Delhi District Court
67 In State Of Tamil Nadu vs . Raju @ Nehru, 2006 10 Scc 534, It on 13 March, 2012
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDITIONAL SESSIONS JUDGE (NORTH) : DELHI
S.C. No. 44/11
ID No. 02401R0345882010
State
Vs.
1 Simpy
W/o Surender Singh
R/o C-94Z, DDA Flats,
Jahangirpuri, Delhi
2 Daljeet
S/o Baru Singh
R/o Village Ludhana
Distt. Jind, Haryana
3 Ranjana
W/o Raj Kumar
R/o C-92X, DDA Flats,
Jahangirpuri, Delhi
4 Shakila
W/o Roz Ali
R/o 68/591, Aruna Nagar
Majnu Ka Tila, Timarpur
Delhi
Sessions Case No. 44/11 Page 1/35
2
5 Ved Pal
S/o Dilbagh Singh
R/o Village Ludhana
Distt. Jind
Haryana
FIR No. 97/10
PS Timarpur
U/S 365/366/368/370/376/493/498/120B IPC
Date of Institution: 13.07.10
Date of reserving for judgment: 23.02.12 and 05.03.12
Date of pronouncement: 13.03.12
JUDGMENT
In the present case, charge has been framed against accused Vedpal in respect of offences U/S 370, 368, 342 and 376 IPC. The allegation in the charge is that, two-three months, prior to 18.04.10, he [accused Vedpal] alongwith accused Daljit bought the prosecutrix for a sum of Rs. 1,60,000/- from one Syam Sunder for slavery. It is also alleged that he wrongfully confined the prosecutrix at his house at Village Ludhana, Distt. Jind, Haryana as a slave. It has been further alleged that on or before 20.04.10 at the abovesaid house, after wrongfully confining the prosecutrix, he committed rape upon her, against her will.
2 A separate charge has been framed against accused Simpy, Ranjana, Vedpal, Daljit and Shakila alias Munni in respect of offence Sessions Case No. 44/11 Page 2/35 3 U/S 120B IPC. The allegation against the accused persons is that two- three months prior to 18.04.10, they all, alongwith co-accused Shyam Sunder, Shabnam, Bhanu and Mehtab [ not arrested] were the party to a criminal conspiracy to commit the offences punishable U/S 365,366,367,368,370 and 376 IPC, in respect of the prosecutrix. 3 A separate charge has been framed against accused Simpy, Ranjana and Shakila alias Munni in respect of offences U/S 365, 366, 367 and 370 r/w Section 34 IPC. The allegations against the accused persons is that, two-three months prior to 18.04.10, they in furtherance of their common intention alongwith Shabnam [absconding] abducted the prosecutrix from Flood Office, Yamuna Pushta, Jagatpur Village with an intent to confine her secretly and wrongfully. 4 It has been further alleged that they all, in furtherance of their common intention, abducted the prosecutrix, so that she might be forced or seduced to illicit intercourse.
5 It has been further alleged that all the accused in furtherance of their common intention committed the offence of abduction in order that prosecutrix might be put in dangerous/grievous hurt or slavery. 6 It has been further alleged that on the abovesaid date, time and place, all accused in furtherance of their common intention imported, exported and disposed of prosecutrix as a slave to Shyam Sunder, Vedpal and Daljeet.
Sessions Case No. 44/11 Page 3/35 47 A separate charge has been framed against accused Daljeet in respect of offences U/S 370 and U/S 368 IPC. The allegation in the charge is that in the house of Shyam Sunder at Village and P.O. Peepli, Kurukshetra, he [accused Daljit] alongwith accused Vedpal purchased prosecutrix for Rs. 1,60,000/- and concealed/wrongfully confined her in the house of Vedpal at village Ludhana, Distt. Jind, Haryana, after abduction.
8 All accused pleaded not guilty to the said charges and claimed trial.
9 To prove its case prosecution has examined 15 witnesses. They are Aruna (PW1), Sandhya(PW-2), Mahinder Singh(PW-3), Raghuvir(PW-4), Dalbir(PW-5), W. HC Shashi(PW-6), Dr. Shalabh Aggarwal(PW-7), W. Constable Mamta(PW-8), Dr. Priya Ranjan (PW-9), Constable Shubh Karan(PW-10), Constable Satya Narayan(PW-11), HC Kuldeep Singh(PW-12), ASI Ram Mehar(PW-
13), Sh. Sudesh Kumar(PW-14), and SI Dr. P.S. Bhardwaj(PW-15) 10 Statements of accused have been recorded U/S 313 Cr.PC. They have denied the allegations of prosecution. They have submitted that they are innocent. They have been falsely implicated in this case. 11 Accused Simpy has submitted that she has not been identified by any PW in the court. Only police officials have deposed against her, at the instance of I.O.
12 Accused Daljeet has submitted that he has been identified by Sessions Case No. 44/11 Page 4/35 5 complainant and prosecutrix at the instance of I.O because they wanted to extort money from him.
13 Accused Ranjana has submitted that she has not been identified by any PW in the court. Only police officials have deposed against her at the instance of I.O.
14 Accused Shakila has submitted that she appeared before the police with her husband Roz Ali after receiving the Pabandinama. She produced all necessary documents regarding her identification. Her name is Shakila. She is not Munni. In the complaint of Aruna, the name of accused is mentioned as Munni. She has been identified in the court by police officials at the instance of complainant and prosecutrix. No independent witness has deposed against her. 15 Accused Vedpal has deposed that he has been identified by complainant and prosecutrix at the instance of I.O because they wanted to extort money. No PW has deposed against him except the complainant and prosecutrix.
16 Accused Vedpal and Daljit preferred to lead evidence in their statements U/S 313 Cr.P.C. but they did not examine any witness in their defence despite opportunities. Remaining accused did not prefer to lead any evidence.
17 I have heard the arguments from ld. counsel for accused and Ld. Addl. P.P for State.
18 Ld. counsel for accused Vedpal and Daljit has prayed for Sessions Case No. 44/11 Page 5/35 6 acquittal by submitting that PW-1 and PW-2 are not trustworthy and reliable. There are contradictions in the testimonies of PWs. Raid conducted by I.O is doubtful as no independent witness was joined in the raid. All the documents were prepared at P.S. Complainant and her husband used to sell liquor. Her husband was involved in the dacoity case. She has lodged the present complaint in order to extort money from accused persons.
19 Ld. counsels for accused Simpy, Ranjana and Shakila have prayed for acquittal of accused by submitting that there is no evidence against the accused persons.
20 On the other hand, Ld. Addl. PP has prayed for conviction of all accused by submitting that prosecution has proved its case beyond reasonable doubt.
21 First of all, I am dealing with the offences U/S 365, 366,367, 368 and 370 IPC in respect of which accused Simpy, Ranjana and Shakila alias Munni are charged with. 22 Out of 15 witnesses examined by prosecution, PW-1 Aruna is the material witness being the complainant. She [PW-1] has deposed that prosecutrix is her sister. About five-six months ago, her sister was working as a house-maid in Gurgaon. One Shabnam, sister of accused Shakila, present in court, came to her house. She [Shabnam] stated that she would get a job for her sister [prosecutrix] for Rs. 5000/- per Sessions Case No. 44/11 Page 6/35 7 month. At that time, her sister [prosecutrix] was getting Rs. 3000/- per month. Therefore, they agreed for the proposal. She does not remember the exact date and year. She [PW-1] and her sister [prosecutrix] were taken to Pushta near Mansarovar Park by Shabnam, where they were introduced to two ladies namely, Simpy and Ranjana. They[Simpy and Ranjana] are not present in court. Shabnam, Simpy and Ranjana took away her sister [prosecutrix] to a person namely, Langda, residing somewhere in Kurukshetra, Haryana. When her sister [prosecutrix] was being taken away by the abovesaid three ladies, she [PW-1] was told that she would be provided a phone number, on which she would be able to talk to her sister [prosecutrix]. But, she [PW-1] was not given any phone number by them. The said Langda is not present in court. Said Langda took her sister [prosecutrix] to the house of accused Vedpal, present in court. She came to know about the said facts, later on, from her sister [prosecutrix], when she was recovered by police. Shabnam came to her [PW-1] after four-five days. She [PW-1] asked Shabnam about the contact number of her sister [Prosecutrix], Shabnam told her [PW-1] to let the prosecutrix work for a month and then her contact number would be given to her [PW-1]. After 10-15 days of that, when she [PW-1 was not provided phone number by Shabnam, she [PW-1] had a quarrel with Shabnam. Thereafter, Shabnam shifted her house to Sessions Case No. 44/11 Page 7/35 8 Jahangirpuri. When she [PW-1] did not get any clue about her sister [prosecutrix], she took Shakila, who was living in her locality, to the house of Shabnam, where she [PW-1] had a quarrel with Shabnam. Thereafter, she [Shabnam] was brought to Majnu Ka Tila. Shabnam took her [PW-1] to the house of accused Vedpal. She met accused Vedpal, his two brothers, his Mausi and wife of Daljit, present in court. She [PW-1] was informed by them that her sister [prosecutrix] had gone to attend marriage. She [PW-1] was accompanied by her elder sister. PW-1 and her elder sister stayed there, that night. In the morning, she [PW-1] met the mother of accused Vedpal and her sister [prosecutrix]. Prosecutrix told her [PW-1] that she spent that night in the house of the Mausi of accused Vedpal and had not gone to attend any marriage. When she [PW-1] asked the prosecutrix to accompany her [PW-1], the mother of accused Vedpal started quarrelling with her and said that accused Vedpal had bought the prosecutrix for Rs. 1,60,000/-. Mother of accused Vedpal further stated that she [PW-1] and her elder sister could take the prosecutrix with them after paying Rs. 1,60,000/- to them. Prosecutrix was not sent with them. She [PW-1], her elder sister and Shabnam came back. Thereafter, she [PW-1] alongwith her elder sister went to police post Majnu Ka Tila to lodge a complaint. But, police asked her to make a complaint at PS Jahangirpuri. She went to PS Sessions Case No. 44/11 Page 8/35 9 Jahangirpuri. But her complaint was not lodged there also. Thereafter, with the intervention of some known person, her complaint was lodged at P.S. Timarpur. She put her thumb impression on her complaint Ex. PW1/A. Thereafter, her sister [prosecutrix] was recovered from the house of accused Vedpal by the police. Her sister [prosecutrix] was taken to P.S. Timarpur. Thereafter, she was taken to Aruna Asaf Ali hospital for her medical examination. Thereafter, she [PW-1] alongwith her sister [prosecutrix] came back to her house. She had given some photographs to the police in respect of the identity of her sister[prosecutrix]. Photographs are Ex. PW1/C-1to Ex. PW1/C-3. 23 In leading questions, put to PW-1 by Ld. Addl. PP, she [PW1] has deposed that at the time of recovery of her sister [prosecutrix], a memo Ex. PW1/B was prepared, which bears her thumb impression at point A. She has volunteered that accused Vedpal and Daljit, present in court, were also arrested by police and brought to PS Timarpur. Memo Ex. PW1/D was also prepared by the police regarding the identification of accused Vedpal and Daljit. She has further admitted that accused Simpy and Ranjana were also brought to P.S Timarpur and memo Ex. PW1/E was prepared regarding their identification. Accused Shakila was also brought to P.S and was identified by prosecutrix vide memo Ex. PW1/F. 24 In cross-examination by Ld. Addl. PP, PW-1 has denied that Sessions Case No. 44/11 Page 9/35 10 accused Simpy was a resident of Jahangirpuri. She has admitted that her statement was recorded and she had stated to police that accused Ranjana and Simpy were arrested from their respective houses and she and prosecutrix had duly identified them in P.S. She has further deposed that accused Simpy and Ranjana are not present in court. She has denied that accused Simpy and Ranjana are the same ladies, who were identified by her and her sister [prosecutrix] in the PS when accused were arrested by police. She has denied that she has not identified intentionally accused Ranjana and Simpy as she has been won over by them. She has admitted that accused Shakila is her neighbour. She has denied that accused Shakila had offered a job of Rs. 5,000/- per month for her sister [prosecutrix] and Shakila had taken prosecutrix to Yamuna Pushta, Jagatpur, where they were introduced to accused Simpy and Ranjana. She [PW-1] has denied that she had stated the name of Munni in her complaint Ex. PW1/A. 25 An opportunity to cross-examine PW-1 has been given to ld. counsel for accused Shakila, but he did not avail of that opportunity. 26 In cross-examination by ld. counsel for accused Ranjana and Simpy, PW-1 has deposed that accused Ranjana and Simpy present in court, are not the same ladies, who met her at Pushta Sessions Case No. 44/11 Page 10/35 11 Mansarovar Park.
27 Another material witness is prosecutrix, who has been examined as PW-2. She [PW-2] has deposed that she was working as a maid servant in Gurgaon for about 8-9 months. She was getting a salary of Rs. 3000/- per month. She came back from Gurgaon about six-seven months after the death of her brother Vijay alias Mahinder. Her brother Vijay alias Mahinder was residing at Majnu Ka Tila alongwith her elder sister Aruna. One Shabnam, who had been residing in the same locality, came to their house. She [Shabnam] offered a job to her for Rs. 5000/- per month at village Peepli, Haryana. She [Shabnam] also said that she would talk to her sister Aruna, about that. About 15/20 days after the death of her brother, Shabnam took them [PW-1 and PW-2] to Yamuna Pushta and introduced them to two ladies namely, Ranjana from Panipat and Simpy from Kurukshetra. Simpy and Ranjana are not amongst the ladies, who are present in court. At Yamuna Pushta, they told her sister Aruna to go back home. She [prosecutrix] was taken to the house of one Langda at Peepli, Haryana. She [PW-2] stayed with the said Langda for a day. He told her that there was no work with him and she would be taken to some other place, where there would be work. The three women namely, Simpy, Ranjana and Shabnam also stayed with her in the house of Langda. Next day, in the Sessions Case No. 44/11 Page 11/35 12 presence of above ladies, two persons namely, Ved Pal and his Mausa Daljeet came there. They took her to their village. She has identified accused Vedpal and Daljeet.
28 In the leading questions put by Ld. Addl. PP, PW-2 has admitted that accused Vepal and Daljit were brought to PS, where they were arrested on her identification. Memo Ex. PW1/D to that effect was prepared. The same bears her thumb impression at point B. PW-2 has further admitted that accused Ranjana and Simpy were also brought to PS, where they were arrested on her identification. A memo to that effect i.e. Ex. PW1/E was prepared. The same bears her thumb impression at point B. She has admitted that accused Shakila was also brought to PS and was identified by her vide memo Ex. PW1/F. She has volunteered that she told the police that Shakila had nothing to do with the entire incident with her. 29 In cross-examination by ld. Addl. PP, PW-2 has deposed that accused Munni alias Shakila is present in court, who is the sister of Shabnam and was living in the same locality i.e. Majnu Ka Tila, Aruna Nagar, Timarpur. She has admitted that she narrated the entire story to Ld. MM, who recorded her statement. She has denied that accused Munni alias Shakila was the one, who introduced her to Shabnam and came with the proposal of getting her a job as maid servant for Rs. 5000/- per month. She has denied that accused Munni alias Sessions Case No. 44/11 Page 12/35 13 Shakila alongwith Shabnam introduced them to accused Simpy and Ranjana, present in court, who had taken her to the house of one Langda. She has further denied that she stated to police in her statement that accused Munni alias Shakila was the one, who came with the proposal of job for Rs. 5000/- and introduced them to Shabnam and both took her to Simpy and Ranjana. During investigation, they were told that Rs. 1,60,000/- were given to accused Simpy, Ranjana, Shabnam and Langda. She has denied that she had stated to police that on 20.04.10 she alongwith her sister Aruna were taken by police to the house of accused Simpy and Ranjana at Jahangirpuri, from where they were arrested on their identification. She has further denied that she is not intentionally identifying accused Ranjana and Simpy as she has been won over by them. She has denied that she has deposed falsely and has not supported prosecution case as she has been won over by them. 30 An opportunity to cross-examine the witness has been given to ld. counsel for accused Shakila, but he did not avail of that opportunity.
31 In cross-examination by ld. counsel for accused Simpy and Ranjana, PW-2 has admitted that the ladies who were introduced as Simpy and Ranjana at Yamuna Pushta, are not the same ladies, who are present in court.
Sessions Case No. 44/11 Page 13/35 1432 It is worth noting that in the present case, PW-1 Aruna and PW-2 prosecutrix are the material witnesses. Both of them have not identified accused Shakila, Simpy and Ranjana by deposing that the ladies present in court are not the same ladies who were involved in the commission of offence. PW-1 has categorically denied in her cross-examination by Ld. Addl. PP that accused Simpy, Ranjana are the same ladies, who were identified by her and prosecutrix in P.S. Timarpur. She has further denied that she is intentionally not identifying accused as she has been won over by them. She has further denied that Munni alias Shakila had offered a job of Rs. 5000/- for her sister [prosecutrix] and she [accused Munni alias Shakila] had taken them to Yamuna Pushta, where they were introduced to accused Simpy and Ranjana.
33 Similarly, PW-2 prosecutrix has also categorically deposed that accused Munni alias Shakila was not involved in the entire incident, which happened with her. In cross-examination by ld. Addl. PP, prosecutrix has denied that accused Munni was the one who initially introduced her and PW-1 to Shabnam and gave the proposal of job for her for Rs. 5000/- per month. She [prosecutrix] has further denied that Munni alias Shakila introduced them [PW-1 and PW-2] to accused Simpy and Ranjana, who had taken prosecutrix to the house of Langda. She has further denied that she [prosecutrix] alongwith her Sessions Case No. 44/11 Page 14/35 15 sister Aruna had identified accused Simpy and Ranjana in PS Timarpur and they were arrested on their identification. She has also denied that she is not intentionally identifying Simpy and Ranjana as she has been won over by them.
34 Since, the material witnesses i.e. PW-1 Aruna and PW-2 prosecutrix have not identified accused Shakila, Simpy and Ranjana, I am of the considered view that prosecution has miserably failed to prove its case against accused Shakila, Simpy and Ranjana. Accordingly, all the three accused namely, Simpy, Ranjana and Shakila are acquitted of the offences they were charged with. 35 Now, I am taking the offence U/S 370 and 368 IPC in respect of which accused Daljit and Vedpal have been charged with.
36 Section 368 IPC is reproduced here for ready reference:
"Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person,shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement."
37 Section 370 IPC is reproduced here for ready reference:
" Whoever imports, exports, removes, buys, sells or Sessions Case No. 44/11 Page 15/35 16 disposes of any person as a slave, or accepts, receives or detains against his will any persons as a slave, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine".
38 In the present case, PW-1 Aruna, who is the sister of prosecutrix has categorically deposed that Shabnam took her to the house of Vedpal, where she met his brothers and Mausi. She [PW-1] was told that prosecutrix had gone to attend the marriage. But, in the morning, the prosecutrix told that she had spent the night in the house of Mausi of accused Vedpal. She [PW-1] has further deposed that she asked the prosecutrix to accompany her but the mother of accused Vedpal started quarrelling and asked her [PW-1] and her elder sister Poonam to pay Rs. 1,60,000/- to take back the prosecutrix as accused Vedpal had purchased prosecutrix for the said amount. Thereafter, she [PW-1] alongwith her sister and Shabnam came back and prosecutrix was not sent with them.
39 In cross-examination by ld. counsel for accused Daljit, PW-1 has deposed that accused Daljit is Mausa of accused Vedpal. House of accused Daljit is adjacent to the house of accused Vedpal. Both the houses are close to each other. When they reached the house of accused Vedpal, the neighbours did not come to know about their arrival. She asked about her sister from three persons. One of them Sessions Case No. 44/11 Page 16/35 17 was Vedpal. She did not ask anyone else. Accused Daljit was not present in the house in the night time.
40 PW-2 has deposed that her sister Aruna and Poonam alongwith Shabnam came to the house of Vedpal. Mother of Vedpal sent her to another room and told to go to sleep. She was not allowed to meet her sisters despite her requests. Mother of accused Vedpal, whose name she does not know, told her sisters that she [prosecutrix] was not at home and had gone somewhere. Next morning, she met her sisters and she [prosecutrix] started crying. She [Prosecutrix] told her sisters that she was in the same house and was not allowed to meet them. Her sisters requested accused Vedpal, his mother and Ved Pal's Mausi that she [PW-2] should be allowed to accompany her sisters but they refused and asked for Rs. 1,60,000/- to set her free. Accused Vedpal also threatened her sisters that if they came again without money, they would face dire consequences. Some villagers also gathered and there was a lot of heated discussion with her sisters. Her sisters had to leave without her [prosecutrix]. After her sisters left, she [PW-2] was told time and again that she would not be allowed to leave the house unless money was paid. After about 4-5 days, her sisters came back alongwith 6-7 policemen. They took her and accused Daljit to local police station, where she was interrogated by police. She narrated the entire story to police and her statement was recorded.
Sessions Case No. 44/11 Page 17/35 1841 In cross-examination by Ld. counsel for accused Vedpal, PW-2 has denied that she voluntarily went to the village of accused Vedpal in order to get married with him. During the period, she remained with accused Vedpal, she had no contact with her sisters in Delhi. She has denied that accused Vedpal had given her a phone to contact her family members. She has denied that she was constantly in touch with her family members through mobile phone. She has further deposed that when her sisters came to the house of accused Vedpal alongwith Shabnam, she was sent to the house of Mausi of Vedpal to sleep.
42 Another material witness is PW-4 Raghuvir. He has deposed that he does not know anything about the present case. He does not want to say anything else.
43 In cross-examination by ld. Addl. PP, PW-4 has deposed that accused Vedpal and Daljeet are not his relatives. He does not know them. He has never seen them. Police did not record his statement in this case. He has denied that about three months prior to April, 2010, he had met his relative Vedpal and his uncle Daljeet and they asked him [PW-4] to look for a match for Ved Pal. He has denied that he had talked about the same to one Raj Rani, who met him [PW-4] in Kurukshetra and that she [Raj Rani] asked him to go to Shyama, who was also living in Kurukshetra and that on the same day, he [PW-4] Sessions Case No. 44/11 Page 18/35 19 alongwith one Dalbir met Shyama and requested him to find a match for Vedpal for his marriage. He has denied that Shyama had demanded his fees for the same. He has denied that one day thereafter, he met Vedpal who told him [PW-4] that he [Vedpal] had bought a girl for Rs. 1,60,000/- after paying the money in two instalments. He has denied that accused Vedpal and Daljeet, present in court, are his relatives and he is intentionally not identifying them to save them from the present case. He has denied that he is deposing falsely.
44 Another material witness is Dalbir. He has deposed that Raghuvir is the resident of his village. He does not know anything about the present case. He does not know why his name has been added by the police as a witness in this case. Police came to him about six-seven months back at his residence and obtained his thumb impression on a blank paper. He is illiterate.
45 In cross-examination by ld. Addl. PP, PW-5 has denied that he made statement Mark PW5/A to the police. He has denied that about nine-ten months back, he had gone to one Shyama with Raghuvir and asked Shyama to look for a match for one relative of Raghubir and for this work, Shyama fixed up a fee of Rs. 1,60,000/-. He has denied that police recorded his statement as per his [PW-5's] version and he [PW-5] did not put his thumb impression on blank Sessions Case No. 44/11 Page 19/35 20 paper. He has denied that he is not supporting the prosecution case and is deposing falsely as he has been won over by accused persons. 46 In the present case, it is the case of PW-2 that accused Vedpal bought her for Rs. 1,60,000/- and mother of accused told her that she has been bought by accused for the payment of Rs. 1,60,000/-. 47 It is worth noting that in the present case, the person Langda, co-accused Shyam Sunder from whom accused Vedpal had bought prosecutrix for a sum of Rs. 1,60,000/- could not be arrested so far by the police. PW-4 Raghubir has categorically denied that accused Vedpal and Daljit are his relatives and they asked him [PW-4] to look for a match for Vedpal. He has further denied that one Raj Rani asked to go to Shyama or that he [PW-4] alongwith one Dalbir met Shyama and asked to look for a match and Shyama demanded fee for that. The other witness Dalbir has also denied that he had gone to one Shyama with Raghuvir and asked Shyama to look for a match for one relative of Raghubir and for this work, Shyama fixed up a fee of Rs.1,60,000/-. 48 It is worth noting that it is not the case of PW-2 [prosecutrix] that she had ever seen accused Shyam Sunder, who took an amount of Rs. 1,60,000/- from Vedpal.
49 After going through the testimonies of PW-1 Aruna and PW2 prosecutrix, it becomes clear that prosecutrix has been concealed or confined in the house of accused Vedpal only and she has been Sessions Case No. 44/11 Page 20/35 21 recovered from his house by the police. Both witnesses have categorically deposed that mother of accused Vedpal asked them for Rs. 1,60,000/- which accused Vedpal had paid for purchasing the prosecutrix in order to set free the prosecutrix. It is worth noting that PW-1 and PW-2 have nowhere deposed that accused Daljit had ever purchased or concealed or confined the prosecutrix in his house. It is further significant to note that PW-1 has categorically deposed in her cross-examination by ld. counsel for accused Daljit that accused Daljit was not present in his house in the night time, when prosecutrix was sent to his house to sleep.
50 It is further significant to note that PW-2 has deposed that she had stated to police that accused Vedpal and his Mama Daljeet had taken her from Langda and that she was taken to the house of Langda by the lady accused. But, these facts are not contained in her statement to police Ex. PW2/DB and statement to Ld. MM U/S 164 Cr.PC Ex. PW2/A. 51 In view of above facts, I am of the considered view that there is nothing on record to show that accused Vedpal and Daljeet ever paid some amount to Langda for the purchase of prosecutrix. I am of the considered view that prosecution has miserably failed to prove its case against accused Daljit in respect of offences U/S 368 and 370 IPC. Hence, accused Daljit is acquitted of the said offences.
Sessions Case No. 44/11 Page 21/35 22Since, prosecution has also failed to prove its case beyond reasonable doubt against accused Vedpal, so far as the offence U/S 370 IPC is concerned, he [accused Vedpal] is acquitted of the offence U/S 370 IPC.
52 However, so far as the offence U/S 368 IPC is concerned, I am of the considered view that PW-2 has fully supported the prosecution case by categorically deposing that she was concealed and confined by accused Vedpal in his home. PW-2 has clearly deposed that she was not allowed to go outside his house and his family members used to keep a watch upon her activities and she was never left alone to have contact with anyone. She was not allowed by accused Vedpal and his family members to have contact with the women of village and was confined in the house of accused Vedpal. There is nothing in her cross-examination to the contrary. Further, PW-1 has also deposed that the prosecutrix was not allowed to leave the house, when she [PW-1] alongwith her elder sister and Shabnam went to the house of accused Vedpal. I am of the considered view that testimony of PW-1 cannot be disbelieved only because that she used to sell liquor alongwith her husband and her husband was involved in a dacoity case. Further, in her cross-examination by ld. counsel for accused she has categorically denied that she lodged the complaint and falsely implicated the accused in order to extort money from him Sessions Case No. 44/11 Page 22/35 23 [accused].
53 Further, the true and trustworthy testimonies of PW-1 and PW-2 cannot be disbelieved only because that they did not identify the women accused. It may be noted that PW-1 and PW-2 may have their own reasons for not supporting the prosecution case, so far as accused Simpy, Ranjana and Shakila are concerned. It may further be noted that the testimony of witness, who has turned hostile, cannot be brushed aside altogether and can be taken into consideration to the extent it supports the prosecution case. Further, the testimonies of PW- 1 and PW-2 cannot be disbelieved only because that there are some contradictions in the testimonies of other PWs. In the present case, PW-10 Constable Shubh Karan has deposed that prosecutrix was recovered from the house of accused Vedpal on 20.04.10. But PW-15 SI Dr. P.S. Bhardwaj has deposed that on 19.04.10 the prosecutrix was identified by her sister and recovery memo Ex. PW1/B was prepared bearing his signatures at point C. I am of the considered view that the said contradiction will not materially affect the case of prosecution because, as per recovery memo Ex. PW1/B, the prosecution has been recovered on 20.04.10. It is further worth noting that recovery memo Ex. PW1/B is signed by HC Ram Mehar, PW-13, who has deposed that he alongwith I.O./SI Dr. P.S. Bhardwaj and other staff visited the house of Vedpal from where prosecutrix was recovered on 20.04.10. 54 Further, PW15 [I.O] had deposed in his examination-in-chief Sessions Case No. 44/11 Page 23/35 24 at one place that accused Vedpal and Daljit were arrested on 21.04.10 but in his cross-examination by ld. counsel for accused Vedpal and Daljit, he has deposed that as per Press Release, the arrest of accused was shown as 19.04.10. I am of the considered view that the said contradiction in the testimony of PW-15 is of no consequence. It is worth noting that PW-15 has categorically deposed that as per DD entry No. 33 dated 19.04.10 P.S. Pillukhera, accused Vedpal and Daljeet were interrogated in custody. He has further deposed that he got the information about the hide out of accused Daljeet and Vedpal on the night of 20.04.10. However, both accused were arrested on 21.04.10. It is significant to note that the alleged Press Release, relied upon by accused has not been placed on record. Thus, I am of the considered view that much weight cannot be given to the said Press Release. Moreover, Press Release is not substantive piece of evidence. Further, as per the arrest memos of accused Vedpal and Daljeet Ex. PW10/A and Ex. PW10/B respectively, they were arrested on 21.04.10 and not on 19.04.10. Further, both the arrest memos have been signed by Const. Shubh Karan [PW-10], who has also deposed that accused Vedpal and Daljeet were arrested on 21.04.10.
55 In the present case, the conduct of I.O cannot be said to be doubtful only because that he did not join the independent witness in the proceedings. It is worth noting that the PW-15 has categorically Sessions Case No. 44/11 Page 24/35 25 deposed, in his cross-examination by ld. counsel for accused Vedpal and Daljit, that he asked 3/4 local people of village Ludhana to join the raid but they refused and left the spot without telling their names and addresses. He has also denied that he, in connivance with complainant Aruna, has falsely implicated the accused in the case. He has further denied that all the proceedings relating to the case were done by him while sitting in the police station.
56 In view of the categorical statement of prosecutrix [PW-2], as has been discussed above, I am of the considered view that prosecution has successfully proved its case that accused Vedpal wrongfully confined the prosecutrix in his house and concealed her as she had been abducted by deceitful means. Accordingly, Vedpal is convicted of the offence U/S 368 IPC.
57 Now, I am coming to Section 342 and 376 IPC, in respect of which accused Vedpal has been charged. PW-2 has deposed that she was compelled to do hard labour in the house of accused as well as in the field, such as collecting of cowdung, household chores and cooking etc. During that time, they [accused Vedpal and his family] did not provide her sufficient food. Accused Vedpal was residing with his two brothers namely, Sadhu, Leelu and their mother. The behaviour of accused Vedpal was bad towards her. Accused Vedpal, Daljeet and Sadhu repeatedly had physical relations with Sessions Case No. 44/11 Page 25/35 26 her like husband and wife without her consent. There were occasions when she was not even able to stand and walk properly. Due to their acts, her health started deteriorating. She requested them time and again to allow her to leave their house. 58 In cross-examination by ld. counsel for accused Vedpal, PW-2 has deposed that she was married to one Veeru and her marriage was solemized in Majnu Ka Tila, Delhi. She had some dispute with her husband and therefore, she started doing job of maid servant at Gurgaon. Her husband used to beat her and therefore, she left him. She has denied that she wanted to marry someone else on account of her long pending dispute with her husband. She did not suspect any foul play, when the offer of job was made. She has denied that she was aware and with her consent she went to the village of accused Ved Pal, in order to get married with him. During the period she remained with accused Vedpal in his village, she had no contact with her sister in Delhi. She did not intimate any mobile number to her sister Aruna to contact her. She has volunteered that phone number might have been given by Shabnam, who gave phone number to her sister and thereafter, her sister gave the phone number to police, when they were searching her. She has denied that accused Vedpal had given her a mobile number and told her that she was free to contact her family members by using the said mobile phone. She has denied that she was Sessions Case No. 44/11 Page 26/35 27 in constant touch with her family members through said mobile phone. She has denied that she was also contacted on said mobile number by the police and her sisters several times. Accused Vedpal was having relationship with her like that of husband and wife. She has further deposed that the house of Vedpal was two storeyed. There were two rooms on the ground floor and two rooms on the upper floor. Nobody was residing on the ground floor as it was used for cattle. She has further deposed that the fields of accused Vedpal were located quite far from his house. She never walked on foot. She was always taken on a bullock cart to the fields. She used to perform all house-hold chores, which are being performed by other women in the village. She has denied that marriage ceremony was performed between her and accused Vedpal out of her own free will in the presence of villagers. She has denied that her sister Aruna wanted to extort money from accused Vedpal and therefore, falsely implicated accused Vedpal in the present case. She never visited any P.S regarding any case prior to present case. She did not make any complaint to the police, when accused persons did not allow her to go with her sisters. She has volunteered that she was never allowed to go out of the house alone and they [accused Vedpal and his family] always used to chase her and keep a watch over her movements. Accused used to go out for the work and his mother used to remain at home and many times, one or Sessions Case No. 44/11 Page 27/35 28 two of his brothers used to go out and others used to remain in the house. She has denied that she had several chances or opportunities to escape from the house but she did not do so being lawfully married to accused Vedpal. She has volunteered that accused used to keep watch on her movements even when she used to go out to answer the call of nature. One or two persons used to keep vigil on her. Sometimes, ladies of village talked to her but most of the time she was not allowed to speak to them. She has further deposed that whenever somebody came, she was told to go upstairs. She could never disclose her problem to any lady of that village as she was not allowed to talk to them. She never went alone to give bath to the cattle in the village pond. She does not know as to how far the bus stop was from the house. She never heard any sound of train. The main road was far away from the village. She sometimes saw buses passing, when she was being taken on bullock cart. She has denied that she is deposing falsely in collusion with her sister to extort money from accused.
59 In the present case, as regards offence U/S 342 IPC, there is cogent, reliable and consistent evidence of PW-1 and PW2 and their veracity is not impeached in cross-examination. Hence, it is proved on record that accused Vedpal has wrongfully confined the prosecutrix in his home. PW-2 has supported the prosecution case and her testimony Sessions Case No. 44/11 Page 28/35 29 is not reproduced here to avoid repetition and accused Vedpal is convicted of offence U/S 342 IPC.
60 So far as, the offence U/S 376 IPC is concerned, it is significant to note that it is the case of PW-2 [which has been discussed in the earlier part of judgment] that there was relationship of husband and wife between her and accused Vedpal and he [accused Vedpal] committed rape upon her on many occasions. She could not even stand or walk properly. Due to acts of accused, her health started deteriorating.
61 It is worth noting that after recovery of prosecutrix from the house of accused, she has been medically examined by PW-9 Dr. Priya Ranjan at Aruna Asaf Ali Hospital vide MLC Ex. PW9/A. After medical examination, PW-9 referred the prosecutrix to Sr. Resident, Obstetrics and Gynecologist for detailed examination. 62 In cross-examination by ld. counsel for accused Vedpal, PW-9 has deposed that she did not notice any external injuries on the body of prosecutrix.
63 PW-16 Dr. Mona has been deputed by Medical Supdt. to prove the Gynecological examination, which had been conducted by Dr. Alka Goel on the body of prosecutrix. She [PW-16] has identified the signatures at point X-2 and handwriting of Dr. Alka Goel on MLC Ex. PW9/A. The examination conducted by Dr. Alka Goel from point X to X-1 on MLC Ex. PW9/A is Ex. PW16/A. As per local Sessions Case No. 44/11 Page 29/35 30 examination, the prosecutrix was having 'hymen old tear [healed]' and there was discharge with foul smell from vagina.
64 In cross-examination by ld. counsel for accused Vedpal and Daljit, PW-16 has deposed that vaginal discharge, having foul smell, may take place even without any sexual intercourse. 65 In the present case, accused Vedpal has also been medically examined by PW-7 Dr. Shalabh Aggarwal on 04.05.10 vide MLC Ex. PW7/A. He [PW-7] has opined that there was nothing to suggest that the person examined was not capable to perform sexual intercourse. 66 In cross-examination by ld. counsel for accused Vedpal, PW-7 has deposed that he did not notice any external injuries on the body Vedpal.
67 In State of Tamil Nadu Vs. Raju @ Nehru, 2006 10 SCC 534, it was observed by Hon'ble Supreme Court:
It is, therefore, quite possible to count legally the offence of rape without producing any injury to the genitals or leaving any seminal stain. 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."
68 In State of H.P Vs. Asha Ram (2006)2 SCC Crl.296 it was held :
"It is now a well settled principal of law that Sessions Case No. 44/11 Page 30/35 31 conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also well settled principal of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances."
69 In Wahid Khan Vs. State of M.P, Hon'ble Supreme Court has held :
"It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom if she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also conscious of the Sessions Case No. 44/11 Page 31/35 32 danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian Society which is, of course, not as forward looking as the western countries are."
70 In the present case, PW-2 has categorically stated that she was raped by accused Vedpal in his house. She has also deposed that accused Vedpal maintained the relation of husband and wife with her, due to which her health started deteriorating and she was unable to stand or walk properly. It is worth noting that nothing has come in cross-examination of PW-2 to disbelieve her testimony so far as the offence of rape is concerned. The suggestions, which were put to her, were pertaining to her marriage with accused Vedpal only and those suggestions were denied by PW-2. It is worth noting that in cross- examination by ld. counsel for accused Vedpal, PW-2 has admitted that Vedpal was having relationship with her like husband and wife. I do not find any ground to disbelieve her testimony in this regard and of the considered view that prosecution has proved its case beyond reasonable doubt against accused Vedpal in respect of offence U/S 376 IPC. Accordingly, accused Vedpal is convicted of offence U/S 376 IPC.
71 Now, I am coming to the offence U/S 120B IPC, which has been framed against all accused.
Sessions Case No. 44/11 Page 32/35 3372 Section 120B is reproduced here for ready reference:
"Whoever, is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence."
The term 'Criminal conspiracy has been defined under Section 120A of Indian Penal Code which is reproduced here for ready reference:
When two or more persons agree to do, or cause to be done-
(1)an illegal act, or (2)an act which is not illegal by illegal means, such an (3)agreement is designated a criminal conspiracy :
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
In State Vs. Nalini (1999)5 Supreme Court Cases 253 it was held by Hon'ble Supreme Court that the Offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is a legal act by illegal means overt act is necessary. Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused had the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever horrendous it may be, that offence is committed.
It was further held that Conspiracy is hatched in private Sessions Case No. 44/11 Page 33/35 34 or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.
It was also held that when two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement.
It was further held that a charge of conspiracy may prejudice the accused because it forces them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of the object of conspiracy. The court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided.
It was further held that it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, act and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.
73 In the present case, three accused i.e. Simpy, Ranjana and Shakila have already been acquitted in respect of offence U/S 365, 366, 367, 368 and 370 r/w Section 34 IPC as material witnesses PW-1 Aruna and PW-2 prosecutrix did not identify them. Accused Daljit has also been acquitted in respect of offence U/S 368 and 370 IPC.
Sessions Case No. 44/11 Page 34/35 35Accused Vedpal has also been acquitted in respect of offence U/S 376 IPC.
74 Since accused Simpy, Ranjana, Shakila and Daljit have already been acquitted, I am of the considered view that there is no material on record to show that accused Vedpal ever entered into any agreement with co-accused to commit the offences U/S 365, 366, 367, 368, 370 and 376 IPC. Accordingly, all accused are acquitted of the offence U/S 120B IPC.
75 To conclude, accused Simpy, Ranjana, Shakila and Daljit are acquitted of the offences U/S 365,366,367,368 and 370 read with Section 34 IPC.
76 Accused Daljit is acquitted of the offences U/S 368 and 370 IPC.
77 Accused Vedpal is acquitted of offence U/S 370 IPC 78 All the accused i.e. Vedpal, Daljit, Simpy, Ranjana and Shakila are acquitted of the offence U/S 120B IPC. 79 Accused Vedpal is convicted in respect of offences U/S 342, 368 and 376 IPC.
Announced in the open court today
on 13.03.12 (Smt. Bimla Kumari)
Additional Sessions Judge-II(North)
Tis Hazari Courts, Delhi.
Sessions Case No. 44/11 Page 35/35