412 when the police came she remained alone at Vicky's house with said Vicky and his wife and that during the said period she did not tell Vicky or his wife that accused had brought her with him forcibly or that he had raped her. The PW3 further denied the suggestion that she was having love affair with accused since 34 years or that whatever had happened had happened with her free will and consent or that accused had been falsely implicated in the present case to save the honour of her family. 50 From the facts brought out from the crossexamination of prosecutrix, there is a serious doubt whether there was any enticement or taking away of the prosecutrix by the accused. Though in her statement as PW4 in her examination in chief prosecutrix reiterated that on 09.04.2012, when she was returning back to her home after work at about 4:00 PM and came out of the gate of the society where she had gone for work, she met accused Sajid, who took her forcibly on his bike to Prahladpur to house of his friend Vicky and forced himself on her. During her crossexamination prosecutrix has admitted that she knew accused from 3 - 4 years prior to the incident and that she had gone to Ajmer Sharif with accused. She admitted that she had sat on the motorcycle of the accused of her own and that he had not S.C. No. 53/12 : State vs. Sajid : Page No. 24 of 28 25 forced her to sit on it in any manner. Despite being given opportunity, the prosecutrix could not give any explanation why she had not raised alarm to attract attention of guards of the society or other passersby.
51 The prosecutrix could also not explain why she had not raised alarm, when she was forcibly taken (as claimed by prosecutrix) from Farmer Society to house of Vicky, friend of accused, and why she made no effort to get off the bike on the way or when the same stopped at traffic signal, while covering distance of 2 3 kms, in between the said two places. It is noteworthy that prosecutrix claims that she was being taken away forcibly on motorcycle by the accused when in fact she was not in any bonded or threatened captivity of the accused and had she raised alarm or attempted to get off or jump from the motorcycle of accused, he would have been rendered helpless and would have not dared to use force upon prosecutrix again in public.
52 Further the subsequent conduct of prosecutrix, at the house of Vicky, friend of accused also creates doubt regarding alleged force being used by prosecutrix. The prosecutrix allowed accused to introduce her as his wife to his friend and his wife and then spent time with them, had meal, exchanged pleasantries and retired to one of their rooms with accused without a murmur of protest. She made a feeble attempt to justify her behaviour by stating that she had raised alarm when accused raped her. She again contradicted herself when she stated that at that time Vicky and his wife were not in house. Though prosecutrix had earlier stated that when she and accused retired to one room, Vicky and his wife went to the other, she later stated that she did not know if room to which Vicky and his wife, went was in close vicinity or not.
S.C. No. 53/12 : State vs. Sajid : Page No. 25 of 28
26
53 It is also brought out from crossexamination of prosecutrix that she remained
with Vicky and his wife from 10.04.2012 till 12 / 13.04.2012 but during this time she never told Vicky or his wife that accused had brought her forcibly or that he had raped her and even though accused was not present continuously with her in the said house during period from 10.04.2012 to 12 / 13.04.2012. She made no effort to escape from Vicky's house or to raise alarm or to contact the police and / or her parents / relatives. The entire conduct of prosecutrix belies her claim of being an 'innocent maiden', who is forcibly taken away / kidnapped and sexually abused against her will. Even the factum of any prior inducement for such 'taking away' could not be proved by prosecutrix. As regards fact that accused had threatened her earlier also, as stated by prosecutrix in her statement u/s.164 CrPC, Ex.PW7/B, about which prosecutrix told her parents who threatened accused, there is no support for these "alleged threats" by accused and counter threats to accused by her parents in statement made by PW4 Sh. Sameer Sheikh, father of the prosecutrix. Rather PW4 has stated in his statement, recorded on 21.01.2013, that though at that time he was suspicious that accused has taken away his daughter but later he came to know that his daughter was also interested in accused and had gone with him voluntarily. He also stated that his wife had told him, when prosecutrix went missing, that she (wife of PW4) and prosecutrix had an altercation due to some household work, after which, prosecutrix gave a call to accused and told him to take her away.
54 In the present case, from the facts and circumstances of the case, more particularly testimony of prosecutrix, and her father PW4 Sameer Sheikh, the element of 'taking away' or 'enticement' is found to be lacking. In view of the material on record, it S.C. No. 53/12 : State vs. Sajid : Page No. 26 of 28 27 appears that prosecutrix was willing and consenting party and it seems that everything has happened with her sweet will. In these circumstances, the factum of kidnapping of prosecutrix does not stand proved. I am supported in my view by judgment in case titled as Bunty vs. State (G.N.C.T.) of Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011 by the Hon'ble Delhi High Court, wherein it was held that : "8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had travelled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...."
55 It would also be relevant to refer to the case titled as " S. Varadarajan Vs. State of Madras, AIR 1965 SC 942", wherein while distinguishing between " taking" and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India that : "There is a distinction between " taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361. Where the minor leaves her father's protection knowing and having capacity to know the full import S.C. No. 53/12 : State vs. Sajid : Page No. 27 of 28 28 of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian."
56 Similar view has been taken in judgment in case of State Vs. Sanjay and Naresh Kumar Vs. State (Government of NCT) relied upon by learned counsel for accused. Further the factum of rape and accused having threatened the prosecutrix, also does not stand proved in the facts and circumstances of case.
57 Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has failed to prove the guilt of the accused on record, beyond the reasonable doubts. Accordingly, I acquit accused Sajid of the charged offences, giving him the benefit of doubt.
File be consigned to the Record Room.
(Announced in the open Court ) (Illa Rawat)
(Today on 30.09.2013) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C. No. 53/12 : State vs. Sajid : Page No. 28 of 28
29
FIR No. 143/12
P.S. Prashant Vihar
State Vs. Sajid
30.09.2013
Present : Ld. Additional PP for the State.
Accused on bail with counsel Sh. N.S. Bhullar.
Further arguments heard.
Judgment shall be passed during the course of the day.
ASJ (NorthWest)01
Rohini/Delhi
30.09.2013
At 3:30 PM
Present : As before.
Vide separate judgment, announced today in the open Court, accused has been acquitted of the charged offence.
Accused requests that his previously furnished bail bonds may be accepted in compliance of Section 437A Cr.PC. Request allowed. Accordingly, previous bail bonds of accused is extended for a period of six months from today in terms of Section 437A CrPC.
File be consigned to Record Room.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 30.09.2013 S.C. No. 53/12 : State vs. Sajid : Page No. 29 of 28