Delhi District Court
Sc No: 57964/16 State vs . Sushil Kumar & Ors. on 27 April, 2017
SC No: 57964/16 State Vs. Sushil Kumar & Ors.
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 57964/16
FIR No. 32/12
Police Station K.N.K. Marg
Under Section 363/366/376/511/368/34
IPC
State
Versus
1) Sushil Kumar
S/o Sh. Sudesh Kumar
R/o H.No. 15, Hari Firi Colony,
Sandesh Nagar, Hardiwar, U.K.
2) Pooja
D/o Sh. Pankaj Sharma
R/o C-25, Sharda Nagar, Jwala Pur,
Hardiwar, U.K.
3) Simranjeet Singh
S/o Sh. Ghyaan Singh
R/o T-85, Shivalik Nagar,
PS. Rani Pur BHEL, Hardiwar, U.K. ......Accused persons
Judgment 1 of 23
SC No: 57964/16 State Vs. Sushil Kumar & Ors.
Date of institution 25.07.2013
Judgment reserved on 12.04.2017
Judgment Pronounced on 27.04.2017
Decision Acquitted
JUDGMENT
1. FIR in question was registered on 21.01.2012 u/s. 363 IPC on the complaint of father of prosecutrix "K" aged about 17 ½ years wherein complainant alleged that on 03.12.2011 at about 8:00 AM, prosecutrix went from home by telling him that she is going for a school picnic but thereafter she did not come back. On 07.12.2011, one of complainant's relative informed him that prosecutrix was in T Block, Shivalik Nagar, Haridwar. Then complainant went to Haridwar and brought his daughter back on 16.12.2011 but he did not inform this fact to police due to his family respect. On 20.12.2011, prosecutrix again went from her house with four pairs of her clothes and he suspected the role of some unknown person in enticing his daughter and hence, he lodged the present complaint.
Judgment 2 of 23
SC No: 57964/16 State Vs. Sushil Kumar & Ors.
2. Upon this complaint, efforts were made to search the prosecutrix through electronic and print media. Photographs of prosecutrix were uploaded on Zip Net but no clue was found. On 07.03.2012, complainant produced prosecutrix in Police Station and her statement was recorded. Prosecutrix was got medically examined and was produced before CWC. Statement of prosecutrix was also got recorded u/s. 164 Cr.P.C. In view of allegations made by prosecutrix against accused persons Sushil Kumar, Pooja and Simranjeet Singh, were arrested.
3. Accused persons were charge-sheeted. Charge for the offence punishable under Section 363 read with 109 IPC, 366/376/511 & 368/34 IPC was framed against accused Simranjeet Singh. Charge for offence punishable under Section 363/368/34 IPC was framed against accused Pooja. Charge for offence punishable under Section 368/34 IPC was framed against accused Sushil Kumar. Accused persons pleaded not guilty and claimed trial.
Judgment 3 of 23
SC No: 57964/16 State Vs. Sushil Kumar & Ors.
4. Prosecution has examined 11 witnesses.
PW Name of witness Nature of witness Documents proved 1 Prosecutrix Prosecutrix Proved statement recorded U/s.164 Cr.P.C as Ex. PW1/A and identified vehicle in question as Ex. P-1.
2 B Father of Proved missing complaint as
prosecutrix Ex. PW2/A.
3 HC Surender Pal Duty Officer Proved FIR & his
endorsement on rukka as
Ex. PW3/A & B.
4 Dr. Vinita Gupta Doctor Medical examination of
prosecutrix vide MLC
Ex.PW4/A.
5 ASI Sajni Police Got prosecutrix medically
examined, got her statement
recorded U/s. 164 Cr. P.C,
arrest and personal search of
accused Simranjeet vide
memo Ex. PW 5/C & D, his
disclosure statement as
Ex. PW5/E.
6 Sh. Manish Ld MM Recorded statement of
Khurana prosecutrix U/s 164 Cr.P.C as
Ex. PW1/A.
7 Dr. Vijay Doctor Proved medical examination
Dhankar of accused Simranjeet Singh
vide MLC Ex. PW7/A.
8 SI Arun Dagar Investigating Recorded statement of
Officer complainant as Ex PW2/A and
prepared rukka as Ex. PW8/A.
Judgment 4 of 23
SC No: 57964/16 State Vs. Sushil Kumar & Ors.
9 Pawan Singh Nodal Officer, Proved CAF of mobile
MTNL number 9540155291 of
Yogesh Kumar as Ex. PW9/A
and of mobile number
8449717188 of Sudesh
Kumar as Ex. PW9/B.
10 Vinod Kumar Nodal Officer, Proved CDR of mobile
MTNL number 9013446265 of
Pankaj Khanna as per CAF as
Ex. PW10/A, its CDR as
Ex. PW10/B and certificate
u/s. 65B of I.E. Act as
Ex. PW10/C.
11 SI Suresh Chand Investigating Proved arrest of accused
Officer Sushil Kumar vide memo
Ex. PW11/A and arrest of
accused Pooja vide memo
Ex. PW11/B.
5. On conclusion of prosecution evidence, statement of accused Simranjeet Singh was recorded u/s 313 Cr.P.C. He stated that prosecutrix herself left her home as she was having an affair with co-accused Sushil but family of prosecutrix wanted to marry prosecutrix with him. Accused Simranjeet stated that when he refused to marry prosecutrix because of her affair with accused Sushil, he was falsely implicated. Accused stated that he is not acquainted either with accused Pooja or Sushil.
Judgment 5 of 23
SC No: 57964/16 State Vs. Sushil Kumar & Ors.
6. Accused Sushil Kumar in his statement recorded U/s. 313 Cr. P.C stated that prosecutrix is his legally wedded wife and she is residing with him happily.
7. Accused Pooja in her statement recorded U/s. 313 Cr.P.C stated that accused Sushil Kumar requested her in-laws to let reside prosecutrix at her home as accused Sushil Kumar introduced her as his relative and they permitted prosecutrix to reside with them. At that time, Sushil Kumar was her employer. Pooja further stated that she has been falsely implicated as prosecutrix doesn't like the fact that she works with Sushil.
8. It has been submitted on behalf of the accused persons that prosecutrix voluntarily left her home on 03.12.2011 and none of the accused persons were having any role in either enticing or kidnapping her from her house. Additionally, it has been submitted on behalf of accused Simranjeet that he has never Judgment 6 of 23 SC No: 57964/16 State Vs. Sushil Kumar & Ors.
sexually assaulted the prosecutrix and there is no evidence on record to substantiate the allegations made against him by the prosecutrix.
9. On the other hand, Ld. Addl. PP for State submits that prosecutrix has duly supported the prosecution case and in view of her testimony which is trustworthy and reliable, accused persons are liable to be convicted in the present case.
10. I have heard the rival contentions and have gone through the material on record.
11. Age of prosecutrix: Prosecution has relied upon the CBSE Certificate of prosecutrix which has been filed along with charge-sheet as per which her date of birth is 19.04.1994. Defence has not disputed the age of prosecutrix in any manner. As such, on the date of incident (on 03.12.2011), prosecutrix was aged about 17 years 7 months old.
Judgment 7 of 23
SC No: 57964/16 State Vs. Sushil Kumar & Ors.
12. Prosecutrix alleged that she left her home initially after being enticed by accused Simranjeet and then by accused Pooja. Let us examine what she has deposed in respect of allegations made by her.
a) Allegations against accused Simranjeet Singh of Kidnapping prosecutrix:
"...... On 03.12.2011, Simran made me telephonic call and called me at Haridwar. I had talked with him many times earlier as well. He said that I must not tell this to my parents that he was calling me at Haridwar. On the same day, I went to Haridwar by bus. I wanted to inform this to my parents, but he persuaded me not to do this stating that, your parents were very strict and they would kill me, if I did so. I asked him what to do. He told me not to return home. He promised that he would get me settled in Haridwar and he would also arrange an accommodation for me...."
(Examination-in-chief) Judgment 8 of 23 SC No: 57964/16 State Vs. Sushil Kumar & Ors.
"....... On 03.12.2011, when I was 17 years old, I left my house for a School picnic. I was in regular contact with the accused on my mobile. I told the accused that I had quarrel with my parents over the issue of drug addiction of the accused. Then the accused suggested me that I should come to Haridwar as at that accused was in Haridwar. Accused was resident of Haridwar. Then I left for Haridwar by a bus which I boarded from ISBT. I was in School uniform. Accused Simran came at bus stand Haridwar and there when I wanted to call my parents, he told me not to do so. So, I didn't informed them.
(Cross-examination )
13. It is evident that accused Simranjeet did not come to Delhi to take prosecutrix along with him to Haridwar. Prosecutrix deposed that she went alone to Haridwar by bus and she did not inform her parents that she was going there. Prosecutrix deposed that accused promised her that he would get her settled in Haridwar and would arrange an accommodation for her. Mere fact that the prosecutrix went alone to Haridwar without informing her parents shows her intent to leave her house.
Judgment 9 of 23
SC No: 57964/16 State Vs. Sushil Kumar & Ors.
14. It is also in the testimony of prosecutrix that accused Simranjeet introduced her to co-accused Sushil & Pooja. On 15.12.2011, when accused Pooja went to her office then prosecutrix came out in order to make a phone call to her father where prosecutrix met her father's friend who recognized her and took her to PS Ranipur, Haridwar and informed her father. On the same day, her father came to Haridwar and took her back.
15. Above stated testimony of prosecutrix demonstrates that from 03.12.2011 to 15.12.2011 she remained in Haridwar but never made an attempt to inform her father or to leave the company of accused persons. Least to say, even after reaching Delhi prosecutrix made no attempt to lodge a complaint against accused Simranjeet alleging her enticement or kidnapping by him. Facts of the case shows that element of 'taking away' or 'enticement' by accused Simranjeet is found to be lacking. In view of the material on record, it appears that prosecutrix was willing and consenting party and it seems that everything has happened Judgment 10 of 23 SC No: 57964/16 State Vs. Sushil Kumar & Ors.
with her will. In these circumstances, factum of kidnapping of prosecutrix by accused Simranjeet does not stands proved.
b) Allegations against accused Pooja of Kidnapping prosecutrix:
" ..... On 19.12.2011, Pooja inquired from me about the behaviour of my family towards me. I conveyed that the behaviour of my family was not at all good towards me. Pooja told me not to worry and stated that she was coming to Delhi next day. She asked me to meet her at Manav Chowk at 5pm on the next day i.e. 20.12.2011. There was no member of the family at home, I went to meet at the said time, at the said place..... " (Examination-in-chief) On 16th till 19th December 2011 Pooja used to call at my father's mobile and she used to ask my father to let me talk to her. Pooja used to ask me that when I will come back. ..........
On 20.12.2011, She called me at Manav Chowk at 5 pm. Nobody was present at my home. I went there and she took me to an unknown place in Delhi and I stayed with her for next 10 days. On 31.12.2011, I was again taken to Haridwar. My father did not lodge any complaint of my missing on 20.12.2011 but he reported the matter to police on 21.11.2011...........
(Cross-examination )
Judgment 11 of 23
SC No: 57964/16 State Vs. Sushil Kumar & Ors.
16. It is evident from the testimony of prosecutrix that she conveyed to accused Pooja that the behavior of her family was not at all good towards her. Prosecutrix met Pooja at Manav Chowk on 20.12.2011. This again goes to show that prosecutrix went alone to meet Pooja without informing her parents which indicates her intent to leave her house. Moreover, in missing complaint lodged by father of prosecutrix Ex PW2/A it is mentioned by him that prosecutrix left her home with four pair of clothing. This indicates intention of prosecutrix to leave her house.
17. Since, 20.11.2011, prosecutrix remained with Pooja in Delhi till 31.12.2011 but no effort was made by prosecutrix either to return to her home or inform her parents about her whereabouts. It is evident that there was no pressure exerted by accused Pooja on prosecutrix to leave her house rather prosecutrix herself conveyed to Pooja that her parents were not behaving well with her.
Judgment 12 of 23
SC No: 57964/16 State Vs. Sushil Kumar & Ors.
18. It has been held in para 8 of the judgment 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 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 traveled 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. ...."
19. In this regard, it would relevant to refer to the case titled as "S. Varadarajan Vs. State of Madras (reported as AIR 1965 SC 942)", where in 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 Judgment 13 of 23 SC No: 57964/16 State Vs. Sushil Kumar & Ors.
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 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."
20. Element of 'taking away' or 'enticement' of prosecutrix is lacking in present case. Prosecutrix deposed that on 03.12.2011 she went to Haridwar of her own and again on 20.11.2012 she left her house to join company of accused Pooja. Prosecutrix was about 17 years & 7 months old at the time of incident. She was having mature understanding. Her conduct shows that she traveled alone from Delhi to Haridwar and she was even ready to get settle in Haridwar in separate accommodation. As mentioned in aforesaid authoritative judgments of Hon'ble Apex Court, in present case also it is clear that prosecutrix left her father's protection knowing and having capacity to know the full import of what she is doing. Thus, neither accused Simranjeet nor accused Pooja can be held guilty for kidnapping prosecutrix.
Judgment 14 of 23
SC No: 57964/16 State Vs. Sushil Kumar & Ors.
21. Allegations of confining prosecutrix: All three accused persons are also facing trial that they confined prosecutrix. Let us examine what prosecutrix has deposed in respect of her confinement by accused persons.
" ..... She took me to Haridwar on 31.12.2011 at her house. She stated that I had to go Lucknow for the job and my salary would be Rs.25,000/- to Rs.30,000/- per month, but I refused because I was doubting that who would give me such salary without having my documents. When I refused, she locked me in a room. For some days, her friend Anju also lived with me in that room. Pooja used to come in that room only to give food etc. I wanted to talk to her but she never gave any response and refused. I noticed that Pooja was talking with Simran on phone a number of times. I requested Pooja to allow me talk to Simran. When I spoke to Simran, he assured me that he would come to meet me and asked me to do till that time as Pooja was saying. He disconnected the phone and did not listen to me fully. I wanted to tell him about the behaviour of Pooja. ..... "
(Examination-in-chief) Pooja's house comprises three rooms. One room is occupied by parents in law and I do not know about the occupation of other two rooms. For all those days, I remained in the house of Pooja which is built over ground floor. Pooja's Judgment 15 of 23 SC No: 57964/16 State Vs. Sushil Kumar & Ors.
husband used to come to house but he didn't come to the room in which I was kept. Pooja was residing at C-25, Sharda Nagar, Jwalapur, Haridwar. Pooja is residing in thickly populated colony and she introduced me to her family as a friend. For initial 10 days, she kept me in her house as friend. But later on for 2 ½ months she did not allow me to speak loudly and to interact with her family members. Pooja is mother of 6-7 year old boy.
Pooja during that 2 ½ months was regularly going to office and there used to nobody at house. She used to go to her work at 08:30 am and came back at 07:30 pm. At the time, she used to go to her office, her father in law and husband used to go to their job and her mother in law used to go somewhere.
I do not know at what time son of Pooja used to go to School but he used to come back at 01:30pm. At 01:30 pm accused Pooja used to leave her son with me in the house. Till 07:30 pm, only myself and son of Pooja used to remain in house. I do not know what the son of Pooja used to eat between 01:30 till 07:30 pm. All I can say is that she used to give lunch to both of us and again she used to go to her office. Since my room was lock as such I never tried to go outside the house. I never tried to break open the lock. I never got an opportunity to escape from there in all those 2 ½ months. It is correct that from Delhi I traveled alone to Haridwar but could not come outside from said room by breaking open the lock inspite of knowing that nobody is at house.
Judgment 16 of 23
SC No: 57964/16 State Vs. Sushil Kumar & Ors.
It is correct that as of today, I am residing with Sushil and I am having a girl baby of 3 months out my relationship with accused Sushil.
( cross-examination)
22. In her testimony prosecutrix narrates that she was confined by accused Simranjeet and Pooja from 31.12.2011 till 06.03.2012. On 06.03.2012 when she got an opportunity, she called accused Sushil and narrated the incident to him. She also informed her father. Accused Sushil then on the asking of father of prosecutrix brought her to Delhi.
23. Prosecutrix though alleged that she was confined for about 2½ months by accused Pooja but during her cross- examination prosecutrix admitted that Pooja during that period was regularly going to office from 08:30 am to 07:30 pm and in between she used to be remain alone. Prosecutrix deposed that Pooja's father-in-law and husband also used to go to their respective jobs and her mother-in-law used to go somewhere else.
Judgment 17 of 23
SC No: 57964/16 State Vs. Sushil Kumar & Ors.
24. Prosecutrix admitted that she never tried to break open lock of her room. She admitted that from Delhi she traveled alone to Haridwar but could not come outside from said room by breaking open the lock in spite of knowing that nobody is at house. Prosecutrix did not depose as to what effort she made to escape from that house in which she was confined by accused Simranjeet & Pooja nor there is any explanation as to what exceptional happened on 06.03.2012 which enabled her to come out of the house and made a phone call to her father and co- accused Sushil.
25. Prosecutrix was an able bodied female and was fully aware that she was alone in the house. It is very difficult to comprehend that why prosecutrix did not make any effort to come out from confinement. Prosecutrix admits that at 01:30 pm accused Pooja used to leave her son with her in the house and till Judgment 18 of 23 SC No: 57964/16 State Vs. Sushil Kumar & Ors.
07:30 pm only prosecutrix and son of Pooja used to remain in house. If at all prosecutrix was forcibly kept by Pooja in her house then why accused Pooja would risk to keep her son in company of prosecutrix. Testimony of prosecutrix that she was kept in confinement for more than 2 ½ months simply do not appeal to senses in the light of testimony of prosecutrix as narrated above.
26. There is another aspect of the matter. Prosecutrix in her examination-in-chief deposed that after she came out house of accused Pooja, she made a call to accused Sushil and called him there. Her testimony is not in consonance with her statement Ex. PW1/A (recorded U/s 164 Cr.P.C.) wherein she stated that after Simranjeet left house of Pooja, then accused Sushil met her and with him she came back to Delhi. The fact that she called accused Sushil after coming out of the house of Pooja does not find mention in her statement Ex. PW1/A. Judgment 19 of 23 SC No: 57964/16 State Vs. Sushil Kumar & Ors.
27. Prosecutrix further admitted that she is residing with accused Sushil and has a baby out of her relationship with him. Testimony of prosecutrix indicates that she was well aware about the mobile number of accused Sushil and Sushil knew where prosecutrix was residing. The fact that prosecutrix came to Delhi in the company of accused Sushil also goes to prove that the prosecutrix was in regular contact with Sushil and despite this fact she did not lodge any complaint in Haridwar itself against her alleged illegal confinement by accused Pooja or Simranjeet. Needless to say, that prosecutrix did not level any allegation against accused Sushil of confining her. Testimony of prosecutrix in respect of her confinement does not inspire confidence in view of above stated facts and hence, no inference can be drawn that accused Pooja and Simranjeet confined her for more than two months.
Judgment 20 of 23
SC No: 57964/16 State Vs. Sushil Kumar & Ors.
28. Allegations of sexual assault by accused
Simranjeet: In her examination-in-chief prosecutrix testified that one day accused Simran came to meet her and he tried to to make physical relations with her and when she shouted and started weeping, accused went away from there. At that time Pooja was not at home and accused Simran left the house open due to which she got opportunity to come out of the said house and made a phone call to her father through the phone of some person.
29. During course of her cross-examination prosecutrix deposed as under:
One day accused Simran came at the house of Pooja and he tried to physical relations with me. I raised alarm and he went away. He didn't locked the room. I managed to escape from there. After taking mobile from passerby I called my father but the phone couldn't be connected. .......
I did not went to the PS at Haridwar along with Sushil because I was terrified. However, it is correct that I did not lodge any complaint against Pooja or Simran.
Judgment 21 of 23
SC No: 57964/16 State Vs. Sushil Kumar & Ors.
30. It is evident from the deposition of prosecutrix that she does not explain that after the alleged act of accused Simranjeet when she got an opportunity to come out then why she did not call police to help her out of her confinement or reported the incident of sexual assault on her by accused Simranjeet Singh.
31. Prosecutrix specifically deposed that she did not lodge any complaint against Pooja or Simranjeet at Haridwar. If any assault was done on her then obvious reaction for the prosecutrix was to report the matter at once but she did not do so.
Moreover, prosecutrix was medically examined on 07.03.2012 vide MLC Ex PW4/A wherein it is mentioned that there is no history of physical or sexual assault as told by prosecutrix herself. Prosecutrix mentioned that nobody committed any forcible wrong act with her as such she does not want her internal medical examination. Therefore, testimony of prosecutrix in respect of her sexual assault by accused Simranjeet is not trustworthy and does not establish guilt of accused.
Judgment 22 of 23
SC No: 57964/16 State Vs. Sushil Kumar & Ors.
32. Conclusion: From the aforesaid discussions, it is evident that the prosecution has failed to prove charges against the accused persons. Accordingly, accused persons stands acquitted. Bail bond of the accused persons stands canceled. Their surety stands discharged. Accused persons are directed to furnish a personal bond in sum of Rs. 10,000/- each under provisions of Section 437-A Cr.P.C with surety in the like amount. File be consigned to record room.
Announced in the open court on 27th day of April, 2017.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
Judgment 23 of 23