Delhi District Court
State vs :- 1- Nanku, on 20 March, 2008
1
IN THE COURT OF SH. BHARAT PARASHAR:ASJ:FTC:ROHINI:DELHI
S.C.NO.97/06
STATE VERSUS:- 1- NANKU,
S/O SH. RUDHA,
R/O C-777, JAHANGIR PURI,
DELHI.
2- DEEPA,
D/O SH. NANKU,
R/O C-777, JAHANGIR PURI,
DELHI.
3- GAURAV,
S/O SH. KARTAR SINGH,
R/O D-1536, JAHANGIR PURI,
DELHI.
4- SANJAY,
S/O SH. VINOD KUMAR,
R/O JHUGGI-100/1, CD PARK,
JAHANGIR PURI,
DELHI.
5- LEELU,
S/O SH. GAJENDER,
R/O B-3A MARKET,
JAHANGIR PURI,
DELHI.
6- AMRIT LAL,
D/O SH. KERADDIN,
R/O A-17, BABA FARID PURI,
WEST PATEL NAGAR,
DELHI.
7- BHUPINDER @ JEETU,
D/O SH. NANKU,
R/O C-777, JAHANGIR PURI,
DELHI.
2
8- MAYA,
W/O SH. OM PARKASH,
R/O B2/284, NAND NAGRI,
DELHI.
9- PUSHPA,
W/O SH. AMRIT LAL,
R/O A-17, BABA FARID PURI,
PATEL NAGAR,
DELHI.
10- MANJU,
D/O SH. SHANKAR LAL,
R/O C-777, JAHANGIR PURI,
DELHI.
FIR NO.535/05
U/S 376(2)(g)/506/363/366/328/34 IPC.
PS JAHANGIR PURI.
JUDGMENT
Briefly stated the case of the prosecution as unfolded by the report U/S 173 Cr.PC is as under :
On 25-7-05 one Smt. Sushila, wife of Rajinder lodged a complaint at PS Jahangir Puri regarding missing of her daughter "A", aged about 13 years (name of the prosecutrix has been concealed as it is a case U/S 376 IPC). She also expressed her suspicion upon one Jeetu, son of Nanku stating that he might have kidnapped her away. Accordingly, on the basis of her statement, a case for the offence U/S 363 IPC was registered at PS Jahangir Puri and ASI Jagbir Singh took over the investigation of the matter. While he was making efforts to trace out the missing girl and accused Jeetu, who also was found missing from his house 3 that the complainant produced some marriage documents of her daughter with said Jeetu along with a photograph stating that she found them lying at her house. The said documents and photographs were taken into possession by the IO. Thereafter, on 5-8-2005 the said girl was recovered after she was found present near Tis Hazari Courts. She was accordingly got medically examined at BJRM Hospital. Her bone age x- ray was also got conducted and the custody of the girl was handed over to her parents. Thereafter, on 6-8-05 accused Nanku, the father of accused Jeetu, Manju & Pushpa, who were the two sisters of Jeetu and Amrit Lal, the husband of Pushpa were all arrested from their house as they all were found to be involved in the kidnapping of the prosecutrix as per the statement of prosecutrix recorded by the IO. On 9-8-05, the statement U/S 164 Cr.PC of the prosecutrix was also got recorded. The IO also collected the birth certificate of the prosecutrix. The doctors, who had medically examined the prosecutrix had collected her undergarments and vaginal swab and same were also taken into possession by the IO. Thereafter, on 31-8-2005 accused Bhupinder @ Jeetu was also arrested from his house and his disclosure statement was recorded. Accused Bhupinder @ Jeetu was also got medically examined and a blood sample was also collected by the doctors. However, four other co-accused persons, namely, Leelu, Sanjay, Gaurav and Deepa, who also were found involved in the incident as per the statement of the 4 prosecutrix in kidnapping her away and thereafter committing rape upon her by them all were found to be missing.
The various exhibits were thereafter sent to FSL for examination and upon completion of necessary further investigation, challan was prepared and was filed in the court as against accused persons till date arrested.
Subsequently, the other four absconding accused persons, namely, Leelu, Sanjay, Gaurav and Deepa also came to be arrested and their supplementary charge sheets were also filed by the police.
Upon committal of the main charge sheet to the court of sessions besides the supplementary charge sheets subsequently filed charge for the offence U/S 376 (2) (g) IPC was framed against accused Bhupinder @ Jeetu, Leelu, Gaurav and Sanjay and separate charges for the offence U/S 363/366/328/34 IPC was framed against accused Nanku, Amrit Lal, Pushpa, Manju, Maya, Deepa and Bhupinder @ Jeetu. A separate charge for the offence U/S 506 IPC was also framed against accused Nanku. The accused persons however pleaded not guilty to all the charges so framed against them and claimed trial.
Prosecution thereafter in order to prove its case examined ten witnesses. Accused persons were thereafter examined U/S 313 Cr.PC. They however refused to lead any evidence in their defence. 5
PW1 Dr. Mamta Negi proved the MLC of prosecutrix as was prepared by Dr. Sujata, who was no longer available.
PW2 Dr. Ridip had medically examined accused Bhupinder at BJRM Hospital.
PW3 Dr. Shipra Rampal had conducted the bone age x-ray examination of the prosecutrix and she opined her age to be between 17 years to 18 years.
PW4 B. Shanker Narayan was the FSL Expert, who had examined the various exhibits in the Biologically and Serologically Lab of FSL-Rohini vide his report Ex.PW4/A and B. PW5 "A" was the prosecutrix herself. In her deposition, she reiterated the prosecution story and I shall be discussing her deposition in detail at a later stage of my judgment.
PW6 HC Kishori Lal was the duty officer, PS Jahangir Puri, who recorded FIR Ex.PW6/A. PW7 Om Prakash was the Headmaster, MCD School, Nand Nagri, D-2 First where the prosecutrix used to study till the year 2002. He proved her date of birth as recorded in the school records as 1-4-1994.
PW8 Sushila was the complainant and mother of prosecutrix. She in her deposition reiterated the prosecution story besides proving her complaint lodged with the police.6
PW9 HC Ajay Kamal was the MHC(M), PS Jahangir Puri with whom the various case property articles were deposited with by the IO.
PW10 ASI Jagbeer Singh was the IO of the case. In his deposition, he reiterated the investigation carried out by him besides proving the various documents/memos prepared by him during the course of investigation.
Accused persons in their statements u/S 313 Cr.P.C. stated the case of the prosecution to be false and the prosecution witnesses to be deposing falsely.
Accused Bhupinder however stated that the prosecutrix had left her house along with him on her own free will. He further stated that a marriage was solemnized between him and the prosecutrix with the consent of the prosecutrix as they both were in love. He also stated that his other family members have been falsely implicated in the present case.
I have heard Ld. APP as well as Ld. Counsel Sh. Naveen Gaur and Ms. Madhu Kalia for all the accused persons at length.
It was submitted by learned defence counsel that from the bare testimony of the prosecutrix, it was clearly apparent that she had left her house on her own free will and there was no element of force, pressure, inducement or enticement on the part of accused Bhupinder much less on the part of any other accused persons. It was further stated 7 that even the age of the prosecutrix was stated to be between 17 years to 18 years by PW3 Dr. Shipra Rampal, who had carried out her bone age x-ray examination. As regards the documentary proof produced qua her date of birth, it was stated that the same has not been proved as per the provisions of Indian Evidence Act and thus no reliance can be placed upon it. It was further stated that there was an inordinate delay of registration of the FIR. The mother and 'nani' of the prosecutrix were having close association with the local police officials which resulted in the registration of the present false case against the accused persons. The prosecution was thus stated to have miserably failed in proving its case against all the accused persons. All the accused persons were thus prayed to be acquitted.
On the other hand Ld. APP strongly opposed the contentions of learned defence counsel stating that the testimony of the prosecutrix herself was sufficient to bring home the guilt of the accused persons and no corroboration of any nature was required to her testimony. The prosecution was stated to have been successful in proving its case against all the accused persons. They were thus prayed to be convicted.
I have carefully perused the record.
At the outset, I may state that since the factum of prosecutrix having gone along with accused Bhupinder not only stands well proved on record from the deposition of prosecutrix herself but, even accused 8 Bhupinder himself has not disputed the same. Thus, without harping upon the said aspect of the matter any further it will be important to delineate the important issues which requires consideration of the court in order to arrive at a final conclusion as to the guilt of the accused persons, if any in the present case or not.
From the evidence led on record by the prosecution, it needs to be ascertained as to whether the prosecutrix had left her house on her own along with accused Bhupinder without there being any element of force, pressure, inducement or enticement on the part of accused Bhupinder or any of the other accused persons. In case, it is found that the prosecutrix had left her house on her own then also it needs to be ascertained as to what was her age as on the date of offence, for if she is found to be less than 16 years of age then her consent ceases to be of any consequence qua the offence of rape and in case of her age being less than 18 years then her consent becomes inconsequential qua the offence of kidnapping.
As regards the fact as to whether prosecutrix left her house of her own free will, I may state at the outset itself that from her deposition itself, it is crystal clear that she had left the house on her own free will without there being any force, pressure, inducement or enticement of any nature whatsoever on the part of any of the accused persons. 9
The prosecutrix stated that the sisters of accused Bhupinder had caught hold of her while she was going in the gali to purchase a cake of soap at about 2/2.30pm. She further stated that the said gali in which the house of her 'nani' was situated was a congested one and led to still another small gali viz mandir wali gali. She further stated that no car can even pass through the said gali and as regards the width of the gali she stated that only two cots can be put alongside each other in the gali. She further stated that during summer season, old aged persons and ladies often sits in the gali after putting their cots etc. She also stated that the said shop where she had gone to purchase a soap was situated just about 6/7 houses away from the house of her 'nani'. She also stated that a large number of people frequent the said gali. She further went on to state that the sisters of accused Bhupinder had met her just outside the said shop and where they allegedly tied her hands at the back with her chunni and gagged her mouth and took her to the main road outside. These facts in itself seems to be highly improbable. It is not only improbable but is impossible for three ladies to catch hold of a girl in the middle of a gali in such a congested locality and that too outside a shop and to thereafter tie her hands at the back and to drag her away to the main road after gagging her mouth. This fact will further appear to be improbable when during the course of my subsequent discussion, it will be seen that both the prosecutrix and Bhupinder were having liking for each 10 other and were thus having some love affair. Prosecutrix further stated that at the main road the accused persons made her to drink some water mixed with some substance and as a result she became unconscious. She further went on to state that she regained her consciousness after two days at Kanpur, UP. She also stated that at Kanpur accused Bhupinder and his other co-accused, namely, Gaurav, Leelu and Sanjay all had sexual intercourse with her after her hands were tied on a cot by them. She further stated that on the next day the accused persons got her married with accused Bhupinder in a temple in Kanpur itself. She also stated that all the accused persons used to give her beating. At a later stage of her cross examination this witness, who had all along been improving upon her earlier statements made to the police further changed her stand and stated that from the main road where the sisters of accused had handed her over to accused Bhupinder and his brother- in-law accused Amrit Lal. She was taken in a TSR to Old Delhi Railway Station. She further stated that she had regained some consciousness on the way and she thus could see that the said place was Old Delhi Railway Station. She further stated that at the station, a large number of public persons and police officials were present but, the accused persons had already purchased railway tickets. She further stated that in the compartment in which she was sitting with the accused persons, a number of other public persons were also present. She also stated that in 11 the running train she also ate "Puri" etc which were being sold over there after the said packet was shared by them all. She further stated that accused Maya even took her to the toilet and after she had responded to the call of nature then Maya went inside to respond to the call of nature. She also stated that after reaching Kanpur their tickets were checked at the exit gate. She also stated that a large number of persons were present at the said station and from where they took an auto to go to some house. She also stated that in the said house besides an aged couple and a young couple, one girl was also present. She further stated that there were two rooms in the said house with roof at the first floor and a number of shops were situated around the said house. She also had food at the said house in the night itself and she stated that all the persons along with her used to sleep on the roof in the night and certain persons from the neighbourhood also used to sleep on their respective roofs. She further stated that she used to change her clothes over there with that of the sisters of accused and she used to wash her clothes. She also stated that she used to offer help in cooking food or cleaning of the house. She further stated that during the day time she along with other persons used to watch TV etc. As regards the marriage at temple, she stated that same took place at around 1pm and she had walked down to the temple. She also stated that way of the temple garlands and sweets were purchased. She further stated that a number of other persons were also present in the 12 temple and that she changed her clothes in one room of the temple itself. She further stated that "Pooja" ceremony was carried out by the Priest over there.
As regards the return journey from Kanpur to Delhi she stated that they had come in an auto to Kanpur Station and from there they had boarded a train whose tickets were already purchased by the accused. She further stated that a number of passengers were present inside the train and that they reached Delhi in the night. At Delhi Station also she stated that their tickets were checked at the exit gate. In the night, she was taken to the house of one of the sisters of accused Bhupinder in a TSR. She further stated that on the next day morning they all had gone to Tis Hazari Courts where police officials had caught hold of him after her mother and aunty met her over there.
From the aforesaid deposition of the prosecutrix which I have tried to state briefly over here, it is crystal clear that there was no element of force, pressure, inducement or enticement on the part of any of the accused persons in taking away the prosecutrix from her house. It is also apparent that prosecutrix had left her house on her own free will and without pressure of any kind. It is also clear that the manner in which the sisters of accused persons are shown to have acted is not only improbable but rather impossible.13
In fact, at a subsequent stage of her cross examination, she also stated that she knew accused Bhupinder from prior to as he used to sell vegetables near to her house. It is thus clear that both prosecutrix and accused were having a liking for each other and they had decided to elope away together.
An important question now arises as to the age of the prosecutrix which will crucially decided the issue as to whether her consent in the matter carries in a credibility or not.
In this regard, the prosecution has examined PW7 Om Prakash, the Headmaster, MCD School, Nand Nagri, D-2 where the prosecutrix allegedly used to study. He proved a certificate allegedly given by him to the IO on the basis of the school records wherein the date of birth of the prosecutrix has been stated to be '1-4-1994'. However, this witness further stated that at the time of admission of the prosecutrix no birth certificate issued by any municipality or hospital was furnished and only an affidavit was given by the father of the prosecutrix. He further stated that he had not brought the said affidavit to the court on that day. On the other hand, we have on record the deposition of PW3 Dr. Shipra Rampal, who carried out the bone age x-ray examination of the prosecutrix on 6-8-05 and opined her age to be between 17 years to 18 years.
Thus, from the aforesaid nature of evidence, it is clear that no reliance can be placed upon the record produced by PW7 Om Prakash 14 as the very affidavit which was filed by the father of prosecutrix in the school at the time of her admission was not produced by her and moreover the scientific evidence of ossification test as proved on record by PW3 Dr. Shipra Rampal contradicts the veracity of the said claim. The prosecution in my considered opinion has thus miserably failed in proving that prosecutrix was less than 16 years of age as on the date of offence. In fact, in view of the ossification tests report wherein the doctors found the prosecutrix to be aged between 17 years to 18 years, the benefit again has to go the accused. It thus also cannot be concluded that the prosecutrix was less than 18 years of age as on the date of offence.
In view of my aforesaid discussion, it is thus crystal clear that prosecutrix, who was aged about 18 years had left her house on her own free will without there being any pressure, inducement, force or enticement on the part of any of the accused persons much less on the part of accused Bhupinder.
An important question which now arises is as to why the prosecutrix levelled allegations of rape against the friends of accused also besides roping in certain other family members of accused Bhupinder. The answer again is apparent on the face of record as it appears that these accused persons, namely, Gaurav, Sanjay and Leelu, who were the residents of same area where prosecutrix and accused Bhupinder used to reside probably have been roped in being the close associates of 15 accused Bhupinder and it is highly improbable to believe that accused Bhupinder, who intended to marry the prosecutrix will first commit gang rape with the prosecutrix in the house of her relatives and that too in the presence of his sisters. This fact when seen and analyzed in the light of the over all facts & circumstances of the case does not require any detailed discussion to be rejected. The prosecution story in this regard does not inspire confidence.
Before parting away with this judgment, I may also mention that PW8 Sushila, mother of prosecutrix admitted in her cross examination that she and her mother were dealing in the trade of illicit liquor. She admitted that on account of their said activities the local police officials regularly used to visit their house. This fact in itself besides speaking volumes about the complicity of the local police officials in the liquor trade being run in the area further raises grave shadows of doubts as to the veracity of the prosecution case. The fact that in her initial complaint itself Sushila expressed suspicion upon accused Bhupinder as regards the missing of her daughter further shows that she was very much aware that her daughter and accused Bhupinder were having some liking for each other.
As regards the other family members of accused Bhupinder, the same appears to be at the instance of her own family members of the prosecutrix. Such a behaviour on the part of prosecutrix and her family 16 members in involving as many family members of the main accused, as accused Bhupinder in the present case, is often seen in such type of cases. However, in view of the overall facts & circumstances of the case as discussed herein above prosecution story as regards the said other accused persons does not inspire confidence and thus does not require any detailed discussion qua their roles.
Be that as it may be, in view of my aforesaid discussion, I am of the considered opinion that the prosecution has miserably failed in proving its case against all the accused persons beyond shadows of all reasonable doubts.
I accordingly, giving benefit of doubt to all the accused persons, namely, (1) Nanku, (2) Deepa, (3) Gaurav, (4) Sanjay, (5) Leelu, (6) Amrit Lal, (7) Bhupinder @ Jeetu, (8) Maya, (9) Pushpa and (10) Manju, acquit them of the offence U/S 376(2)(g)/506/363/366/328/34 IPC.17
Accused Bhupinder @ Jeetu be released from JC if not required in any other case.
Bail bonds of remaining accused persons stands cancelled and their sureties stands discharged.
Documents of their sureties, if any be returned forthwith.
File be consigned to record room. ANNOUNCED IN THE OPEN COURT ON 20-3-2008.
(BHARAT PARASHAR) ADDITIONAL DISTRICT & SESSIONS JUDGE FAST TRACK COURT:ROHINI COURTS D E L H I. 18 FIR NO.535/05 PS JAHANGIR PURI.
20-3-2008 Pr. Addl. PP for the State.
Accused Bhupinder @ Jeetu is present in JC. Other accused are present on bail. Ld. Counsel Sh. Naveen Gaur is present for accused persons. Vide my separate detailed judgment dated 20-3-2008, all the accused persons, namely, Nanku, Deepa, Gaurav, Sanjay, Leelu, Amrit Lal, Bhupinder @ Jeetu, Maya, Pushpa and Manju have been acquitted of the offence U/S 376(2)(g)/506/363/366/328/34 IPC.
Accused Bhupinder @ Jeetu be released from JC if not required in any other case.
Bail bonds of remaining accused persons stands cancelled and their sureties stands discharged.
Documents of their sureties, if any be returned forthwith. File be consigned to record room. ANNOUNCED IN THE OPEN COURT ON 20-3-2008.
(BHARAT PARASHAR) ADDITIONAL DISTRICT & SESSIONS JUDGE FAST TRACK COURT:ROHINI COURTS D E L H I.