Delhi District Court
State vs Kapil -:: Page 1 Of 62 ::- on 25 April, 2013
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
State
Versus
Mr.Kapil son of Mr. Vimal Kumar,
Resident of C-212, Camp No.2,
Nangloi, Delhi.
First Information Report Number : 102/11
Police Station Nangloi,
Under sections 363/376 of the Indian Penal Code.
Date of filing of the charge sheet before : 14.07.2011.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 25.08.2011.
In the Sessions Court
Date of transfer of the file to this Court : 12.02.2013.
ASJ (SFTC)-01, West, THC, Delhi.
Arguments concluded on : 25.04.2013.
Date of judgment : 25.04.2013.
Appearances: Mr.Anil Kumar, Additional Public Prosecutor for the State.
Accused on bail with counsel, Mr.Rakesh Raj Murti.
Ms.Sadhna Singh, counsel for the Delhi Commission for Women.
************************************************************
Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi,
Under sections 363/376 of the Indian Penal Code.
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. This case falls in the list of twenty oldest cases pending before this Court and a sincere endeavour has been made to dispose it expeditiously.
2. Rape is a dark reality in Indian society like in any other nation. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is known to the culprit, as in the present case, who is allegedly subjected to unwanted physical contact by a perverted male adult.
3. "Courts are expected to show great responsibility while trying Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.
PROSECUTION CASE
4. Mr. Kapil, the accused, has been charge sheeted by Police Station Nangloi, Delhi for the offence under section 363 and 376 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 14.04.2011 at 1.30 p.m. from house No.A765 Camp No.2, Nangloi, Delhi, he had kidnapped the minor prosecutrix (name withheld to protect her identity) from the lawful guardianship of her parents without their consent and had committed rape upon her.
CHARGE SHEET AND COMMITTAL
5. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 14.07.2011 and Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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after its committal, the case was assigned to the Court of the learned predecessor vide order dated 25.08.2011 of the learned Sessions Judge, Delhi. Further, the case has been transferred and assigned to this Court i.e. Additional Sessions Judge (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi for 12.02.2013 vide order bearing number 20/372-512/F-3(4)/ASJ/01/2013, dated-04.01.2013 of the learned District and Sessions Judge, Delhi.
CHARGE
6. After hearing arguments, charge for offence under sections 363 and 376 of the IPC was framed against the accused by the learned predecessor on 02.09.2011.
PROSECUTION EVIDENCE
7. In order to prove its case, the prosecution has examined as many as 12 witnesses. HC Naresh Chand, Duty Officer who brought original FIR and rukka, is PW1; HC Atul, the Malkana Moharrar, is PW2; Ms.Rafia, mother of the prosecutrix is PW3; Mr.Mohd. Anwar Khan, father of the prosecutrix is PW4; the prosecutrix is PW5, ASI Pricilla Kujar, the Duty Officer who had recorded the formal FIR of the case, is PW5; Ms.Dhammi Devi, Principal, is PW6; Mr.Satbir Singh Lamba, learned Metropolitan Magistrate, who recorded the statement of prosecutrix under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.), is PW7; Dr.Sanjay Kumar Jain, is PW8; Lady Ct.Nitesh, a witness of investigation, is PW9; Dr.Hena Kausar, who has proved the MLC of the prosecutrix prepared by Dr.Megha Purohit, is PW10; Ct.Bhagwan Singh, a Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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witness of investigation, is PW11; and ASI Shiv Narain, the Investigation Officer, is PW12.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
8. In his statement under section 313 of the Cr.P.C., recorded on 06.03.2013, the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has been falsely implicated in this case. He has submitted that the prosecutrix was involved in a love affair with him which was objected to by her parents since she is a Muslim and he is a Hindu. She had told him that she was above 18 years of age and she wanted to marry him. She had made him elope with her. He had not enticed, allured or kidnapped the prosecutrix and she had herself come to him and made him go with her. The accused has preferred to lead evidence in his defence.
DEFENCE EVIDENCE
9. The accused has examined himself as DW1 and Ms.Saroj, his mother, as DW2 in his defence.
ARGUMENTS
10. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
11. The Additional Public Prosecutor for the State has requested for Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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convicting the accused for having committed the offence under sections 363 and 376 of the IPC submitting that the prosecution has been able to bring home the charge against the accused persons by examining its witnesses whose testimonies are corroborative and reliable.
12. The counsel for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. It is also submitted that there is no evidence led by the prosecution to show that the prosecutrix was a minor and that she was kidnapped and raped by the accused.
CASE OF THE PROSECUTION, ALLEGATIONS AND DOCUMENTS
13. As per the allegations of the prosecution, on 14.04.2011 at 1.30 p.m. from house No.A765 Camp No.2, Nangloi, Delhi, the accused had kidnapped the minor prosecutrix from the lawful guardianship of her parents without their consent and had committed rape upon her.
14. The prosecution story unfolds with Ms.Rafia (PW3), the mother of the prosecutrix going to the Police Station Nangloi on 15.04.2011 at about 12 midnight and making a complaint (Ex.PW3/A) against the accused of kidnapping her daughter, the prosecutrix. Rukka (Ex.PW3/B) was recorded by IO ASI Shiv Narain (PW12) who gave it to the Duty Officer HC Naresh Chand (PW1) who lodged the FIR (Ex.PW1/A) and made his endorsement (Ex.PW1/B). On 18.04.2011, a secret information was received by the IO that the prosecutrix and the accused are at Pahar Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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Ganj, New Delhi Railway Station Waiting Hall and going to Jaipur on which the IO, Ct.Bhagwan Singh (PW11) and Lady Ct.Bharti went there and the prosecutrix was recovered vide recovery memo (Ex.PW5/B) and the accused was apprehended. The prosecutrix was handed over to Lady Ct.Bharti and the accused was handed over to Ct.Bhagwan Singh. The prosecutrix had given a letter (Ex.PW12/DA) addressed to the SHO. He was arrested vide arrest memo (Ex.PW11/A) and his personal search was taken vide personal search memo (Ex.PW11/C). The accused disclosed vide disclosure statement (Ex.PW11/C) that he and the prosecutrix were married in a temple and from two days they were staying in the Waiting Hall of the Railway Station and Rain Basera. Ms.Rafia and Mr.Mohd.Anwar Khan, the parents of the prosecutrix, (PWs 3 and 4 respectively) handed over the school leaving certificate regarding the date of birth of the prosecutrix (Ex.PW4/B) which was seized vide seizure memo (Ex.PW4/A). The school register showing the date of birth of the prosecutrix as 12.04.1996 (Ex.PW6/A) was produced by Ms.Dhanni Devi (PW6) who deposed that the admission was given to the prosecutrix on the basis of the affidavit of her mother (Ex.PW6/B) and on filling of the admission form (Ex.PW6/C). The prosecutrix was medically examined at SGM Hospital by Dr.Megha Purohit, whose writing and signatures are proved by Dr.Hena Kausar (PW10), vide MLC (Ex.PW10/A) and the samples pertaining to the prosecutrix including one black coloured pajami (Ex.PW5/P1) and one sample seal were seized vide seizure memo (Ex.PW12/A). The accused was medically examined at SGM Hospital by Dr.Sanjay Kumar Jain (PW8) vide MLC (Ex.PW8/A) and the samples pertaining to the accused and one sample seal were seized vide seizure Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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memo (Ex.PW11/D). The statement under section 164 of the Cr.P.C. of the prosecutrix (Ex.PW5/A) was recorded by Mr.Satvir Singh Lamba, learned Metropolitan Magistrate (PW7) on the application of the IO (Ex.PW7/A) and certificate (Ex.PW7/B) was issued and a copy of the statement was given to the IO on application (Ex.PW7/C). On 18.04.2011, the exhibits of the case were deposited in the Malkhana with HC Atul (PW2) by the IO vide entry number 5495 in register number 19 (Ex.PW2/A). On 12.07.2011, the pullandas along with the sample seals were sent through the IO to the FSL vide RC number 64/21/21 (Ex.PW2/B) and acknowledgement (Ex.PW2/C) was deposited in the Malkhana. On 17.07.2011, the exhibits of the case were examined in the FSL vide reports (Ex.PW12/B and Ex.PW12/B1) and application (Ex.PW12/C) in this regard was moved. On 18.10.2011, Ct.Babu Lal deposited the pullandas and one envelope containing the FSL report in the Malkhana.
TESTIMONIES OF THE PROSECUTION WITNESSES PW5-Prosecutrix-Material Witness
15. PW5, the prosecutrix, has deposed that she was introduced to the accused by her friend, Ms.Nausheen, who was the girl friend of Mr. Sunil, friend of the accused. In the end of the year 2010, as her parents had gone to UP. On the request of her mother, Ms.Nausheen has been sent by her mother, Ms.Chandni, to sleep in the house of the prosecutrix. Ms.Nausheen had talked to Mr.Sunil on her mobile phone and then she had dialled the number of the accused. While she was talking to the accused, the prosecutrix had come inside the room and Ms.Nausheen on inquiry from Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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Mr.Kapil, the accused, told her that she is her distant relative. The
prosecutrix took the phone and told the accused "hamara aapas ka mamla hai, hum suljha lenge tum dur raho" on which the accused said "mujhse shaadi karogi". She handed the phone to Ms.Nausheen and went to sleep in her room. In the month of January, Ms.Nausheen gave a phone to her as the accused was on the line. He wished her for the New Year and when she told him that it was too late, he apologized on which she said that it was OK and on the festival of Raksha Bandhan she will tie a Rakhi on time. On hearing the conversation, Ms.Nausheen said that Raksha Bandhan has already been celebrated and now it is time to celebrate Valentine Day in the month of February. The accused then said "I love You" on which she disconnected the phone and gave it to Ms.Nausheen. Once she had gone with Ms.Nausheen to the nearby market for purchase of stitching thread (spool) but the shop was closed. Ms.Nausheen started moving ahead and on inquiry whether there is any other shop, she replied that one of her close friend resides there and she made a telephonic call and said "hum tere ghar ke neeche khade hain". The accused came there and invited them to his house. On her refusal, Ms.Nausheen told her not to create a scene and that the mother of the accused would also be there and there was nothing wrong in going to his house. She went with Ms.Nausheen to the house of the accused where his mother was also there. The accused brought a big bottle of Coca Cola and Mr.Sunil also came with him. After taking the cold drink, she left the house. The accused followed her and caught hold her from hand in the stair case which she removed and went down the stairs. On way to the home, Ms.Nausheen received a phone call from the accused and she handed over the phone to her. The accused told her that he was Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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coming to her house. She went to the house of Ms.Nausheen on the first floor and started stitching clothes and saw the accused rushing to the third floor where her house is situated. Ms.Chandni was lifting the dry clothes from the roof and on her inquiry the accused told her that he had forgotten on which floor she resided and as such he had reached the third floor. Thereafter, he came to the house of Ms.Nausheen and Ms.Chandni and told her "dekho jo main kehta hun karke dikhata hun". Once she had talked to the accused on the phone of Ms.Nausheen, he had told her that he had cut his hand and if she will not meet him he will cut his vein and commit suicide and she would be responsible for the same. On the next day, she went to see him at his home and found some cut injuries on his palm. He again offered to marry her and threatened to commit suicide, if she refused. She told him that her parents would be angry, if they found her missing from the home and left. After some days, mother of the accused talked to her on the phone of Ms.Nausheen and told her "agar mere bete ko kuch ho gaya, to main tera or teri maa ka puri gali main fazita kar dungi". On inquiry she was told that accused had consumed something. In March 2011, prior to Holi, accused talked to her on Ms.Nausheen's phone and asked her to enjoy Holi with him to which she replied that being a Muslim she does not play with colours. He told her that in case she did not play Holi with him he will come to her house and put colour on her. She also heard some of his friends saying on the phone "hum bhi ayenge, hum bhi ayenge". She became frightened as at that time her father was hospitalized due to cancer and her mother used to stay in the hospital with him while she was alone at home. Due to fear, she went to the house of the accused on Holi where some of his relatives were also present. All of them put colours on her and Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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then she came home. On 14.04.2011, she left the house at 1:30 pm to study Muslim Kalam Pak (Urdu) near her house and returned at about 2:00 pm. Ms.Nausheen was standing at the window of her house and talking on phone. She told her that the accused had done something wrong with himself i.e. either he had consumed something or had cut his vein and is very serious. He wanted to meet the prosecutrix at the Metro Station Nangloi. She told Ms.Nausheen that she will tell the entire facts to her mother on which Ms.Nausheen told her to talk to the accused once face to face and that they will return within 15 minutes. On the repeated insistence of Ms.Nausheen, both of them reached Metro Station Nangloi where the accused met them. He was fine and nothing was wrong with him. She said "ise kuch bhi nahi hua". Accused offered a Pepsi to Ms.Nausheen which she refused and then he offered to her which she also refused on which Ms.Nausheen said "itne pyar se de raha hai, to le le". She took the Pepsi given to her by the accused and after sometime she started feeling giddy. She did not know when Ms.Nausheen left from them. She became unconscious and when she regained consciousness she found herself in a village but she did not know its name. Accused confined her in a room in the village, locked it from outside and went somewhere. He returned on the same night. She was crying and asked the accused to allow her to talk to her mother which he refused saying that he would let her talk to Ms Chandni, mother of Ms.Nausheen. Despite her insistence to talk to her mother and not to Ms. Chandni, he connected the phone to Ms. Chandni. She told Ms. Chandni that she wanted to talk to her mother on which she replied that she has already talked to her mother and asked her to stay with the accused for two days and convinced her that accused would drop her Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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back after that. The accused snatched the mobile phone from her hand and said that "ye bahut zada ro rahi hai". He went out of the room taking his phone and bolted it from outside. This incident happened on Saturday night. On the next day, i.e. on Sunday night the accused raped her. She requested him not to have physical relation with her as she was in great pain but he did not listen to her and forcibly established the physical relation with her. On the same night at about 3 - 3:30 am, the police officials along with relatives of the accused visited the room, she was sleeping at that time and one relative, a fat man, slapped and woke her up. He threatened her that "agar tumne Kapil ke khilaf kuch bhi bayan diya, to tumhe yahi kaat ke daal denge or tumhare bhai ko bhi maar denge or thumhare pitaji to pehle se hi mare hue hain". Her father was a cancer patient at that time. Thereafter, the police officials with the relatives of the accused took her and the accused to PS Kirti Nagar in a vehicle. She again said but she did not remember the name of the PS whether it was Kirti Nagar or some other Police Station. They stayed there overnight and on the next morning they were brought to PS Nangloi. While she was being taken to the Police Station, relatives of the accused (the fat man) kept persuading her to tell the police that she had accompanied the accused with her own consent. From PS Nangloi she was taken to SGM hospital for her medical examination and from there she was produced before the Court and sent to Nari Niketan. On the next day, she was produced in the Court from Nari Niketan for her statement before the learned Metropolitan Magistrate and on the way one police official told her that she should not depose against her since her parents had got her age recorded as 15 years and if she would depose against the accused, she too could be behind the bars for three years. She Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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was scared and made a statement in favour of the accused before the learned Metropolitan Magistrate. She was again sent to Nari Niketan. After 2-3 days, her parents came to Nari Niketan and took her to their house. After reaching her house she narrated everything to her mother and told her that she had gone with the accused willingly.
16. As the prosecutrix was hostile and had resiled from her previous statement to the police, she was cross examined by the Additional Public Prosecutor wherein she has deposed in the recovery memo that it is mentioned in the same that she was found present at New Delhi Railway Station with the accused. Even there, she had been told by the police to depose in accordance with this memo. In fact, she was recovered in a room with the accused in a village from where she was taken to PS.
17. In her cross-examination on behalf of the accused, she has deposed that she became friends with Ms.Nausheen when she started living on the first floor of the same premises where she was living on the third floor. In relation, Ms.Nausheen is her Bua (paternal aunt) and they were on visiting terms. She did not know since when Ms.Nausheen was in love affair with Mr.Sunil and she did not know whether parents of Ms.Nausheen were aware about the same. She had never talked to her parents and parents of Ms.Nausheen regarding the love affair. She did not know the mobile numbers of Ms.Nausheen as well as Mr.Sunil. She did not remember the mobile number of the accused which she remembered earlier. She had talked to the accused on phone in the year 2010 when he was not known to Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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her. Once when her mother had left her phone at home, Ms.Nausheen had talked to the accused from that phone and thereafter, the accused called her on that number once or twice. She had attended the call but did not talked to him and asked him not to call on that number. When she had visited the house of the accused, she did not tell her parents. The accused had not told his mother that he is in love affair with her. She had also not told her parents that the accused had told her that he would cut his vein and commit suicide if she did not meet him. She had admitted that she has visited the house of the accused when he had told her the same. She did not tell her parents that the mother of the accused had told her on the phone of Ms.Nausheen that "agar mere bete ko kuch ho gaya to main tera or teri maa ka puri gali mein fazita kar doongi". She did not inform her parents when she visited the house of accused on Holi in March, 2011 even after her father returned from the hospital. She had not disclosed about her being compelled to go to the Metro Station with Ms.Nausheen, consuming cold drink, becoming unconscious and regaining consciousness in a village. She had not made any police complaint to the senior officers that she was asked by the police not to disclose the real place of recovery. She did not tell about the rape and the other details to the learned Metropolitan Magistrate and did not make any complaint to the police that she had been told by the relatives of the accused not to depose against the accused.
PWs 3 and 4, Parents of the Prosecutrix-Material witnesses
18. PWs 3 and 4 are the parents of the prosecutrix. PW3 has proved the complaint (Ex.PW3/A) made by her to the police that on 14.04.2011, Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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the accused had taken her minor daughter aged about 15 years in connivance with co-tenants Ms.Naushin and Ms.Chandni. On 18.04.2011, on the acll of the IO, she went to the Police Station Nangloi with her husband and saw the prosecutrix and the accused. Her husband handed the school certificate of their daughter to the IO. The prosecutrix was medically examined and produced in the Court from where she was sent to Nirmal Chaya. She had come to know about the relations of her daughter with the accused on 13.04.2011. She did not make any complaint to higher police officers regarding the inaction of the police against Ms.Naushin and Ms.Chandni. At the time of admission of the prosecutrix in the school, she had given the MCD date of birth certificate in the school but the same was destroyed in a fire accident in her house. She has admitted to be correct that on 19.04.2011 she had come to the Court and that she had talked to the prosecutrix prior to her statement under section 164 of the Cr.P.C.
19. PW4 has deposed that he had given the photocopy of the school leaving certificate of his daughter to the IO. His daughter was born at home and the date of birth of his daughter is not entered in the MCD record. Her year of birth is 1996 and the moth, as he remembered, is June. He was married in 1995 and his daughter was born after 11 months.
Police witnesses
20. PW1, is the Duty Officer who has recorded the formal FIR of the case.
Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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21. PW2 is the MHC(M) with whom the case property has been deposited.
22. PW9 is the Lady Ct.who had brought the prosecutrix from Nirmal Chaya with the IO to the Court for her statement under section 164 of the Cr.P.C. and thereafter brought her back.
23. PW11 is a witness of the investigation. He has deposed that on 18.04.2011, on the receipt of information by ASI Shiv Narain that the accused and the prosecutrix are in the Waiting Room of New Delhi Railway Station, he has gone with the IO and Lady Ct.Bharti to New Delhi Railway Station where both were apprehended. He has proved the arrest of the accused and the documents relating to the arrest, the disclosure and the medical examination of the accused.
24. PW12 is the Investigation Officer ASI Shiv Narain. He has deposed that on 15.04.2011 at around 12 midnight Ms.Rafia had lodged the missing report of her daughter and suspected that the accused may have enticed her. Her statement (Ex.PW3/A) was recorded on which rukka (Ex.PW3/B) was written and the FIR (Ex.PW1/A) was lodged. On 18.04.2011, he received secret information that the accused and the prosecutrix are at Pahar Ganj, New Delhi Railway Station Waiting Hall and were going to Jaipur. He had gone with Ct.Bhagwan Singh and Lady Ct.Bharti to New Delhi Railway Station Waiting Hall and found both the accused and the prosecutrix there. Both were apprehended. He interrogated Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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the accused who told him that they were married in a temple and from two days they were staying in the Waiting Hall, Railway Station and Rain Basera. He has proved the arrest of the accused and the documents relating to the arrest, the disclosure and the medical examination of the accused and seizure of the exhibits relating to him as well as the recovery of the prosecutrix, her medical examination and seizure of the exhibits relating to her and recrding of her statement under section 164 of the Cr.P.C. (Ex.PW11/A, Ex.PW11/B, Ex.PW11/C, Ex.PW11/D, Ex.PW12/A). He also seized the school leaving certificate of the prosecutrix handed by her parents vide seizure memo (Ex.PW4/A). The FSL reports (Ex.PW12/B and Ex.PW12/B1) were collected by him and filed in the Court vide application (Ex.PW12/C).
Formal witnesses
25. PW6 is the School Principal who has produced the school admission register, school leaving certificate, affidavit of the mother of the prosecutrix filed at the time of her admission and the admission form.
26. PW7 is the learned Metropoltan Magistrate who had recorded the statement of the prosecutrix under section 164 of the Cr.P.C..
Medical and Forensic Evidence
27. PW8 had medically examined the accused.
28. PW10 has proved the MLC vide which the prosecutrix had been Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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medically examined.
29. PW12, IO has proved the FSL reports (Ex.PW12/B and Ex.PW12/B1) which were collected by him and filed in the Court vide application (Ex.PW12/C).
DISCUSSION AND ANALYSIS
30. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
31. Under this sphere, I now proceed to test the submissions of both the sides.
32. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
DEFENCE OF THE ACCUSED
33. The accused has claimed in his defence that he has been falsely implicated in this case. In his statement under section 313 of the Cr.P.C., recorded on 06.03.2013, the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has been Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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falsely implicated in this case. He has submitted that the prosecutrix was involved in a love affair with him which was objected to by her parents since she is a Muslim and he is a Hindu. She had told him that she was above 18 years of age and she wanted to marry him. She had made him elope with her. He had not enticed, allured or kidnapped the prosecutrix and she had herself come to him and made him go with her. The accused has preferred to lead evidence in his defence and has examined himself as DW1 and Ms.Saroj, his mother, as DW2.
34. No reason or explanation has been furnished by the accused regarding his mother not joining the investigation after he was arrested, if this was a false case.
35. Except for a cursory suggestion to the prosecutrix to the effect that the present case was made against the accused is false which has been denied by her there is nothing shown by the accused in support of his stand. He has not even given the suggestion to the prosecutrix regarding being married to him.
36. Therefore, I am of the considered opinion that there is no veracity in the defence of the accused.
37. The accused has also failed to show any motive or malafide intention on the part of the prosecutrix and her parents for implicating him in a false case. The accused failed to assign any malafide motive to PW5 that she would get him falsely implicated in a rape case. The defence of the Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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accused does not appear to be probable.
IDENTITY OF THE ACCUSED
38. There is no dispute regarding the identity of the accused. It is also not in dispute that they were known to each other prior to the lodging of the FIR. He is also named in the FIR.
39. Therefore, the identity of the accused stands established.
VIRILITY OF THE ACCUSED
40. The accused has been medically examined by Dr.Sanjay Kumar Jain (PW8) vide MLC (Ex.PW8/A) wherein it is opined that "There is nothing to suggest that this person cannot perform the act of sexual intercourse)" PW8 has not been cross examined by the accused nor the defence of the accused is that he is impotent.
41. This report indicates that the accused is virile and is capable of performing sexual act and is capable of committing the act of rape.
MLC OF THE PROSECUTRIX AND FSL REPORTS
42. The MLC of the prosecutrix (Ex.PW10/A) shows that she does not have any fresh external injury and the hymen is old torn. It also mentions that the mother of the prosecutrix had told the doctor that the prosecutrix had absconded from home on 14.04.2011 and came on 17.04.2011.
Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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43. Also the FSL reports (Ex.PW12/B and Ex.PW12/B1) also show that semen could not be detected on the vulval swabs, vaginal smears, vaginal swabs, pyjami, pubic hair etc. of the prosecutrix.
44. These facts indicate that her version regarding her being raped are false as had she been actually raped, she would have received some injuries, maybe minor and the FSL reports would have shown the presence of semen. When semen is not connecting the accused to the crime, there cannot be any conviction. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
45. Therefore, it is clear that there is no medical nor forensic evidence against the accused to indicate that he has raped the prosecutrix.
MENS REA / MOTIVE
46. Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
47. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
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of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
48. In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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facts.
49. In the present case, a story has been projected that the accused has kidnapped and raped the prosecutrix and this version appears to be untrue as there is no reason why he would do so. The prosecutrix has herself gone with the accused as even stated by her mother to the doctor, as mentioned in the MLC (Ex.PW10/A). There does not appear to be any criminal intention and mens rea on the part of the accused.
DELAY IN FIR
50. The contention of the counsel for the accused that there was a delay in lodging of the FIR which is fatal to the case is tenable as the prosecutrix went missing on the morning of 14.04.2011 at about 1.30 pm while the FIR has been lodged on 15.04.2011 at 1.20 pm i.e. after a delay of one day and the delay in lodging of the FIR has been not explained by the prosecution.
51. The Additional Public Prosecutor, on the other hand, submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible since the parents of the prosecutrix was searching for her.
52. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.
53. In the case reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, the Hon'ble Supreme Court has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy. Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.
Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
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54. I find on perusal of the record that indeed the criminal action was swung into motion after one day and satisfactory explanation has been furnished by the prosecution that the parents was indeed making efforts to trace her.
55. Therefore, it cannot be said that the FIR was lodged after a delay which is fatal to the prosecution story.
MATERIAL WITNESSES NOT EXAMINED
56. The prosecution has failed to produce and examine some material witnesses whose evidence could have been very relevant in the present case. Ms.Naushin, her mother Ms.Chandni and her friend Mr.Sunil have neither been cited as witnesses in the list of witnesses of the prosecution nor produced nor examined nor any explanation is coming forth from the prosecution regarding the lapse.
AGE OF THE PROSECUTRIX
57. An important issue in dispute is the age of the prosecutrix. The prosecution has claimed her age to be about 17 years (as per the statement/complaint of her mother-Ex.PW3/A) that she is aged about 17 years while the accused has claimed that she was above 18 years and was a major on the date of the alleged offence and they were together with the free consent of the prosecutrix.
58. PW5, the prosecutrix, has stated in her statement under section 164 of the Cr.P.C. that she is about 17 years old on the date of offence. In Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
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her evidence before the Court on 13.04.2012 after one year of the offence, she has deposed that she is aged about 16 years which makes her about 15 years old at the time of alleged incident.
59. PW3, the mother of the prosecutix, has deposed that she was aged about 15 years at the time of incident.
60. PW4, the father of the prosecutix, has not mentioned her age but has deposed that her year of birth is 1993 and she was born in June.
61. PW6, the Principal of the school, has deposed that as per the school records (school admission register-Ex.PW6/A), the date of birth of the prosecutrix is 12.04.1996 which makes her age about 15 years at the time of alleged offence.
62. It is clear from the evidence of the witnesses of the prosecution especially PW4 and PW6 that they do not have the birth certificate issued by the Municipal Authorities or the MCD. The parents of the prosecutrix have not even deposed her date of birth.
63. It is also borne out of the record that the ossification test of the prosecutrix was not got conducted.
64. It is a common knowledge that in India parents generally tell the age of the child in the school much less than the actual age of the child for the reason that he or she may get benefit of the same in future. Present case Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
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is also an exception to the same. It is clear that prosecutrix date of birth was not registered. Whatever her parents told verbally was written in the school record. It is evident that there is sufficient evidence to show that the said date of birth had been given on the basis of some authentic and credible information.
65. The school admission register (Ex.PW6/A), school leaving certificate (Ex.PW4/A), affidavit of the father of the prosecutrix filed at the time of her admission (Ex.PW6/B) and the admission form (Ex.PW6/C).
66. Although PW6 has deposed that the mother of the prosecutrix had filed her affidavit at the time of the admission of the prosecutrix but actually the affidavit of the father has been filed on the judicial record. However, this fact does not make the prosecutrix any less minor on the date of the alleged offence. The date of birth is very clearly mentioned as 12.04.1996.
67. The counsel for the accused has submitted that there is an overwriting in the year of the birth in Ex.PW6/B and Ex.PW6/C which is not initialed which shows that 1993 is changed to 1996 thereby implying that the prosecutrix was a major on the date of the alleged incident.
68. However, I find that in the school register (Ex.PW6/A) shows the date of birth of the prosecutrix very clearly as 12.04.1996.
69. There is no reason shown by the accused as to why the parents Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
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of the prosecutrix, at the time of her admission in school, would furnish a wrong date of birth as it cannot be presumed that the parents could foresee that after many years their daughter would be a victim in a rape case in which her date of birth would be required.
70. Her father as PW4 has also categorically deposed that the year of birth of the prosecutrix is 1996. He was married in 1995 and his daughter was born after 11 months. This part of his deposition also shows that the prosecutrix was a minor i.e. below 18 years of age at the time of the incident.
71. It has been recently observed by the hon'ble Delhi High Court in the case reported as Aakash Juvenile through his father Malkhan Singh v. NCT of Delhi and anr., 2013 (1) LRC 109 (Del) that preference has to be given to the date of birth certificate of the school.
72. Therefore, in view of the testimonies of the prosecution witnesses regarding the date of birth of the prosecutrix, it can be said that the age of the prosecutrix was less than 18 years i.e. about 15 years and that she was a minor on the date of the alleged offence.
73. The prosecution has been able to prove that she was a minor on the date of the alleged offence.
Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
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STATEMENT AND EVIDENCE OF THE PROSECUTRIX
74. It is necessary to discuss and analyse the testimony of the most material witness i.e. PW5, the prosecutrix, as she has taken different stands in her statements.
75. In the Court, during trial, the prosecutrix, as PW5, in her evidence, PW5, the prosecutrix, has deposed that she was introduced to the accused by her friend, Ms.Nausheen, who was the girl friend of Mr. Sunil, friend of the accused. In the end of the year 2010, as her parents had gone to UP. On the request of her mother, Ms.Nausheen has been sent by her mother, Ms.Chandni, to sleep in the house of the prosecutrix. Ms.Nausheen had talked to Mr.Sunil on her mobile phone and then she had dialled the number of the accused. While she was talking to the accused, the prosecutrix had come inside the room and Ms.Nausheen on inquiry from Mr.Kapil, the accused, told her that she is her distant relative. The prosecutrix took the phone and told the accused "hamara aapas ka mamla hai, hum suljha lenge tum dur raho" on which the accused said "mujhse shaadi karogi". She handed the phone to Ms.Nausheen and went to sleep in her room. In the month of January, Ms.Nausheen gave a phone to her as the accused was on the line. He wished her for the New Year and when she told him that it was too late, he apologized on which she said that it was OK and on the festival of Raksha Bandhan she will tie a Rakhi on time. On hearing the conversation, Ms.Nausheen said that Raksha Bandhan has already been celebrated and now it is time to celebrate Valentine Day in the month of February. The accused then said "I love You" on which she disconnected Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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the phone and gave it to Ms.Nausheen. Once she had gone with
Ms.Nausheen to the nearby market for purchase of stitching thread (spool) but the shop was closed. Ms.Nausheen started moving ahead and on inquiry whether there is any other shop, she replied that one of her close friend resides there and she made a telephonic call and said "hum tere ghar ke neeche khade hain". The accused came there and invited them to his house. On her refusal, Ms.Nausheen told her not to create a scene and that the mother of the accused would also be there and there was nothing wrong in going to his house. She went with Ms.Nausheen to the house of the accused where his mother was also there. The accused brought a big bottle of Coca Cola and Mr.Sunil also came with him. After taking the cold drink, she left the house. The accused followed her and caught hold her from hand in the stair case which she removed and went down the stairs. On way to the home, Ms.Nausheen received a phone call from the accused and she handed over the phone to her. The accused told her that he was coming to her house. She went to the house of Ms.Nausheen on the first floor and started stitching clothes and saw the accused rushing to the third floor where her house is situated. Ms.Chandni was lifting the dry clothes from the roof and on her inquiry the accused told her that he had forgotten on which floor she resided and as such he had reached the third floor. Thereafter, he came to the house of Ms.Nausheen and Ms.Chandni and told her "dekho jo main kehta hun karke dikhata hun". Once she had talked to the accused on the phone of Ms.Nausheen, he had told her that he had cut his hand and if she will not meet him he will cut his vein and commit suicide and she would be responsible for the same. On the next day, she went to see him at his home Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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and found some cut injuries on his palm. He again offered to marry her and threatened to commit suicide, if she refused. She told him that her parents would be angry, if they found her missing from the home and left. After some days, mother of the accused talked to her on the phone of Ms.Nausheen and told her "agar mere bete ko kuch ho gaya, to main tera or teri maa ka puri gali main fazita kar dungi". On inquiry she was told that accused had consumed something. In March 2011, prior to Holi, accused talked to her on Ms.Nausheen's phone and asked her to enjoy Holi with him to which she replied that being a Muslim she does not play with colours. He told her that in case she did not play Holi with him he will come to her house and put colour on her. She also heard some of his friends saying on the phone "hum bhi ayenge, hum bhi ayenge". She became frightened as at that time her father was hospitalized due to cancer and her mother used to stay in the hospital with him while she was alone at home. Due to fear, she went to the house of the accused on Holi where some of his relatives were also present. All of them put colours on her and then she came home. On 14.04.2011, she left the house at 1:30 pm to study Muslim Kalam Pak (Urdu) near her house and returned at about 2:00 pm. Ms.Nausheen was standing at the window of her house and talking on phone. She told her that the accused had done something wrong with himself i.e. either he had consumed something or had cut his vein and is very serious. He wanted to meet the prosecutrix at the Metro Station Nangloi. She told Ms.Nausheen that she will tell the entire facts to her mother on which Ms.Nausheen told her to talk to the accused once face to face and that they will return within 15 minutes. On the repeated insistence of Ms.Nausheen, both of them Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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reached Metro Station Nangloi where the accused met them. He was fine and nothing was wrong with him. She said "ise kuch bhi nahi hua". Accused offered a Pepsi to Ms.Nausheen which she refused and then he offered to her which she also refused on which Ms.Nausheen said "itne pyar se de raha hai, to le le". She took the Pepsi given to her by the accused and after sometime she started feeling giddy. She did not know when Ms.Nausheen left from them. She became unconscious and when she regained consciousness she found herself in a village but she did not know its name. Accused confined her in a room in the village, locked it from outside and went somewhere. He returned on the same night. She was crying and asked the accused to allow her to talk to her mother which he refused saying that he would let her talk to Ms Chandni, mother of Ms.Nausheen. Despite her insistence to talk to her mother and not to Ms. Chandni, he connected the phone to Ms. Chandni. She told Ms. Chandni that she wanted to talk to her mother on which she replied that she has already talked to her mother and asked her to stay with the accused for two days and convinced her that accused would drop her back after that. The accused snatched the mobile phone from her hand and said that "ye bahut zada ro rahi hai". He went out of the room taking his phone and bolted it from outside. This incident happened on Saturday night. On the next day, i.e. on Sunday night the accused raped her. She requested him not to have physical relation with her as she was in great pain but he did not listen to her and forcibly established the physical relation with her. On the same night at about 3 - 3:30 am, the police officials along with relatives of the accused visited the room, she was sleeping at that time and one relative, a Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
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fat man, slapped and woke her up. He threatened her that "agar tumne Kapil ke khilaf kuch bhi bayan diya, to tumhe yahi kaat ke daal denge or tumhare bhai ko bhi maar denge or thumhare pitaji to pehle se hi mare hue hain". Her father was a cancer patient at that time. Thereafter, the police officials with the relatives of the accused took her and the accused to PS Kirti Nagar in a vehicle. She again said but she did not remember the name of the PS whether it was Kirti Nagar or some other Police Station. They stayed there overnight and on the next morning they were brought to PS Nangloi. While she was being taken to the Police Station, relatives of the accused (the fat man) kept persuading her to tell the police that she had accompanied the accused with her own consent. From PS Nangloi she was taken to SGM hospital for her medical examination and from there she was produced before the Court and sent to Nari Niketan. On the next day, she was produced in the Court from Nari Niketan for her statement before the learned Metropolitan Magistrate and on the way one police official told her that she should not depose against her since her parents had got her age recorded as 15 years and if she would depose against the accused, she too could be behind the bars for three years. She was scared and made a statement in favour of the accused before the learned Metropolitan Magistrate. She was again sent to Nari Niketan. After 2-3 days, her parents came to Nari Niketan and took her to their house. After reaching her house she narrated everything to her mother and told her that she had gone with the accused willingly.
76. As the prosecutrix was hostile and had resiled from her previous Sessions Case Number : 84 of 2013.
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statement to the police, she was cross examined by the Additional Public Prosecutor wherein she has deposed in the recovery memo that it is mentioned in the same that she was found present at New Delhi Railway Station with the accused. Even there, she had been told by the police to depose in accordance with this memo. In fact, she was recovered in a room with the accused in a village from where she was taken to PS.
77. In her cross-examination on behalf of the accused, she has deposed that she became friends with Ms.Nausheen when she started living on the first floor of the same premises where she was living on the third floor. In relation, Ms.Nausheen is her Bua (paternal aunt) and they were on visiting terms. She did not know since when Ms.Nausheen was in love affair with Mr.Sunil and she did not know whether parents of Ms.Nausheen were aware about the same. She had never talked to her parents and parents of Ms.Nausheen regarding the love affair. She did not know the mobile numbers of Ms.Nausheen as well as Mr.Sunil. She did not remember the mobile number of the accused which she remembered earlier. She had talked to the accused on phone in the year 2010 when he was not known to her. Once when her mother had left her phone at home, Ms.Nausheen had talked to the accused from that phone and thereafter, the accused called her on that number once or twice. She had attended the call but did not talked to him and asked him not to call on that number. When she had visited the house of the accused, she did not tell her parents. The accused had not told his mother that he is in love affair with her. She had also not told her parents that the accused had told her that he would cut his vein and commit Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
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suicide if she did not meet him. She had admitted that she has visited the house of the accused when he had told her the same. She did not tell her parents that the mother of the accused had told her on the phone of Ms.Nausheen that "agar mere bete ko kuch ho gaya to main tera or teri maa ka puri gali mein fazita kar doongi". She did not inform her parents when she visited the house of accused on Holi in March, 2011 even after her father returned from the hospital. She had not disclosed about her being compelled to go to the Metro Station with Ms.Nausheen, consuming cold drink, becoming unconscious and regaining consciousness in a village. She had not made any police complaint to the senior officers that she was asked by the police not to disclose the real place of recovery. She did not tell about the rape and the other details to the learned Metropolitan Magistrate and did not make any complaint to the police that she had been told by the relatives of the accused not to depose against the accused.
78. The prosecutrix, in her statement under section 164 Cr.P.C., has deposed that she is living with my parents. They are six sisters and one brother and she is the eldest. She has studied upto 4th class. She knows Kapil, s/o.Lt Sh. Vimal Kumar, r/o.C-2/2, Camp no.2, Nangloi for the last 4 months. He lives in another block of their colony. Initially they used to talk over phone and later they used to meet. Gradually they began to love each other. When her mother came to know that she used to talk with some boy, she scolded her. She told her mother that she like Kapil and wanted to marry him. Her mother denied for this as they are Muslim and he is Hindu. Her father used to remain ill. He did not react over this issue but her mother Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
State versus Kapil -:: Page 36 of 62 ::-
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used to scold and taunt her due to which she remained disturbed. For this reason, she decided to go with Kapil. She told this fact to Kapil. He also stopped her for not going anywhere with him and told her that if she makes her mother agree then he will send his mother for talking about his marriage with her. But she knew that her mother will not be agree for this. On 14.04.2011, they both with their own free consent left the house and at about 1:30 p.m met at Nangloi Metro Station. From there they went to Madipur Station and then from there they went to Delhi Railway Station. Then through out the day, they wandered at Jama Masjid and Chandni Chowk and stayed at a Rain Basera in night. Thereafter, she spent two days with Kapil in a rented accommodation. They used to take food outside. There they used to reside as husband and wife. Third day from leaving of their house, they made physical relations with their free will. She spent 3-4 days with Kapil with her free consent. She was happy with Kapil. On the Sunday evening, the police saw them and took them to Police Station and then they were taken to Nangloi Police Station and then she was medically examined. Kapil has not committed any offence with her. She had gone and stayed with him with her free consent. She did not want these facts to be told to her parents.
79. In her statement to the police, the prosecutrix has stated that on 11.04.2011, her mother saw her while talking with Kapil over phone and scolded her. She told my mother that she wanted to marry with Kapil on which her mother had beaten her. On 14.04.2011 at about 1:30 p.m., she left her house and reached at New Delhi Railway Station. Then Kapil also reached there with her. They wandered here and there in Delhi and slept at Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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Rain Basera, Old Delhi Railway Station at night. After that on 18.04.2011, they both were going to Jai Pur by train from New Delhi Railway Station. Police caught Kapil. She was going with him with her free consent.
80. The prosecutrix has taken different stands and given different versions of the alleged incident in her statements under section 161 of the Cr.P.C. as well as under section 164 of the Cr.P.C. and her evidence before the Court. There are overwhelming contradictions in her different statements.
81. In her statement to the police as well to the learned Metropolitan Magistrate in her statement under section 164 of the Cr.P.C., the prosecutrix has completely absolved the accused stating that she had gone and stayed with him with her free consent as she loved him and wanted to marry him.
82. However, in her evidence before the Court, she has taken a different stand deposing that she was kidnapped and raped by the accused. The contradictions and inconsistencies in the different statements of the prosecutrix are tabulated below:-
Statement to the Police Statement under Evidence before the Court as section 164 of the PW5 Cr.P.C.
On 11.04.2011, her No such deposition. No such deposition. mother saw her while talking with Kapil over phone and scolded her.
She told her mother that She told her mother No such deposition. she wanted to marry with that she liked Kapil Kapil on which her and wanted to marry Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
State versus Kapil -:: Page 38 of 62 ::-
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mother had beaten her. him. My mother
denied for this as
they are Muslim and
he is Hindu.
No such deposition. Her mother used to No such deposition.
scold and taunt her
due to which she
remained disturbed.
For this reason, she
decided to go with
Kapil. She told this
fact to Kapil. He also
stopped her for not
going anywhere with
him and told her that
if she makes her
mother agree then he
will send his mother
for talking about his
marriage with her.
But she knew that her
mother will not be
agree for this.
On 14.04.2011 at about On 14.04.2011, they No such deposition.
1:30 p.m., she left her both with their own
house and reached at free consent left the
New Delhi Railway house and at about
Station. Then Kapil also 1:30 p.m met at
reached there with her. Nangloi Metro
Station. From there
they went to Madipur
Station and then from
there they went to
Delhi Railway
Station.
They wandered here and Through out the day, No such deposition.
there in Delhi and slept at they wandered at
Rain Basera, Old Delhi Jama Masjid and
Railway Station at night. Chandni Chowk and
stayed at a Rain
Basera in night.
On 18.04.2011, they both Thereafter, she spent No such deposition.
were going to Jai Pur by two days with Kapil
train from New Delhi in a rented
Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi,
Under sections 363/376 of the Indian Penal Code.
State versus Kapil -:: Page 39 of 62 ::-
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Railway Station. Police accommodation.
caught Kapil. She was They used to take
going with him with her food outside. There
free consent. they used to reside as
husband and wife.
Third day from
leaving of their
house, they made
physical relations
with their free will.
She spent 3-4 days
with Kapil with her
free consent. She was
happy with Kapil.
No such deposition On the Sunday No such deposition.
evening, the police
saw them and took
them to Police Station
and then they were
taken to Nangloi
Police Station and
then she was
medically examined.
Kapil has not
committed any
offence with her. She
had gone and stayed
with him with her
free consent. She did
not want these facts
to be told to her
parents.
No such deposition. No such deposition. On 14.04.2011, she left the
house at 1:30 pm to study
Muslim Kalam Pak (Urdu)
near her house and returned at
about 2:00 pm. Ms.Nausheen
was standing at the window of
her house and talking on
phone. She told her that the
accused had done something
wrong with himself i.e. either
he had consumed something or
had cut his vein and is very
serious. He wanted to meet the
Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi,
Under sections 363/376 of the Indian Penal Code.
State versus Kapil -:: Page 40 of 62 ::-
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prosecutrix at the Metro Station
Nangloi. She told
Ms.Nausheen that she will tell
the entire facts to her mother
on which Ms.Nausheen told
her to talk to the accused once
face to face and that they will
return within 15 minutes. On
the repeated insistence of
Ms.Nausheen, both of them
reached Metro Station Nangloi
where the accused met them.
He was fine and nothing was
wrong with him. She said "ise
kuch bhi nahi hua".
No such deposition. No such deposition. Accused offered a Pepsi to
Ms.Nausheen which she
refused and then he offered to
her which she also refused on
which Ms.Nausheen said "itne
pyar se de raha hai, to le le".
She took the Pepsi given to her
by the accused and after
sometime she started feeling
giddy. She did not know when
Ms.Nausheen left from them.
She became unconscious and
when she regained
consciousness she found
herself in a village but she did
not know its name. Accused
confined her in a room in the
village, locked it from outside
and went somewhere. He
returned on the same night.
She was crying and asked the
accused to allow her to talk to
her mother which he refused
saying that he would let her
talk to Ms Chandni, mother of
Ms.Nausheen. Despite her
insistence to talk to her mother
and not to Ms. Chandni, he
connected the phone to Ms.
Chandni. She told Ms.
Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi,
Under sections 363/376 of the Indian Penal Code.
State versus Kapil -:: Page 41 of 62 ::-
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Chandni that she wanted to talk to her mother on which she replied that she has already talked to her mother and asked her to stay with the accused for two days and convinced her that accused would drop her back after that. The accused snatched the mobile phone from her hand and said that "ye bahut zada ro rahi hai". He went out of the room taking his phone and bolted it from outside. This incident happened on Saturday night.
No such deposition. No such deposition. On the next day, i.e. on Sunday night the accused raped her.
She requested him not to have physical relation with her as she was in great pain but he did not listen to her and forcibly established the physical relation with her. On the same night at about 3 - 3:30 am, the police officials along with relatives of the accused visited the room, she was sleeping at that time and one relative, a fat man, slapped and woke her up.
He threatened her that "agar tumne Kapil ke khilaf kuch bhi bayan diya, to tumhe yahi kaat ke daal denge or tumhare bhai ko bhi maar denge or thumhare pitaji to pehle se hi mare hue hain". Her father was a cancer patient at that time.
No such deposition No such deposition Thereafter, the police officials with the relatives of the accused took her and the accused to PS Kirti Nagar in a vehicle. She again said but she did not remember the name of the PS whether it was Kirti Nagar or some other Police Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
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Station. They stayed there
overnight and on the next
morning they were brought to
PS Nangloi.
83. The prosecutrix has made several improvements in her testimony in the Court as PW5, as elaborated above, especially regarding the history of the case and as to how she came in touch with the accused and the manner in which the relations developed.
84. There is no explanation coming from the prosecution regarding the improvements made by the prosecutrix.
85. Further, the story of the fat man, a relative of the accused, is also a new version put by her. If there was any such fat man who had threatened her, then there is no explanation coming forth from the prosecution as to why no complaint was made by the prosecutrix or her family immediately to the police or to the learned Metropolitan Magistrate recoding her statement under section 164 of the Cr.P.C. or even later on during the investigation of the case and trial before the Sessions Court. The mother of the prosecutrix, as PW3, has even deposed that she had met her daughter prior to the recording of her statement under section 164 of the Cr.P.C. and therefore, if there was any such threat, the prosecutrix could have taken her mother into confidence.
86. The prosecutrix has been talking to the accused on phone and even on the mobile phone of her mother, meeting him, going to his house, Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
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playing Holi with him and his relatives etc. and all these acts could not have been done under pressure or threat as it is apparent that she was doing do voluntarily. The fact that she has not made any complaint against the accused to any one including her parents prior to 14.04.2011 i.e. the day when she went missing from her house indicates that she did not have any grievance against the accused. Under pressure, she would not have talked to the accused nor met him.
87. Also her version regarding her going to meet the accused at Metro Station Nangloi on 14.04.2011 where he gave her a stupefied Pepsi and her loosing consciousness does not appear probable and plausible. The Pepsi was first offered to Ms.Naushin who had declined and then taken by her. If the accused had to administer a stupefied cold drink, he would not have offered it to Ms.Naushin first as there was a possibility of her accepting it. Further, Metro Station Nangloi is a busy crowded place in the afternoon and it cannot be accepted that nobody noticed her loosing consciousness or the accused taking her away in such a condition.
88. It may be mentioned here that the hon'ble Delhi High Court in the case reported as Santosh Kumar v. State, 2008 (4) JCC 2919 has observed that no conviction can simply be on the basis of the statement of the witness that he became unconscious because of eating the biscuit or drinking tea offered to him by the accused as there had to be medical evidence to the effect that the victim had become unconscious because of consuming any drug or intoxicative substance etc. mixed with tea or biscuit. No such substance had been recovered from the accused. Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
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89. Further, the version that the accused took her away on Saturday and raped her on Sunday night also does not appear to be correct as 14.04.2011 was a Thursday and 18.04.2011 i.e. the day when the prosecutrix was recovered was a Monday. Also there is no plausible reason shown as to why the accused would wait for a long time and then rape the prosecutrix at night and on the same night the police also arrives when he had ample opportunity to rape her earlier. If the intention of the accused for kidnapping the prosecutrix for raping her was there then there would be nothing to stop him from raping her.
90. Also the version of the prosecutrix that she was recovered from a village and then taken to the Police Station also appears to be false as it is clear from the evidence of PWs 11 and 12 that she was recovered and the accused was arrested from the Waiting Hall of New Delhi Railway Station on 18.04.2011. This finds corroboration in the recovery memo of the prosecutrix (Ex.PW5/B), arrest memo of the accused (Ex.PW11/A) as well as the identified person form (not proved by the prosecution). Her claim that the police had told her so depose also appears to be false.
91. In the light of the aforesaid nature of deposition of the prosecutrix, PW5, who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
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evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
92. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases
487.
93. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material points with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix knew the accused prior to the incident. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime. (Reliance can be placed upon the judgment of the hon'ble Supreme Court reported as Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC).
Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
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94. If one integral part of the story put forth by a witness- prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
95. It is clear that the prosecutrix had willfully accompanied the accused and was a consenting party.
96. Consequently, no inference can be drawn that the accused is guilty of the charged offence under section 376 of the IPC as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.
SECTIONS 363 AND 376 OF THE IPC
97. In the present case, the charge sheet was filed under sections 363 and 376 of the IPC and the charge was framed under sections 363 and 376 of the IPC.
98. For proving the offence under section 363 IPC, the first and foremost requirement of the prosecution is to prove that the prosecutrix was a minor on the date of the commission of the offence.
Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
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99. Therefore, as discussed above, it can be said that the age of the prosecutrix was below 18 years which makes her a minor.
100. The hon'ble Delhi High Court in Vivek Kumar @ Sanju and another v. The State and another Crl. M.C. No. 3073-74/2006 decided on 23.2.2007 took similar view. Following observations in that judgment are of some interest:
"There is no law which prohibits a girl under 18 years from falling in love with someone else. Neither falling in love with some body is an offence under IPR or any other penal law. Desiring to marry her love is also not an offence. A young girl who is in love has two courses available to her one is that she should marry with the consent of her parents after obtaining the consent of her parents. If her parents do not agree to persuade them or to wait for attaining the age of majority and then exercise her right as a major to marry the person of her own choice. However, this is possible only when the house of her parents where she is living has congenial atmosphere and she is allowed to live in peace in that house and wait for attaining age of majority. This might have been the reason in the mind of petitioner No.2 when she told her father that she was in love and wanted to marry Sanju, but the response of father when daughter confided in him, created the fear in the mind of petitioner no.2 Her father slapped her and told that her action would malign the religion and bring danger to the religion. He, even threatened to kill her and marry her off to some rich person. When once such a threat is given to a girl around 17 years of age, who is in love, under such circumstances she has a right to protect her person and feelings against such onslaught of her relatives even if the onslaught is from her own parents. Right to life and liberty as guaranteed by the Constitution is equally available to minors. A father has no right to forcibly marry off his daughter, who is below 18 years against her wishes. Neither he has right to kill her, because she intends to marry out of her religion. If a girl around 17 years of age runs away from her parents house to save herself from the onslaught of her father or relatives and joins her lover or runs away with him, it is no offence Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
State versus Kapil -:: Page 48 of 62 ::-
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either on the part of the girl or on the part of boy with whom she ran away and married.."
101. Similarly in Bhagwan Singh Ors. v. State & Anr. 2006 (3) JCC 2050, the High Court of Delhi had quashed the proceedings. In this case, the following portion from the judgment of S. Vardarajan v. State of Madras, 1965 SCR (1) 243 was quoted. I am privileged to quote the same as below:-
"But when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) from the house of the relative of father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub-Registrar's office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have 'taken' her out of the keeping of her lawful guardianship, that is, the father. The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanies him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him.."
102. In the present case also, there is no material on record that the prosecutrix was taken or enticed or allured or forced by the accused. There is also no material on record to show that accused deceitfully took away the Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
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State versus Kapil -:: Page 49 of 62 ::-
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prosecutrix.
103. Proof of such intention is vital for the purposes of sections 363 and 376 IPC as pointed out by the Supreme Court in Faiyaz Ahmad v. State of Bihar, 1990 Cr.L.J. 2241 (SC). If a girl leaves the house of her parents of her own and is an adult, and accompanies a person to various places, no offence is committed under this section or any other section. Reliance can be placed upon the judgment reported as Om Parkash v. State of Haryana, 1988 Cr.L.J. 1606 (P&H).
104. In another case reported as Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, in para 25 it was observed by Hon'ble Supreme Court of India as under:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted......"
105. This brings me to the final question as to whether it was she who had gone of her own or had been enticed away by the accused. In this regard it is no doubt true that in her statement before this Court she has stated that she had been taken away by the accused after he administered some intoxicating substance in Pepsi to her but in her statement under section 164 of the Cr.P.C., she has deposed that she had herself gone with the accused voluntarily and without any threat, pressure, influence or coercion and lived with him.
Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
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106. However, as the prosecutrix was a minor at the time of the alleged offence under section 363 of the IPC, her going herself with the accused becomes immaterial.
107. Accordingly, the accused is liable to be convicted for having committed offence under section 363 of the IPC.
108. Section 375 of the IPC enumerates six circumstances wherein the sexual intercourse committed amounts to rape which read as under:
First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly - With or without her consent, when she is under sixteen years of age.
109. It is also clear from the evidence of PW5 that she had herself gone with the accused with her free consent and without any threat, pressure, coercion or influence. In these circumstances, in the absence of an active role having been played by the accused, the allegations leveled against the accused stand ruled out altogether. There is no material to Sessions Case Number : 84 of 2013.
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conclude that the accused had used force or raped her. The evidence of the prosecution especially the prosecutrix not against the accused. She also appears to have reached the age of discretion. However, it also cannot be ignored that she was of the age of discretion and sufficient maturity.
110. Here, I would like to incorporate the observations made by the Hon'ble Supreme Court in S.Vedarajan v. State of Madras AIR 1965 SC
942. In para 9 of the judgment it was observed as under:-
"It must, however, be borne in mind that there is a distinction between taking and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S.361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused persons. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.."
111. It can be assessed from the evidence of the prosecutrix, a minor, that she had gone with her free will and consent with the accused as she did not raise any alarm anywhere nor asked for help nor told anyone at any point of time that she had been kidnapped or raped.
112. Under these circumstances, no inference can be drawn that the Sessions Case Number : 84 of 2013.
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accused is guilty of raping her. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. There is nothing incriminating on the record against the accused in respect to the offence under section 376 of the IPC.
113. The accused merits to be acquitted for the offence under section 376 of the IPC.
CONCLUSION
114. Since the prosecutrix as PW5 have not deposed anything incriminating against the accused in respect of the offence under section 376 of the IPC as there are overwhelming contradictions and serious unexplained inconsistencies in her different statements, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused under section 376 of the IPC and the prosecution story in this regard does not inspire confidence and is not worthy of credence.
115. Where the prosecutrix had sufficient opportunity not only to run away from the accused but she could have taken the help of the passers by and medical evidence also indicated that there were no injuries on the person of the prosecutrix and there is no corroborative forensic evidence, it can be said that the offence under section 376 of the IPC was not committed.
Sessions Case Number : 84 of 2013.
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116. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy regarding the veracity of the prosecution case and the prosecution has failed to establish rape by the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
117. However, the charge for the offence under section 363 of the IPC has been successfully proved by the prosecution against the accused that he had kidnapped the minor prosecutrix.
118. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
119. Applying the above principles of law to the facts of present case, it is evident that the identity of the accused Mr.Kapil stands established. He was known to the prosecutrix even prior to the incident. It also stands Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
State versus Kapil -:: Page 54 of 62 ::-
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established that the prosecutrix was a minor at the time of the alleged incident i.e. 14.04.2011. It also stands established that the accused had not raped her as there is no incriminating evidence against the accused. It also stands proved that the minor prosecutrix was taken out of the custody of her parents by the accused and she was recovered from his custody by the police.
120. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish rape. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident of rape ever took place.
121. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was raped.
122. Also, from the foregoing discussion, it is clear that as the prosecutrix was a minor at the time of the alleged offence under section 363 of the IPC, her going herself with the accused becomes immaterial and the accused is liable to be convicted for having committed offence under section363 of the IPC.
123. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused for the offence under section 376 of the IPC and the prosecution has successfully brought home the charge against the accused for the offence under section 363 of the IPC. Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
State versus Kapil -:: Page 55 of 62 ::-
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124. Accordingly, Mr.Kapil, the accused, is hereby acquitted of the charge under section 376 of the IPC and convicted for the offence under section 363 of the IPC.
125. It would not be out of place to mention here that today there is so much public outrage and a hue and cry being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the evidence of the prosecutrix is unreliable and untrustworthy, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
126. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
127. Let the accused now convicted for having committed offence under section 363 of the IPC be heard on the quantum of sentence to be awarded to him.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 25th day of April, 2013. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.
************************************************************* Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
State versus Kapil -:: Page 56 of 62 ::-
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
State
Versus
Mr.Kapil son of Mr. Vimal Kumar,
Resident of C-212, Camp No.2,
Nangloi, Delhi.
First Information Report Number : 102/11
Police Station Nangloi,
Under sections 363/376 of the Indian Penal Code.
Date of filing of the charge sheet before : 14.07.2011.
the Court of the Metropolitan Magistrate Date of receipt of file after committal : 25.08.2011. In the Sessions Court Date of transfer of the file to this Court : 12.02.2013. ASJ (SFTC)-01, West, THC, Delhi. Date of judgment : 25.04.2013. Arguments on sentence concluded on : 25.04.2013. Date of order on sentence : 25.04.2013.
Appearances: Mr.Anil Kumar, Additional Public Prosecutor for the State.
Convict on bail with counsel, Mr.Rakesh Raj Murti. Ms.Sadhna Singh, counsel for the Delhi Commission for Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
State versus Kapil -:: Page 57 of 62 ::-
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Women.
******************************************************** ORDER ON SENTENCE
1. In pursuance of judgment dated 25.04.2013 as passed by this Court convicting the accused namely Mr.Kapil for offence punishable under section 363 of the Indian Penal Code (hereinafter referred to as the IPC), I have heard the Additional Public Prosecutor for the State as well as the counsel for the convict on the point of quantum of sentence to be awarded to the convict and also perused the case record.
2. The Additional Public Prosecutor for the State has requested for the maximum sentence to be imposed upon the convict submitting that he does not deserve any leniency keeping in view the offence committed by him.
3. The convict and his counsel, on the other hand, have requested for a lenient view to be taken against him and for his release on probation as the convict hails from a modest family. He is an unmarried young man, aged about 26 years. He works as scrap dealer(Kabaadi wala). He is the sole bread winner of his family which comprises of his aged mother. His father expired about 3 years ago. He has remained in custody w.e.f. 18.04.2011 to 23.11.2011. He is a first offender and has never committed any offence earlier. He has assured that he shall not commit any offence in future.
4. Considering the aforesaid submissions from both the sides, the family circumstances of the convict and perusing the case record, I consider Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
State versus Kapil -:: Page 58 of 62 ::-
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it proper to award a substantive sentence upon the convict. The prosecutrix, a minor, has been taken away from the custody of her parents by the convict.
5. Keeping in view the offence committed by the convict, I am not inclined to take a lenient view against him and release him on probation. He has kidnapped a minor girl who was vulnerable and an easy prey. He has violated the very sanctity of the relationship between them.
6. I am of the considered opinion that the convict should be awarded a substantive, stern and firm sentence because he has kidnapped the minor prosecutrix.
7. The object of sentence should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. The welfare and interest of other women in the society also needs to be protected for the reason that if the convict is released, they may be subjected by him in a similar offence with them.
8. In AIR 2000, Supreme Court, 1470, the Supreme Court held has under:
Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
State versus Kapil -:: Page 59 of 62 ::-
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Socio-economic, status, religion, race caste or creed o the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.
9. In the present case, the convict has kidnapped a minor girl taking advantage of a helpless and defenceless vulnerable prey.
10. Recently, crime against women generally and rape in particular is on the increase and the society also appears to be concerned for the honour of women. In this backdrop, this Court is required to treat the issue with more sensitivity. The object of sentence is not only required to be reformative but it should also be punitive, preventive and deterrent. The offences against women are on a rise and there is an urgent need to curb this tendency by awarding deterrent punishment to perpetrators of this grave offence.
11. Therefore, considering these aggravating facts, I hereby sentence Mr.Kapil, the convict for offence under section 363 of the IPC to simple imprisonment for the period already undergone by him in custody during the investigation and trial i.e w.e.f 18.04.2011 to 23.11.2011 and a fine in the sum of Rs.5,000/- in default of payment of which, he shall undergo simple imprisonment for a period of one year.
12. Benefit of section 428 of the Code of Criminal Procedure shall Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
State versus Kapil -:: Page 60 of 62 ::-
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be given to the convict for the period already undergone by him during the trial, as per rules.
13. The entire amount of fine, if realized, is awarded to the prosecutrix as compensation for the benefit of the prosecutrix. The fine has been paid by the convict vide receipt no. 000991404 dated 25.04.2013.
14. The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
15. A copy of the judgment dated 25.04.2013 and a copy of the or- der on sentence dated 25.04.2013, duly attested, besides the complete set of copy of the entire relevant case record on CD, in compliance of directions of the High Court, be given to the convict, namely, Mr.Kapil, free of cost immediately.
16. A copy of the judgment dated 25.04.2013 and a copy of the or- der on sentence dated 25.04.2013 also be given to the Additional Public Prosecutor, as requested.
17. After completion of the formalities and expiry of the period of Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
State versus Kapil -:: Page 61 of 62 ::-
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limitation, the ahlmad is directed to consign the file to the record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 25th day of April, 2013. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
******************************************************** Sessions Case Number : 84 of 2013.
Unique Case ID Number : 02401R0311392011.
FIR No. 102/2011, Police Station Nangloi, Under sections 363/376 of the Indian Penal Code.
State versus Kapil -:: Page 62 of 62 ::-