Delhi District Court
State vs . 1. Sanjay Chaudhary on 19 July, 2013
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FIR No. 223/11
PS - Begum Pur
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 16/13
Unique ID No. : 02404R0094732012
State Vs. 1. Sanjay Chaudhary
S/o Rajender Chaudhary
R/o Village Mohammadpur,
CRPF Camp Japah,
District Mujaffarpur,
Bihar.
FIR No. : 223/11
Police Station : Begum Pur
Under Sections : 376/366/363/365 IPC
Date of committal to session Court : 25/04/2012
Date on which judgment reserved : 18/07/2013
Date of which judgment announced : 19/07/2013
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FIR No. 223/11
PS - Begum Pur
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C is as under :
That on 10/09/2011, complainant Hemlata W/o Late Sh.
Rohtash R/o C1/48, Naveen Vihar, Rajeev Nagar Ext., Begumpur, Delhi aged 52 years came to PS Begumpur, and got recorded her statement to SI Randeep which is to the effect that, she resides at the said address with her family and works in a factory at Bawana. She has four children including three daughters and one son. On 04/09/2011 at about 2:30 p.m., her daughter/prosecutrix (name withheld being a case u/s 376 IPC) aged 15 years, height 4'6'', color wheatish, body thin, hair black and short, eyes black, face round, who is wearing green color suit salwar and wearing black color chappal has gone out of the house without telling anything and has not returned to the house so far. She has been searched by them by their own efforts but could not be found. Now, they have come to know from here and there (idhar udhar se pata chala hai) that her daughter/prosecutrix has been enticed/taken away by one boy named Sanjay who lives in their colony, after inducing her. Legal action be
2 of 47 3 FIR No. 223/11 PS - Begum Pur taken against him. The statement has been heard and is correct. From the statement on finding that offence u/s 363 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by SI Randeep. During the course of investigation every effort was made for search of prosecutrix and Sanjay. W.T. Message was flashed on all over India basis. Information regarding missing (Lawaris) proforma NCRB/CBI was sent to Doordarshan. Hue and Cry Notice was pasted on the Notice Boards of all the Police Stations and at different places. Statement of the witnesses U/s 161 Cr.P.C. were recorded. On 29/12/2011 during the course of investigation Sanjay Chaudhary of his own came to the Police Station and stated that he came to know that a kidnapping case has been registered against him at PS Begum Pur. He declined to have any information regarding prosecutrix. On 31/03/2012, the complainant Hemlata alongwith the prosecutrix came to the Police Station and the prosecutrix was interrogated and joined in the investigation and her statement U/s 161 Cr.P.C. was recorded in which she stated to the effect that, Sanjay Chaudhary had enticed her away on the false pretext of marriage and he made physical relations with her without her consent. Sanjay had taken her to the house of his sister at 3 of 47 4 FIR No. 223/11 PS - Begum Pur Bhajanpura, Delhi where he made physical relations with her and thereafter he took her to Bihar and there also he made physical relations with her without her consent. After 13/09/2011 Sanjay did not meet her. Medical examination of the prosecutrix was got conducted vide MLC No. 21511/11 at SGM Hospital. She (Prosecutrix) in the presence of her mother refused to get her internal medical examination conducted. Statement of prosecutrix U/s 164 Cr.P.C. was got recorded. On 03/01/2012 accused Sanjay Chaudhary was arrested. The age proof documents of the prosecutrix were obtained and as per the documents her date of birth is 15/03/1990. Sections 365/366/376 IPC were added in the case.
Upon completion of the necessary further investigation challan u/s 363/365/366/376 IPC was prepared against accused Sanjay Choudhary and was sent to the court for trial.
2. Since the offences u/s 366/376 IPC are exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C., the case was committed to the Court of Session u/s 209 Cr.P.C.
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3. Upon committal of the case against accused to the Court of Session, after hearing on charge prima facie a case U/s 363/365/366/376 IPC was made out against accused Sanjay Chaudhary. Charge was framed accordingly which was read over and explained to accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 14 witnesses. PW1 HC Kashi Ram, PW2 Smt. Hemlata, PW3 Prosecutrix, PW4 Sh. Om Dutt Sharma, PW5 W/Constable Manju, PW6 Constable Wazir Singh, PW7 Dr. Aditi Aggarwal, Senior Resident Obs. & Gynae, SGM Hospital, Mangol Puri, Delhi, PW8 Dr. Brijesh Singh CMO, SGM Hospital, Mangol Puri, Delhi, PW9 W/Constable Suman, PW10 W/constable Lata Kumari, PW11 Ms. Rajeshwari, TGT, SKV, Uttam Nagar, PW12 Dr. Binay Kumar, CMO, SGM Hospital, Mangol Puri, Delhi, PW13 SI Randeep and PW14 - Sh. Vishal Singh, Learned Civil Judge, Tis Hazari Courts, Delhi.
5. In brief the witnessography of the prosecution witnesses is 5 of 47 6 FIR No. 223/11 PS - Begum Pur as under : PW1 HC Kashi Ram, is the duty officer who deposed that on 10/09/2011, he was posted as HC in the PS - Begum Pur and was working as Duty Officer from 4:00 p.m. to 12:00 mid night. On that day, at about 6:00 p.m., PSI Randeep presented a rukka before him. After receiving the rukka, he made endorsement Ex. PW1/A on it which bears his signature at point 'A' and thereafter, case FIR No. 223/11 u/s 363 IPC was got registered through Computer Operator. After registration of the case, he handed over the computerized copy of FIR and rukka which were sent to Constable Ashok for further handing over the same to PSI Randeep for investigation and proved the computerized copy of the FIR Ex. PW1/B signed by him at point 'A'.
PW2 Smt. Hemlata, is the mother of the prosecutrix, who deposed regarding the missing of her daughter and proved her complaint made to the Police Ex. PW2/A, recovery memo of the prosecutrix Ex. PW2/B signed by her at point 'A', arrest memo of the accused Sanjay Chaudhary Ex. PW2/C and deposed on the investigational aspects which she joined.
6 of 47 7 FIR No. 223/11 PS - Begum Pur PW3 Prosecutrix, is the victim who deposed regarding the incident and also deposed that she gave her statement before the Police and also gave her statement in the Court before a Magistrate.
PW4 Sh. Om Dutt Sharma, is the landlord of the accused, who deposed that he is having his dairy business. Accused stayed as tenant in a room in his house for about 89 months in the year, 2011. A girl named Madhvi and her son also used to stay with the accused. He did not enter into any rent agreement with the accused nor was he issuing any rent receipt as accused had been brought to him by one Hemlata, who took guarantee of accused. About 11½ months prior to registration of the case, Madhvi left accused. At that time, she took away all the articles except clothes of accused and some utensils. Accused also left on 04/09/2011. He did not take his articles with him. He did not inform him (PW4) as to where he was going. Accused never returned back to his tenanted room in his house. He correctly identified the accused Sanjay Chaudhary present in the Court.
7 of 47 8 FIR No. 223/11 PS - Begum Pur PW5 W/Constable Manju, who joined the investigation with SI Randeep and deposed on the investigational aspect and deposed that on 31/12/2011, she got conducted the medical examination of the prosecutrix at SGM hospital and obtained her MLC.
PW6 - Constable Wazir Singh, who joined investigation with IO SI Randeep Singh and deposed on the investigational aspects and proved the arrest memo of the accused Ex. PW2/C signed by him at point A, his personal search Ex. PW6/A signed by him at point A and deposed that he got conducted the medical examination of the accused and proved the seizure memo of the sealed exhibits handed over by the concerned doctor after the medication examination of accused Ex. PW6/B signed by him at point 'A'.
PW7 Dr. Aditi Aggarwal Senior Resident Obs. & Gynae, SGM Hospital, Mangol Puri, Delhi, who deposed that on 31/12/2011 patient/prosecutrix was produced before her after being examined by the CMO on duty and prosecutrix refused for her medical examination and proved her findings in this regard on the portion encircle 'X' to 'XC' 8 of 47 9 FIR No. 223/11 PS - Begum Pur PW7/A on the MLC (Ex. PW12/A) signed by her at point 'A'.
PW8 Dr. Brijesh Singh CMO, SGM Hospital, Mangol Puri, Delhi, who on 03/01/2012 medically examined patient/accused Sanjay Chaudhary and opined that there is nothing to suggest that accused cannot perform the act of sexual intercourse and proved the MLC Ex. PW8/A signed by him at point 'A'.
PW9 W/Constable Suman, who joined the investigation with SI Randeep and deposed on the investigational aspects and deposed that on 15/12/2011, she along with SI Randeep and HC Hakam had gone to Aayapur, Mujaffarpur, Bihar in search of accused Sanjay and prosecutrix but could not be found there.
PW10 W/Constable Lata Kumari who deposed that on 31/12/2011 she was posted as Constable in PS - Begum Pur. On that day, SHO has directed her to reach at SGM Hospital, Mangol Puri as a reliever of W/Constable Manju. She reached in the Hospital and she met IO SI Randeep. The medical examination of prosecutrix (name 9 of 47 10 FIR No. 223/11 PS - Begum Pur withheld) was going on at that time. After medical examination, prosecutrix (name withheld) had refused to go with her parents and the mother of the prosecutrix also refused to take her. Thereafter, she (PW10) took the prosecutrix to Nirmal Chhaya Short Stay and she was left there in proper condition.
PW11 Ms. Rajeshwari, TGT, SKV, Uttam Nagar, Delhi, who deposed that she has brought the summoned record. As per the record, prosecutrix was admitted in the school on 11/04/2002, vide serial no. 9337 in class 6th. As per the record, her date of birth is 15/03/1990. She (prosecutrix) was admitted in the school on the basis of SLC, issued from Head Master Nigam Prathmik Vidyalya. The copy of admission register is Ex. PW11/A, the copy of admission form is Ex. PW11/B and copy of the SLC of previous school is PW11/C. PW12 Dr. Binay Kumar, CMO, SGM Hospital, Mangol Puri, Delhi, who deposed that on 31/12/2011, he medically examined patient/prosecutrix (name withheld) and proved the MLC Ex. PW12/A bearing his signature at point 'A' and further deposed that the patient was 10 of 47 11 FIR No. 223/11 PS - Begum Pur referred to SR Gynae for examination.
PW13 SI Randeep, is the Investigation Officer (IO) of the case, and who deposed that on 10/09/2011, complainant Smt. Hemlata came in PS and got recorded her statement Ex. PW2/A. He attested his signature at point 'A' bearing his signature at point 'B' and prepared Rukka Ex. PW13/A bearing his signature at point 'A' and handed over the rukka to duty officer. Thereafter, he alongwith complainant reached C1/48, Navin Vihar, Rajiv Nagar, Delhi and made inquiries there and on inquiry he came to know that Sanjay had taken away prosecutrix on 04/09/2011 and since then Sanjay was also missing from his tenanted house. He went to the tenanted house of accused Sanjay Chaudhary but his owner Sh. Om Dutt Sharma was not found. Constable Ashok came at the spot and handed over to him the copy of FIR and original rukka and came back to the police station. He flashed the W.T. Message and completed the other formalities. On 11/09/2011, he reached at the house of the complainant at C1/48 and recorded the supplementary statement. He also made inquiries from Om Dutt Sharma, landlord of accused Sanjay Chaudhary and recorded his statement. He searched for the 11 of 47 12 FIR No. 223/11 PS - Begum Pur prosecutrix and accused, but could not found. On 15/12/2011, he alongwith W/Constable Suman and HC Hakam went at Village Japah, near C.R.P.F. Camp, Physical College, Mujaffar Pur, the native village of accused Sanjay Chaudhary but accused was not found there. He made inquiries in the village and came to know that in the month of July, father of Sanjay Chaudhary was expired and Sanjay Chaudhary came in the village at that time. Prosecutrix alongwith one Madhvi had also come in the village and after staying there for about 1015 days, all the three had left the village and thereafter accused Sanjay had not returned in the village except for one day. On 23/12/2011, he obtained the age proof of the prosecutrix from Sarvodya Kanya Vidyalya and according to which her date of birth was 15/03/1990 and the certificate is Ex. PW13/B. On 29/12/2011, suspect Sanjay came in the Police Station and on interrogation he told that prosecutrix was not with him and he further told that he is residing near Tanwar Properties, Masjidwali Gali, Badli. On 31/12/2011, prosecutrix (name withheld) was produced by her mother Hem Lata and she was taken into possession vide memo Ex. PW2/B, bearing his signature at point A. He recorded the statement of the prosecutrix and her mother. He alongwith lady Constable Manju, took 12 of 47 13 FIR No. 223/11 PS - Begum Pur prosecutrix in SGM Hospital where she was medically examined but she refused to get herself internally medically examined. Prosecutrix was sent to Short Stay Home at Hari Nagar. On 01/01/2012, prosecutrix (name withheld) was produced in the court and he moved an application for recording her statement U/s 164 Cr.P.C. The carbon copy of the same is Ex. PW13/C, bearing his signature at point 'A'. On 03/01/2012, he alongwith Constable Wazir had left the Police Station in a private vehicle and after some distance from the Police Station, they met prosecutrix alongwith her mother and they were also joined in the investigation. They reached near Tanwar Properties, Badli but accused Sanjay Chaudhary was not found there. Thereafter, they reached at Bus Stand Bajan Pura and from there at the instance of prosecutrix accused Sanjay Chaudhary was apprehended. He was interrogated and arrested vide memo Ex. PW21/C and his personal search was conducted vide memo Ex. PW6/A, bearing his signature at point 'X'. He recorded supplementary statement of prosecutrix and her mother and they were set free. Thereafter, accused Sanjay Chaudhary took them at the house of her sister at Tukmirpur, Gali No. 3, Bhajan Pura but no one was found at the house. Thereafter, accused was taken to SGM Hospital where he 13 of 47 14 FIR No. 223/11 PS - Begum Pur was medically examined and his blood sample was seized vide memo Ex. PW6/B, bearing his signature at point 'B'. Accused was brought to Police Station and case property was deposited in the Malkhana. He recorded the statement of witnesses. On 04/01/2012, accused Sanjay Chaudhary was produced in the Court and was sent to JC. After completing the investigation, Challan was prepared and filed in the Court.
PW14 - Sh. Vishal Singh, Learned Civil Judge, Tis Hazari Courts, Delhi who recorded the statement of the prosecutrix u/s 164 Cr.P.C. and proved the statement of the prosecutrix u/s 164 Cr.P.C. as Ex. PW14/A (running into four pages) bearing his signature at points 'A' to 'D'. He also proved his signature on the application (already Ex. PW13/D) of the IO SI Randeep for obtaining the copy of the statement at point 'B'.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
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6. Statement of accused Sanjay Chaudhary was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication and did not opt to lead any defence evidence.
7. Learned Counsel for the accused submitted that the age of prosecutrix was about 21 years at the time of incident, she was major and has knowledge about good and wrong. She was working in factory at Uttam Nagar, Delhi her mother and the prosecutrix wanted the marriage with the accused but the marriage was not solemnized between prosecutrix and accused because accused promised to the prosecutrix that he would sold his village property and will open a new cosmetic shop but neither the accused sold his village property nor he opened the shop of cosmetic due to which both i.e. prosecutrix and accused could not solemnize their marriage.
Learned Counsel for accused further submitted that before the incident prosecutrix (name withheld) has gone two or three times at the native place of accused with her friend Madhuri and accused Sanjay Chaudhary and they had stayed there about 810 days for performing the 15 of 47 16 FIR No. 223/11 PS - Begum Pur Tarvi of the father of the accused.
Learned Counsel for accused further submitted that the accused never ever promised to the prosecutrix for marriage and they were meeting with each other as a friend and were also doing work on the same place at Mobile Charging Factory, Uttam Nagar, Delhi.
Learned Counsel for accused further submitted that on the trial of the case the prosecutrix has been coming to the Court on every hearing for meeting with the accused she has been going to Tihar Jail for meeting with the accused, and when the Police officials asked the prosecutrix about her relation with the accused then she told them that she is wife of the accused.
Learned Counsel for accused further submitted that on 21/09/2012, prosecutrix recorded her statement before the Court of Ms. Illa Rawat, Learned ASJ, Rohini, Delhi which is totally false because the mother of the prosecutrix had directed the prosecutrix to give the false statement against the accused and also mother of the prosecutrix told that 16 of 47 17 FIR No. 223/11 PS - Begum Pur if "you not given the statement against the accused then I will kill you."
Learned Counsel for accused further submitted that the said case is totally based on false, frivolous, bogus and concocted story and prayed for the acquittal of the accused on the charges levelled against him.
8. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard Sh. S. C. Sroai, Learned Addl. PP for the State and Sh. S. K. Azad, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 363/365/366/376 17 of 47 18 FIR No. 223/11 PS - Begum Pur IPC against the accused Sunil Chaudhary is that on 04/09/2011 at about 2:30 a.m. from C - 1/48, Naveen Vihar, Rajeev Nagar Extn. Begum Pur, Delhi, within the jurisdiction of PS - Begum Pur, he kidnapped prosecutrix (name withheld) D/o Sh. Rohtash Vikal, a minor aged about 15 years, out of the keeping of hr lawful guardian i.e. her mother without the consent of such guardian and that on the above date, time and place he abducted the prosecutrix (name withheld), with intent to cause her to be secretly and wrongfully confined and that, on the above said date, time and place, he kidnapped prosecutrix (name withheld), took her to his sister's house at Bhajan Pura, Delhi and then to Bihar, and kept her there with intent to force her or seduce her to have illicit intercourse with him or to compel her to marry him and that, on the above date, time and place you committed rape upon prosecutrix (name withheld) D/o Sh. Rohtash, aged about 15 years, without her consent and against her wishes.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at 18 of 47 19 FIR No. 223/11 PS - Begum Pur some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
12. PW2 - Smt. Hem Lata, mother of the prosecutrix in reply to a leading question put by Learned Addl. PP for the State deposed that : "It is correct that I had stated the age of my daughter in my statement PW2/A to the Police."
During her crossexamination by the Learned Counsel for the accused, PW2 - Hem Lata has deposed : "It is correct that at present my daughter has completed the age of 21 years. It is correct that I am not aware about the actual date of birth of my daughter. My daughter studied upto 6th class."
On perusal of the Ex. PW2/A, the same is found to be the Recovery memo of the prosecutrix in which the age has been mentioned as 21 years. On a conjoint reading of the Ex. PW2/A with the part of the crossexamination of PW2 - Smt. Hem Lata as reproduced herein above, it clearly indicates that though, she (Hem Lata) has deposed 19 of 47 20 FIR No. 223/11 PS - Begum Pur regarding the age of her daughter/prosecutrix as 21 years but the same gets nullified when during her crossexamination she has also admitted to be correct that she is not aware about the actual date of birth of her daughter. So it remained a mystery as to on what basis she disclosed the age of her daughter as 21 years. In the circumstances, the said part of the testimony of PW2 - Hem Lata cannot be relied upon on the aspect of the age of the prosecutrix.
PW13 - SI Randeep, in his crossexamination has deposed that : "On 23/12/2011, I obtained the age proof of prosecutrix (name withheld) from Sarvodya Kanya Vidyalya and according to which her date of birth was 15/03/1990 and the certificate is Ex. PW13/B."
The perusal of he certificate Ex. PW13/B, interalia shows the date of birth of the prosecutrix (name withheld) D/o Late Sh. Rohtash as 15/03/1990.
PW11 Ms. Rajeshwari, TGT, SKV, Uttam Nagar, Delhi, has deposed that she has brought the summoned record. As per the 20 of 47 21 FIR No. 223/11 PS - Begum Pur record, prosecutrix was admitted in the school on 11.04.2002, vide serial no. 9337 in class 6th. As per the record, her date of birth is 15.03.1990. She (prosecutrix) was admitted in the school on the basis of SLC, issued from Head Master Nigam Prathmik Vidyalya. The copy of admission register is Ex. PW11/A, the copy of admission form is Ex. PW11/B and copy of the SLC of previous school is PW11/C. Despite grant of opportunity, PW11 - Ms. Rajeshwari was not crossexamined on behalf of the accused.
In the circumstances, it stands proved on the record that the date of birth of the PW3 - prosecutrix is 15/03/1990. No evidence to the contrary has been produced or led on the record on behalf of the accused.
As the date of alleged incident is of 04/09/2011 and the date of birth of the prosecutrix is 15/03/1990, on simple arithmetical calculation, the age of prosecutrix comes to 11 years, 05 months and 19 days as on the date of incident on 04/09/2011.
In view of above and in the circumstances, it stands established on record that PW3 prosecutrix was aged 11 years, 05 21 of 47 22 FIR No. 223/11 PS - Begum Pur months and 19 days as on the date of alleged incident on 04/09/2011.
13. Learned Counsel for the accused submitted that the age of the prosecutrix was about 21 years at the time of the incident and she was major.
I have carefully perused and analysed the evidence on record.
In view of as to what has been discussed and analysed here inabove it stands established on the record that the age of PW3 - prosecutrix was 11 years, 05 months and 19 days as on the date of alleged incident on 04/09/2011.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused. MEDICAL EVIDENCE OF THE PROSECUTRIX
14. PW12 Dr. Binay Kumar, CMO, SGM Hospital, Mangol Puri, Delhi, who deposed that on 31/12/2011, he medically examined patient/prosecutrix (name withheld) and proved the MLC Ex. PW12/A bearing his signature at point 'A' and further deposed that the patient was 22 of 47 23 FIR No. 223/11 PS - Begum Pur referred to SR Gynae for examination.
PW7 Dr. Aditi Aggarwal Sr. Resident OBS & Gynae, SGM Hospital, Mangol Puri, Delhi, who deposed that on 31/12/2011 patient/prosecutrix was produced before her after being examined by the CMO on duty and prosecutrix refused for her medical examination and proved her findings in this regard on the portion encircle 'X' to 'XC' Ex. PW7/A on the MLC (Ex. PW12/A) signed by her at point 'A'.
Despite grant of opportunity neither PW12 - Dr. Binay Kumar nor PW7 - Dr. Aditi Aggarwal were crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical and the gynaecological examination of PW3 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED
15. PW8 Dr. Brijesh Singh CMO, SGM Hospital, Mangol Puri, Delhi, who medically examined patient/accused Sanjay Chaudhary and opined that there is nothing to suggest that accused cannot perform 23 of 47 24 FIR No. 223/11 PS - Begum Pur the act of sexual intercourse and proved the MLC Ex. PW8/A signed by him at point 'A'.
Despite grant of opportunity PW8 - Dr. Brijesh Singh was not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Sanjay Chaudhary was capable of performing any sexual activity.
16. Now let the testimonies of PW3 - Prosecutrix, PW2 - Hem Lata, her mother be perused and analyzed.
PW3 prosecutrix, who in her examinationinchief has deposed which is reproduced and reads as under : "I knew accused Sanjay about three years prior to the incident. On 03/09/2011, accused left me at the house of his sister at Bhajanpura and returned back to his house at Begum Pur. When my mother and my uncle (mama) inquired from accused as to where I was, he told them that he was not aware of my whereabouts. The landlord of the house where accused was residing, locked the premises. Accused escaped from the roof and came to Bhajjan Pura on next day and told me 24 of 47 25 FIR No. 223/11 PS - Begum Pur about it. Accused started residing at the house of his sister at Bhajjan Pura and we stayed there for 4/5 days after which he took me to his native village at Mujjfar Pur where we stayed for two days. During our stay at the house of his sister, accused had established "Galat Sambandh"
with me. He did so again when we were staying at village. Court Question : What do you mean by "Galat Sambandh"? Ans. : Accused had sexual relations with me like a man and wife.
Accused had promised to marry me but he did not do so. I was four months pregnant when I came back to my mother. Accused brought me to Delhi from Mujjafarpur (Bihar) and left me in Uttam Nagar while telling me to go to the house of my friend. Thereafter, I went to the house of my friend Babita and remained there for one night. Again said, I went to the house of my friend in the morning and in the evening, accused called me to Uttam Nagar by giving a telephone call on my friend's mobile phone. I came to Uttam Nagar Bus Stand but I did not find accused there. I searched all the four Bus Stands at Uttam Nagar. I took shelter at Shantoshi Mata Mandir at Hari Nagar at Night. I again searched for accused in the morning at the places where he was expected to be found but I could not find him. I went to the native village of accused at Mujjafarpur (Bihar). The family members of accused at village turned me away saying that I would put his life to risk. I pleaded with them saying that I was unable to find the accused but they refused to listen to me. They gave me money for train fare and sent me away. I came to Delhi and went to the house of sister of accused. She allowed me to stay over night but turned me away in the morning. When I was leaving the house of sister of accused, I found accused standing outside the gali. Accused took me to Anand Vihar Railway Station. We stayed at Railway Station for two days. After two days, accused received
25 of 47 26 FIR No. 223/11 PS - Begum Pur a call for job and he took me alongwith him to Uttam Nagar. Accused told me to go house of my friend and stayed there for 2/3 days till he arranged for job and room. I did not meet accused thereafter. My friend's mother told me that it was not possible for her to keep me at her house for 2/3 days. I took up work as house maid in a house at Paschim Vihar. I worked for 2/3 months and used to stay in the said house itself. I had taken the said work with the help of my aunty Paramjeet, who I knew because I was doing job of sales girl with her. The lady for whom I was working was to sell off her house and so she told me to make my own arrangements. I then gave a call to my mother who told me to come Hari Nagar Mandir. I went there and my mother also came there to take me and I told all the facts to my mother.
On the next day morning, my mother took me to PS. I gave my statement before the Police and also gave my statement in the Court before a Magistrate. I was taken for my medical examination to Sanjay Gandhi Hospital but I refused my medical examination out of fear. I stayed at Nari Niketan for about 3 days after which my mother took me to my brother's house.
I was four months pregnant when I returned to my mother. One day I was going to fetch water and I slipped and fell. I took medicine for my injury but in the process, I had an abortion. Accused Sanjay was arrested by the Police from Bhajjan Pura at my instance. At that time, I had asked accused for marriage but he refused to even recognize me.
I can identify accused Sanjay Chaudhary.
At this stage witness has seen through th design of the wooden partition and pointed towards the accused Sanjay Chaudhary, who is sitting in the Court.
The accused did physical relations with me without my 26 of 47 27 FIR No. 223/11 PS - Begum Pur consent. I had told him that since our marriage had not been done till that time so I refused to the accused for the abovesaid act. Since accused promised me that he would marry me, I agreed to have physical relations with him."
From the aforesaid narration of PW3 - prosecutrix, it is clear that she knew accused Sanjay about three years prior to the incident. On 03/09/2011, accused left her at the house of his sister at Bhajanpura and returned back to his house at Begum Pur. When her mother and her uncle (mama) inquired from accused as to where she (PW3 prosecutrix) was, he told them that he was not aware of her whereabouts. The landlord of the house where accused was residing, locked the premises. Accused escaped from the roof and came to Bhajjan Pura on next day and told her (PW3 - prosecutrix) about it. Accused started residing at the house of his sister at Bhajjan Pura and they stayed there for 4/5 days after which he took her to his native village at Mujjfar Pur where they stayed for two days. During their stay at the house of his sister, accused had established "Galat Sambandh" with her. He did so again when we were staying at village. By "Galat Sambandh"
she means accused had sexual relations with her like a man and wife.
27 of 47 28 FIR No. 223/11 PS - Begum Pur Accused had promised to marry her but he did not do so. She was four months pregnant when she came back to her mother. Accused brought her to Delhi from Mujjafarpur (Bihar) and left her in Uttam Nagar while telling her to go to the house of her (PW3 - prosecutrix) friend. Thereafter, she went to the house of her friend Babita and remained there for one night. Again said, she went to the house of her friend in the morning and in the evening, accused called her to Uttam Nagar by giving a telephone call on her friend's mobile phone. She (PW3 - prosecutrix) came to Uttam Nagar Bus Stand but she did not find accused there. She searched all the four Bus Stands at Uttam Nagar. She took shelter at Shantoshi Mata Mandir at Hari Nagar at Night. She again searched for accused in the morning at the places where he was expected to be found but she could not find him. She went to the native village of accused at Mujjafarpur (Bihar). The family members of accused at village turned her away saying that she would put his life to risk. She pleaded with them saying that she was unable to find the accused but they refused to listen to her. They gave her money for train fare and sent her away. She came to Delhi and went to the house of sister of accused. She allowed her to stay over night but turned her away in the morning. When she was 28 of 47 29 FIR No. 223/11 PS - Begum Pur leaving the house of sister of accused, she found accused standing outside the gali. Accused took her to Anand Vihar Railway Station. They stayed at Railway Station for two days. After two days, accused received a call for job and he took her alongwith him to Uttam Nagar. Accused told her to go to house of her friend and stayed there for 2/3 days till he arranged for job and room. She does not meet accused thereafter. her friend's mother told her that it was not possible for her to keep her at her house for 2/3 days. She took up work as house maid in a house at Paschim Vihar. She worked for 2/3 months and used to stay in the said house itself. She had taken the said work with the help of her aunty Paramjeet, whom she knew because she was doing job of sales girl with her. The lady for whom she was working was to sell off her house and so she told her to make her own arrangements. She then gave a call to her mother who told her to come Hari Nagar Mandir. She went there and her mother also came there to take her and she told all the facts to her mother. On the next day morning, her mother took her to PS. She gave her statement before the Police and also gave her statement in the Court before a Magistrate. She was taken for her medical examination to Sanjay Gandhi Hospital but she refused her medical examination out of 29 of 47 30 FIR No. 223/11 PS - Begum Pur fear. She stayed at Nari Niketan for about 3 days after which her mother took her to her (PW3 prosecutrix) brother's house. She was four months pregnant when she returned to her mother. One day she was going to fetch water and she slipped and fell. She took medicine for her injury but in the process, she had an abortion. Accused Sanjay was arrested by the Police from Bhajjan Pura at her instance. At that time, she (PW3 - prosecutrix) had asked accused for marriage but he refused to even recognize her. She correctly identified the accused in the Court. The accused did physical relations with her without her consent. She had told him that since their marriage had not been done till that time so she (PW3 prosecutrix) refused to the accused for the abovesaid act. Since accused promised her that he would marry her, she agreed to have physical relations with him.
PW3 - Prosecutrix during her crossexamination has negated the suggestions that accused was also working as a salesman for the said contractor or that she had asked accused to open a cosmetic shop for her after the marriage vol. it is the accused who had told her that he shall open a cosmetic shop for her after disposing off his property after 30 of 47 31 FIR No. 223/11 PS - Begum Pur the marriage or that the sister of accused asked her to go back or that she did not leave the house of sister of accused vol. the sister of accused told/assured that she will get her (prosecutrix) married with accused or that her mother was aware of her love affair with the accused or that she is refusing to marry accused now under influence of her mother vol. she does not want to marry him as she does not trust him or that she did not return back home as her family members were against the accused or that at that time she used to cook food for accused or that the accused never promised to marry her or that she went with him of her own free will and accord or that she had sexual relations with the accused of her own free will without any promise of marriage or that she did not give her statement anywhere or that her signatures were taken on blank papers by the Police or that she refused for her medical examination as nothing happened with her or that she is deposing falsely.
Inspite of incisive crossexamination of PW3 - Prosecutrix, nothing material has been brought out so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. The version of 31 of 47 32 FIR No. 223/11 PS - Begum Pur this witness on the core spectrum of crime has remained intact. The testimony of PW3 - prosecutrix on careful perusal and analysis is found to be natural, clear, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had an animus against the accused Sanjay Chaudhary to falsely implicate him in the case.
At the cost of repetition, it is to be noticed that accused has not denied the factum of having sexual relations with the prosecutrix when he suggested to PW3 - prosecutrix during her crossexamination that she had sexual relations with the accused of her own free will without any promise of marriage, which she negated.
The testimony of PW3 - Prosecutrix is also found to be corroborated by the medical evidence as discussed hereinbefore. The testimony of PW3 - Prosecutrix is also found to be in consonance with her statement made to the Police and the complaint Ex. PW2/A made by PW2 - Smt. Hem Lata, her mother as well as her statement recorded u/s 164 Cr.P.C. Ex. PW14/A. 32 of 47 33 FIR No. 223/11 PS - Begum Pur The testimony of PW3 - Prosecutrix is also found to be corroborated by PW2 - Hemlata, her mother, to whom prosecutrix disclosed the facts relating to the crime shortly after the incident at the first available opportunity being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
PW2 - Hemlata in her examinationinchief has deposed that : "I am residing at above mentioned address with my family and working in a factory. I have three sons and one daughter i.e. the prosecutrix. On the 3rd day of the month, I do not remember the month, in the year, 2011, I had gone for my duty. The boy named Sanjay (witness has pointed out at accused, present in the Court today) took away my daughter, aged about 22 years. When I returned back for home, I came to know about missing of my daughter. I kept searching for my daughter but when I could not trace her out, I went to Police Station and filed my complaint after about two days.
At this stage, witness has identified her signatures at point 'A' on the complaint and the statement is now exhibited as Ex. PW2/A. After about four months my daughter returned back and I took her to PS. Recovery memo regarding recovery of my daughter was prepared by the Police and the same is Ex. PW2/B which bears my signatures at point 'A'. After about 2/3 days from returning back of my daughter, accused was also arrested from Bhajanpura in my presence vide arrest memo Ex.
33 of 47 34 FIR No. 223/11 PS - Begum Pur PW2/C. When I brought my daughter to PS, Police took my daughter to the Hospital for her medical examination but my daughter refused to get her internal examination conducted."
During crossexamination by the Learned Addl. PP for the State PW2 - Hemlata deposed as under : "It is correct that I had stated the age of my daughter in my statement Ex. PW2/A, to the Police. It is correct that my daughter had went missing on 04/09/2011. It is correct that statement of my daughter was also recorded by the Ld. MM."
From the aforesaid narration of PW2 - Hemlata, it is clear that the she is residing at above mentioned address with her family and working in a factory. She is having three sons and one daughter i.e. the prosecutrix. On the 3rd day of the month, she does not remember the month, in the year, 2011, she had gone for her duty. The boy named Sanjay took away her daughter, aged about 22 years. When she returned back for home, she came to know about missing of her daughter. She kept searching for her daughter but when she could not trace her (PW3 Prosecutrix) out, she went to Police Station and filed her complaint after 34 of 47 35 FIR No. 223/11 PS - Begum Pur about two days. She also identified her signatures at point 'A' on the complaint and the statement is now exhibited as Ex. PW2/A. After about four months her daughter returned back and she took her (PW3 Prosecutrix) to PS. Recovery memo regarding recovery of her daughter was prepared by the Police and the same is Ex. PW2/B which bears her signatures at point 'A'. After about 2/3 days from returning back of her daughter, accused was also arrested from Bhajanpura in her presence vide arrest memo Ex. PW2/C. When she brought her daughter to PS, Police took her daughter to the Hospital for her (PW3 - Prosecutrix) medical examination but her daughter refused to get her internal examination conducted.
During her crossexamination by Learned Addl. PP she (PW2 - Hemlata) admitted it to be correct that she had stated the age of her daughter in her statement Ex. PW2/A, to the Police and that her daughter had went missing on 04/09/2011 and that statement of her daughter was also recorded by the Learned MM.
During her crossexamination PW2 - Hemlata has negated the suggestions that accused had been falsely implicated in the present 35 of 47 36 FIR No. 223/11 PS - Begum Pur case or that she is deposing falsely.
Inspite of incisive crossexamination of PW2 - Hemlata, nothing material has been brought out so as to impeach her creditworthiness. She has withstood the rigors of crossexamination without being shaken. Her testimony on careful perusal and analysis is found to be natural, cogent, reliable and having a ring of truth. There is nothing in her statement to suggest that she had any animus against the accused Sanjay Chaudhary to falsely implicate him in the case.
17. While analysing the testimony of PW3 - Prosecutrix and PW2 - Hemlata, mother of the prosecutrix as discussed hereinabove inspite of incisive crossexamination of PW3 - Prosecutrix and PW2 - Hemlata nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestion by the defence to PW3 Prosecutrix that accused was also working as a salesman for the said contractor or that she had asked accused to open a cosmetic shop for her after the marriage vol. it is the accused who had told her that he shall open a cosmetic shop for her 36 of 47 37 FIR No. 223/11 PS - Begum Pur after disposing off his property after the marriage or that the sister of accused asked her to go back or that she did not leave the house of sister of accused vol. the sister of accused told/assured that she will get her (prosecutrix) married with accused or that her mother was aware of her love affair with the accused or that she is refusing to marry accused now under influence of her mother vol. she does not want to marry him as she does not trust him or that she did not return back home as her family members were against the accused or that at that time she used to cook food for accused or that the accused never promised to marry her or that she went with him of her own free will and accord or that she had sexual relations with the accused of her own free will without any promise of marriage or that she did not give her statement anywhere or that her signatures were taken on blank papers by the Police or that she refused for her medical examination as nothing happened with her or that she is deposing falsely and the suggestions to PW2 - Hemlata that accused had been falsely implicated in the present case or that she is deposing falsely, were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion 37 of 47 38 FIR No. 223/11 PS - Begum Pur that the accused has been falsely implicated because of animosity.
18. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
38 of 47 39 FIR No. 223/11 PS - Begum Pur In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found:
"Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW3 - Prosecutrix in the light of medical evidence, gynaecological examination from portion 'X' to 'XC' Ex. PW7/A on the MLC Ex. PW12/A of the prosecutrix, and MLC of accused Sanjay Chaudhary Ex. PW8/A, as discussed herein before, the act of sexual intercourse activity by complete penetration of penis with emission of semen or by partial penetration of the penis with emission of semen, within labia majora or the vulva or pudenda stands 39 of 47 40 FIR No. 223/11 PS - Begum Pur proved consequent upon which pregnancy occurred.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by the accused Sanjay Chaudhary with PW3 - Prosecutrix without her consent whereupon PW3 - prosecutrix became pregnant.
19. Learned Counsel for the accused submitted that prosecutrix was working in factory at Uttam Nagar, Delhi her mother and the prosecutrix wanted the marriage with the accused but the marriage was not solemnized between prosecutrix and accused because accused promised to the prosecutrix that he would sold his village property and will open a new cosmetic shop but neither the accused sold his village property nor he opened the shop of cosmetic due to which both i.e. prosecutrix and accused could not solemnize their marriage.
Learned Counsel for accused further submitted that before the incident prosecutrix (name withheld) has gone two or three times at the native place of accused with her friend Madhuri and accused Sanjay Chaudhary and they had stayed there about 810 days for performing the Tarvi of the father of the accused.
40 of 47 41 FIR No. 223/11 PS - Begum Pur Learned Counsel for accused further submitted that the accused never ever promised to the prosecutrix for marriage and they were meeting with each other as a friend and were also doing work on the same place at Mobile Charging Factory, Uttam Nagar, Delhi.
Learned Counsel for accused further submitted that on the trial of the case the prosecutrix has been coming to the Court on every hearing for meeting with the accused she has been going to Tihar Jail for meeting with the accused, and when the Police officials asked the prosecutrix about her relation with the accused then she told them that she is wife of the accused.
I have carefully perused and analysed the evidence on record. On close scrutiny of the pleas so raised by the Learned Counsel for the accused it appears that he is blowing hot and cold in the same breath and the same are found to be self contradictory. In one breath it is submitted that prosecutrix and her mother wanted the marriage with the accused but the marriage was not solemnized between prosecutrix and accused because accused promised to the prosecutrix that he would sold his village property and will open a new cosmetic shop but neither the 41 of 47 42 FIR No. 223/11 PS - Begum Pur accused sold his village property nor he opened the shop of cosmetic due to which both i.e. prosecutrix and accused could not solemnize their marriage, while in another breath it is submitted that accused never ever promised to the prosecutrix for marriage and still in another breath it is submitted that in Tihar Jail when prosecutrix went for meeting the accused, she told the Police officials about her relation with the accused as wife of the accused.
It has not been explained by the Learned Counsel for the accused as to what benefit he intends to reap by raising such self contradictory pleas.
The testimony of PW3 - prosecutrix has been discussed in detail hereinabove. Her testimony on careful perusal and analysis is found to be natural, clear, cogent, convincing and trustworthy. At the cost of repetition, PW3 - prosecutrix in her examinationinchief has specifically deposed that : "Accused started residing at the house of his sister at Bhajjan Pura and we stayed there for 4/5 days after which he took me to his native village at Mujjfar Pur where we stayed for two days. During our stay at the house of his sister, accused had established "Galat Sambandh" with me. He did so again when we were staying at village. Court Question : What do you mean by "Galat Sambandh"?
42 of 47 43 FIR No. 223/11 PS - Begum Pur Ans. : Accused had sexual relations with me like a man and wife.
Accused had promised to marry me but he did not do so. I was four months pregnant when I came back to my mother. Accused brought me to Delhi from Mujjafarpur (Bihar) and left me in Uttam Nagar while telling me to go to the house of my friend."
"I was four months pregnant when I returned to my mother. One day I was going to fetch water and I slipped and fell. I took medicine for my injury but in the process, I had an abortion. Accused Sanjay was arrested by the Police from Bhajjan Pura at my instance. At that time, I had asked accused for marriage but he refused to even recognize me."
"The accused did physical relations with me without my consent. I had told him that since our marriage had not been done till that time so I refused to the accused for the abovesaid act. Since accused promised me that he would marry me, I agreed to have physical relations with him."
At the cost of repetition, it is to be noticed that accused has not denied the factum of having sexual relations with the prosecutrix when he suggested to PW3 - prosecutrix during her crossexamination that she had sexual relations with the accused of her own free will without any promise of marriage, which she negated.
43 of 47 44 FIR No. 223/11 PS - Begum Pur In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
20. Learned Counsel for accused submitted that on 21/09/2012, prosecutrix recorded her statement before the Court of Ms. Illa Rawat, Learned ASJ, Rohini, Delhi which is totally false because the mother of the prosecutrix had directed the prosecutrix to give the false statement against the accused and also mother of the prosecutrix told that if "you not given the statement against the accused then I will kill you."
I have carefully perused and analysed the evidence on record.
At the outset, no basis for raising the said plea has been explained by the Learned Counsel for the accused. Perusal of record shows that on 21/09/2012 PW3 - prosecutrix was examinedinchief at length and was crossexamined at length before the Learned Predecessor Court. There is neither in her entire lengthy testimony nor anything on the record to indicate that on 21/09/2012, on the date of recording of her examination she was making the statement under the force and pressure 44 of 47 45 FIR No. 223/11 PS - Begum Pur of her mother.
It appears that such baseless plea adversely affecting the interest of justice and the sanctity of the Criminal Justice System has been raised by the accused in order to save his skin from the clutches of law.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
21. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 04/09/2011 at about 2:30 a.m. from C - 1/48, Naveen Vihar, Rajeev Nagar Extn. Begum Pur, Delhi, accused Sanjay Chaudhary kidnapped PW3 prosecutrix D/o Sh. Rohtash Vikal, a minor aged about 12 years (to be exact 11 years, 05 months and 19 days), out of the keeping of her lawful guardian, her mother PW2 Smt. Hem Lata without the consent of such guardian and he kidnapped the prosecutrix, with intent to cause her to be secretly and wrongfully confined and after kidnapping the prosecutrix, took her to his sister's house at Bhajan Pura, Delhi and then to Bihar, and kept her there with intent to force her or seduce her to have 45 of 47 46 FIR No. 223/11 PS - Begum Pur illicit intercourse with him and at the above places he committed rape upon her (prosecutrix), without her consent and against her wishes and he also committed rape upon the prosecutrix on the promise that he shall marry her, despite knowing that the promise of marriage was merely a hoax and being conscious of the fact that, Had he not promised to marry the victim/PW3 - prosecutrix, she would have never allowed him the physical intimacy with her and further the consent of PW3 - prosecutrix for cohabitation/sexual intercourse was obtained by the accused Sanjay Chaudhary under a misconception of fact by deceitfully causing her to believe that he shall marry her while the accused committing the sexual intercourse upon the prosecutrix knew that the consent was given by PW3 - prosecutrix in consequence of such misconception, whereupon made PW3 - prosecutrix pregnant.
I accordingly hold accused Sanjay Chaudhary guilty for the offences punishable u/s 363/365/366/376 IPC and convict him thereunder.
22. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Sanjay Chaudhary in the 46 of 47 47 FIR No. 223/11 PS - Begum Pur commission of the offences u/s 363/365/366/376 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Sanjay Chaudhary beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Sanjay Chaudhary guilty for the offences punishable u/s 363/365/366/376 IPC and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 19th Day of July, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 47 of 47