Delhi District Court
State vs . Vinod Kumar Etc. Page No. 1 No. 48 on 25 February, 2013
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IN THE COURT OF MS. POONAM A. BAMBA
ADDITIONAL SESSIONS JUDGE-01
PATIALA HOUSE COURT : NEW DELHI
In re:
Session Case No. 04/12
State v. (1) Vinod Kumar S/o Sh. Maam Chand
R/o H. No. 4, Gajju Katra,
Shahdara, Delhi.
(2) Suresh S/o Sh. Sukha Ram
R/o F-80, Prithvi Raj Lane,
New Delhi.
(3) Indra W/o Sh. Suresh
R/o F-80, Prithvi Raj Lane,
New Delhi.
(4) Ashok Kumar S/o Sh. Maam Chand
R/o H. No. 4, Gajju Katra,
Shahdara, Delhi.
(5) Vinod Handa @ Vinod Aggarwal
S/o Sh. Sant Lal
R/o F1/217, Nand Nagari, Delhi.
FIR No. 258/01
u/S. 406/498A/366/494/506/120B IPC
PS Tughlak Road
Date of Institution : 08.03.2004
Date of arguments : 23.02.2013
Date of judgment : 25.02.2013
State Vs. Vinod Kumar etc. Page No. 1 No. 48
FIR No. : 258/01, PS : Tughlak Road
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JUDGMENT
1.0 The prosecution case is that the prosecutrix filed a complaint that accused Vinod Kumar recommended the match of accused Vinod Handa (he shall be referred to as "VH" for the purpose of convenience, as name of both the accused persons is the same) for her telling that he is in Government Service. On his recommendation, her family married her to accused VH, r/o Palam Village, Delhi on 16.06.1994 as per Hindu rites and ceremonies at Ambala. Accused VH with his mother Smt. Murti Devi, his friends Parkash, accused Vinod Kumar, Sanjay Rathi, Kishan Kumar, Manoj and others were present in the wedding. However, subsequently it was revealed that she was cheated into marriage with accused VH for dowry. After marriage, accused VH alongwith his associates brought her alongwith the dowry articles to Khan Market, Delhi. Accused VH vanished after dropping her at Khan Market State Vs. Vinod Kumar etc. Page No. 2 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 3 ::
without telling anything; at night, instead of accused VH, accused Vinod Kumar came to the room in which she was put up and forced himself upon her. When she resisted the same, accused Vinod Kumar, his sister Indra and sister's husband namely Suresh threatened to kill her, in case she raised alarm.
1.1 The complaint further mentions that accused Vinod Kumar even took indecent photographs of prosecutrix and when she started crying, accused Vinod Kumar told her that she would never get to live with accused VH, as he had purchased her from accused VH;
and that she would have to live as his (accused Vinod Kumar's) wife; she was kept locked in the said house for 15 days and was continuously threatened and blackmailed by showing her nude photographs. When she stopped eating, the accused Vinod Kumar, his brother, sister and others asked her to marry accused Vinod Kumar and that they will marry accused VH to State Vs. Vinod Kumar etc. Page No. 3 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 4 ::
someone else. They even took her to Tis Hazari Courts one day where accused VH got married. Accused VH also asked her to get married to accused Vinod Kumar. 1.2 It further mentions that subsequently, on 04th July, 94, accused Vinod Kumar alongwith his relatives and friends etc. called a priest and got their marriage solemnized by taking pheras in his friend's house at Sarojini Nagar. After that accused Vinod Kumar started living with her as her husband in house no. F-12, NDMC, Prithvi Raj Lane, Near Lok Nayak Bhawan, New Delhi, where they stayed for about 18 months. Accused Vinod Kumar started treating her as his wife against her wishes.
To ensure that she did not escape from the said house accused Vinod Kumar's sister Indra and Jija Suresh used to remain at house to keep surveillance on her, in the absence of accused Vinod Kumar.
1.3 Thereafter, accused Vinod Kumar took her to a State Vs. Vinod Kumar etc. Page No. 4 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 5 ::
house at Ghaziabad and then to his parental house at Bholanath Nagar, Shahadara, Delhi. During this period, accused Vinod Kumar got her aborted twice. He also took her to many places where he forcibly photographed her. When she protested against all this, accused Vinod Kumar threatened to kill her and also to send her nude photographs to her relatives. Out of fear, she continued to tolerate all these atrocities. She did not disclose ill- treatment meted out to her even to her brother, for the sake of family honour. She was continuously raped for about seven years by accused Vinod Kumar and was blackmailed by him on account of her nude photographs; all the cash, jewellery and other articles given to her in dowry were also snatched by the accused Vinod Kumar. 1.4 It further mentions that when the prosecutrix started remaining unwell, accused Vinod Kumar on 20.03.2001 gave her beatings and turned her out of house. He even threatened her, in case she dared to State Vs. Vinod Kumar etc. Page No. 5 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 6 ::
approach the police. She approached P.S. Farsh Bazar, Shahadara but no action was taken. Thereafter, she gave a typed complaint to CAW Cell, Nanakpura. The accused Vinod Kumar even threatened prosecutrix's brother that in case they took any action he would send nude photographs of the prosecutrix to his relatives. 1.5 After investigation, charge sheet against the accused persons was filed u/Ss 406/498A/356/494/506 and 120-B IPC.
2.0 Vide order dated 01.04.2004, the Ld. Predecessor Court framed charge u/Sec. 120B IPC and also under Sections 493, 496 and Section 313 r/w Section 120-B IPC against all the accused persons.
2.1 Vide said order, accused Vinod Kumar and accused VH were also charged with offences punishable State Vs. Vinod Kumar etc. Page No. 6 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 7 ::
U/Ss 366 and 376 read with Section 120B-IPC. Both the accused were also charged with offence punishable u/s 506 r/w section 34 IPC.
2.2 Accused Vinod Kumar was further charged with offence punishable U/S 495 Cr.P.C. 3.0 Prosecution examined 10 witnesses. PW1 is the prosecutrix herself, PW3 Dropdi, is the mother of prosecutrix, PW5 Kishan Kumar, is the brother of prosecutrix and PW9 Geeta W/o Kishan Kumar is bhabhi of prosecutrix. PW2, Govind Kumar Jha, is the priest who performed alleged marriage of accused VH with prosecutrix at Ambala and PW7, Vinod Dubey is the priest, who performed marriage of prosecutrix with accused Vinod Kumar at Delhi. PW4 Inder singh and PW6 K.C. Dayal are the public witnesses, who lived in Khan Market area. PW8 and PW10 are the Police officials. State Vs. Vinod Kumar etc. Page No. 7 No. 48
FIR No. : 258/01, PS : Tughlak Road :: 8 ::
4.0 Statements of accused persons u/Sec. 313 Cr.P.C were recorded by the Ld. Predecessor Court on 20.08.2009 and thereafter, further statement of u/s 313 Cr. P.C. was recorded on 24.01.2013, 04.02.2013 and 12.02.2013.
5.0 Accused Vinod Kumar produced four witnesses in his defence. The said witnesses are DW1 HC Mahesh Tyagi, DCP, CAW Cell, DW2 HC Sushil Kumar of PS Farsh Bazar, Shahdara, DW3 is his wife Geeta and DW4 Dr. C.P. Singh, Assistant Director, Physics, FSL Rohini. 5.1 Accused VH himself stepped into the witness box in his defence, as DW5.
6.0 I have heard Ld. Addl. P.P. Shri Salim Khan and Sh. R. D. Mehra, Advocate for accused Vinod Kumar, Suresh, Ashok Kumar and Indra and Sh. Ramlal, Advocate on behalf of accused VH.
State Vs. Vinod Kumar etc. Page No. 8 No. 48
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Sections 366, 376/120B and Sec. 506/34 IPC - 7.0 Accused Vinod Kumar and VH are charged with the offences punishable under Sections 366, 376/120B IPC and 506/34 IPC. Prosecutrix has deposed that after her marriage with accused VH on 19.06.1994 at Ambala, she was brought to accused Indra Devi's (sister of accused Vinod Kumar) Flat No. 80, NDMC, Lok Nayak Bhawan, Prithvi Raj Road, Khan Market, New Delhi;
thereafter, accused VH and others left; accused Vinod Kumar stayed with her in her room at night and forcibly had sexual intercourse with her while he was under the influence of liquor. He even gave her beatings; that this state of affairs continued in the said flat for 15 days; thereafter, on 04.07.1994, accused Vinod Kumar forcibly got married to her at his friend's house at Sarojini Nagar, Railway Colony, New Delhi; the said marriage was attended by accused VH, Indra Devi, Sanjay Rathi, Malti Devi and other friends of accused Vinod Kumar; none State Vs. Vinod Kumar etc. Page No. 9 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 10 ::
from her family was present at the time of that marriage. During her deposition, prosecutrix was allowed to put in writing, what she could not state orally. Vide Ex.PW1/A, prosecutrix also stated that accused would have sexual intercourse with her 3 - 4 times a day and would even have anal intercourse, causing her great pain. 7.0.1 Prosecutrix/PW1 has further deposed that after this marriage, she alongwith accused Vinod Kumar started living as husband and wife in F-12, Khan Market, New Delhi, which was taken on rent with the help of accused Indra Devi, who lived in the same locality. They lived in the said house for about 18 months; even during this period accused Vinod Kumar would misbehave with her under the influence of liquor and would threaten her;
she had even conceived during this period, but, her pregnancy was forcibly got terminated at Nursing Home of Dr. Sharma, on the pretext that he had not been legally divorced from his first wife.
State Vs. Vinod Kumar etc. Page No. 10 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 11 ::
7.0.2 Prosecutrix has also deposed that thereafter, accused Vinod Kumar took her to House No. 1263, Balmiki Nagar, Chhota Kalan at Ghaziabad, where they stayed for about two years i.e. till March, 2001; accused Vinod Kumar then brought her to his parents' house at Shahadara, Delhi, but his mis-behaviour continued. One day, accused Vinod Kumar after consuming liquor threw the same on her and then left her outside police station Farsh Bazar and went away; she went inside the police station but, her complaint was not registered as accused Vinod Kumar's cousin namely Krishan Kumar at that time was posted as DCP. From the police station, she was taken away by accused Ashok Kumar and one Amardeep (brother-in-law of the accused Vinod Kumar). Her jewellery and clothes were retained by accused Vinod Kumar after throwing her out of the house in March, 2001. She lodged a complaint vide DD no. 16A at PS Farsh Bazar on 05.08.2001. Thereafter, she made a State Vs. Vinod Kumar etc. Page No. 11 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 12 ::
complaint to CAW Cell, Nanak Pura; she also filed a complaint with PS Tughlak Road. As her complaint was not registered, she approached Commissioner of Police, Delhi, and filed complaint Ex.PW1/B, on which the endorsement was made by Commissioner of Police to DCP, New Delhi for inquiry and necessary action. She has also deposed that on the complaint, her statement Ex.PW1/D was recorded by the ACP on 30.10.2001. 7.1 From the testimony of prosecutrix, it is evident that she did not lodge any complaint with any authority and did not even inform any of her family members about being left by accused VH and her harassment / sexual exploitation by accused Vinod Kumar during the long period of almost seven years from June 1994 to May 2001. In explanation as to why no complaint was lodged by her all this while, in her cross-examination, the prosecutrix has stated that she could not lodge any report or write any letter/telegram to any authority/any of State Vs. Vinod Kumar etc. Page No. 12 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 13 ::
her relatives, because of the pressure tactics of the accused persons; she was kept confined in the house of accused Indra, sister of accused Vinod Kumar's, S/o Mam Chand and was not allowed to go out of the house; accused Vinod Kumar always used to be with him, whenever they left the house; and that she never went alone anywhere, even when the accused was in his office; and also because she was threatened that her obscene photographs would be shown to her relatives. The version of the prosecutrix is belied by her own admission in her cross-examination as well as testimony of other prosecution witnesses PW4 Inder Singh and PW6 K. C. Dayal, and other evidence, which has come on record, as discussed in paras infra.
7.2 The prosecutrix has admitted in her cross-
examination that the accused Vinod Kumar is working as UDC with Railways and his office timings are from 10.00 a.m. to 05.00 p.m. Thus, once the accused Vinod Kumar State Vs. Vinod Kumar etc. Page No. 13 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 14 ::
left for office, the prosecutrix was alone and free to move about. No explanation has come forth, as to what stopped her from running away and lodging a complaint during seven years' period. This is so, when admittedly, the prosecutrix's own sister had been residing in Delhi since prior to 1994. Although, in her complaint Ex.PW1/B, the prosecutrix has stated that the accused Indra and accused Suresh used to keep surveillance on her, when she lived in Khan Market, but, there is not a whisper in this regard, in the prosecutrix's deposition. Moreover, no explanation has come forth as to what prevented prosecutrix from escaping when they lived separately at Ghaziabad for about 4 - 5 years.
7.3 PW4 Inder Singh, (the President of Jan Kalyan Samiti/ Residents' welfare Association at Prithvi Raj Lane), testified on 01.04.2009, that he was running the business of cold drinks at Khan Market, for last about 15 years. He identified accused Vinod Kumar and prosecutrix in the State Vs. Vinod Kumar etc. Page No. 14 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 15 ::
court and stated that they were residing at F-12, Khan Market, in the year 1993-94. From their conduct he could make out that they were living as husband and wife. In his cross-examination, PW4 admitted that accused Vinod Kumar was employed with Railways and used to leave his residence in the morning; prosecutrix used to be alone at home in his absence; she used to move around freely in the locality. He also stated that even neighbours and her family members used to visit prosecutrix at her residence. He also deposed that prosecutrix never lodged any complaint with the Residents' Welfare Association or any person of the locality that she was being illegally confined or detained at F-12, Khan Market, New Delhi, by the accused persons. PW4 admitted letter Ex.PW4/DA vide which Kailash Dayal, Maha Sachiv of the Jan Kalyan Samiti, Prithvi Raj Lane, had certified that prosecutrix was living as the wife of accused Vinod Kumar in House No. F-12, for about 18 months i.e. from 18.07.1994 to December, 1995; and that the residents of the locality State Vs. Vinod Kumar etc. Page No. 15 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 16 ::
were ready to make a statement in this regard. PW4 also admitted his signatures on that letter at point A, as the President of the Society. Ex.PW4/DA bears thumb impressions and signatures of various persons / residents. 7.3.1 PW4's testimony, thus, belies prosecutrix's version that she was kept confined and therefore, could not approach anyone / police and that none of her relatives and family members visited her during this period of seven years.
7.4 PW6 K. C. Dayal, the General Secretary of Jan Kalyan Samiti, Prtihvi Raj Lane, deposed on 02.04.2009 that he was residing at F-12, Double Storey, Prithvi Raj Lane, New Delhi, for about 7 - 8 years. He identified accused Vinod Kumar and prosecutrix as the persons, who were living at F-12, Triple Storey, Prithvi Raj Lane, New Delhi, in the year 1994-95 as husband and wife. He clarified that he inferred the relationship between them State Vs. Vinod Kumar etc. Page No. 16 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 17 ::
from their day to day activities. In his cross-examination, PW6 stated that from the behaviour / activities of the prosecutrix, he never felt that she had been abducted or was living under any compulsion or threat. He also admitted that Prithvi Raj Lane is a VIP area and the police remains posted there; and that it is also having two markets in the vicinity, which are frequented by large number of persons.
7.4.1 Thus, from the testimony of prosecution's own witnesses i.e. PW4 and PW6, it is established that during her stay at F-12, Triple Storey, Prtihvi Raj Lane Khan Market, the prosecutrix was seen moving around freely in the locality; the neighbours and her relatives also visited her at the said house, where she stayed for about 18 months. The same belies her version that she could not approach anyone/lodge complaint, as she was kept confined. Moreso, in view of her own admission that the accused Vinod Kumar used to leave for work prior to State Vs. Vinod Kumar etc. Page No. 17 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 18 ::
10.00 a.m. and would return after 05.00 pm. Subsequently, the prosecutrix even lived in Ghaziabad, much away from the locality (Khan Market), where accused's sister also lived. The prosecutrix has failed to explain as to what prevented her (even in Ghaziabad) from lodging any complaint or from running away, if she had been kidnapped and was kept confined against her wishes.
7.5 It may also be mentioned that the prosecutrix did not dispute in her cross-examination that she is seen with accused Vinod Kumar at some hill station in photographs Ex.PW1/DA. Although, she denied that her family members including her Jija Suraj Bhan had accompanied them. It is noteworthy that these hill station photographs are part of photographs placed on record by prosecution itself as Ex.PW1/F. Same show that the prosecutrix was even visiting hill stations with accused Vinod Kumar. Even otherwise, in photographs State Vs. Vinod Kumar etc. Page No. 18 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 19 ::
Ex.PW1/F, the prosecutrix is seen happily posing with accused Vinod Kumar and his family members. Same further demonstrates that prosecutrix was living with accused Vinod Kumar out of her own free will. 7.6 Further, prosecutrix's own Bhabhi Geeta, PW9, in her cross-examination has stated that "After the marriage of prosecutrix with VH, when we came to know through accused VH that prosecutrix (name withheld) was residing with Vinod Kumar as husband and wife, thereafter, no correspondence or interaction was done by prosecutrix (name withheld) with our family members or vice versa." From the same not only, it is evident that the family members of the prosecutrix were aware about the prosecutrix living with accused Vinod Kumar as husband -
wife. But also that, they chose not to contact prosecutrix, after coming to know the said fact. Nor did prosecutrix contact them, which fact has also come in prosecutrix's own testimony, where she has stated that she did not State Vs. Vinod Kumar etc. Page No. 19 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 20 ::
contact her family members at Ambala till registration of FIR. If the prosecutrix were forcibly kept by accused Vinod Kumar, nothing prevented her family members from taking immediate action in the matter.
8.0 The falsehood of the prosecutrix's version that subsequently, accused Vinod Kumar even forcibly got married to her at his friend's house at Sarojini Nagar, Railway Colony, New Delhi, on 04.07.1994; and that none from her family was present at the time of that marriage, is also exposed by the testimony of PW7 Vinod Dubey, the priest of Jharkhandi Shiv Mandir, Bholanath Nagar, Shahdara, Delhi, and the discrepancies in the versions of prosecutrix/PW1 and her mother/PW3.
8.1 PW7, the priest Vinod Dubey has deposed that in the year 1994, prosecurtix, her mother Dropdi alongwith one Vinod Kumar had visited him for getting some dates for the marriage of prosecutrix; he had State Vs. Vinod Kumar etc. Page No. 20 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 21 ::
suggested 2 - 3 dates in June and July, 1994 for their marriage; they had again visited him in the second week of July on Monday, again clarified that it was either on the first or second Monday (of July), and had invited him for solemnization of marriage of prosecutrix with accused Vinod Kumar at Sarojini Nagar. He also deposed that persons from both the sides were present at the time of marriage.
8.1.1 PW7 identified both, the accused Vinod Kumar as well as the prosecutrix in the court as well as in photographs Ex.PW1/F. 8.1.2 In his cross-examination, PW7 stated that prosecutrix and her mother had visited the temple in the year 1994 even prior to meeting him for the dates of marriage; even accused Vinod Kumar used to visit the temple and Dropdi (PW3) and prosecutrix used to come to meet Vinod Kumar; such meetings were even objected State Vs. Vinod Kumar etc. Page No. 21 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 22 ::
to by the temple staff; on which, they had disclosed that they were meeting in order to fix the marriage of accused Vinod Kumar and prosecutrix. PW7 also stated in his cross-examination that he did not find that the marriage of the prosecutrix with accused Vinod Kumar was being performed forcibly or under any pressure, threat or restraint; rather, the prosecutrix's own mother Dropdi Devi had performed her Kanyadaan. Same belies the version of the prosecutrix that she was forced into marriage by accused Vinod Kumar and that no-one from her side was present at that time.
8.1.3 PW7's deposition further exposes the falsehood of the prosecutrix's version (in her cross-
examination), where she refused point blank having seen Jharkhandi Mandir. She stated that - "I have not seen Jharkhandi Mandir, Shahdara. It is wrong to suggest that I used to meet Vinod Kumar in Jharkhandi Mandir alongwith my mother or that we were whisked away by State Vs. Vinod Kumar etc. Page No. 22 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 23 ::
the staff of that temple".
9.0 The lame explanation given by the prosecutrix that she could not contact any of her relatives or lodge any complaint with police/any other authority, as she was always threatened and blackmailed by accused Vinod Kumar that in case she did so, he would show her nude photographs to her family members; and that he would ensure that her nieces did not get married, by defaming her, also does not cut much ice. Her story of nude photographs also stands exposed by the contradictory versions of prosecution witnesses, more particularly the mother of the prosecutrix Smt. Dropdi, PW3.
9.1 PW3 Dropdi (prosecutrix's mother) in her examination in chief stated that on 22.06.1994, accused VH came to Ambala with another person and showed her certain nude photographs of her daughter (prosecutrix) with accused Vinod Kumar. He also told her that he will State Vs. Vinod Kumar etc. Page No. 23 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 24 ::
not live with prosecutrix any more, as she has relations with accused Vinod Kumar,. He also threatened her (PW3) that in case she made a complaint to the police he would show those photographs and would not let her grand- daughter get married. PW5, Kishan Kumar, brother of the prosecutrix also deposed on the similar lines. However, in his cross-examination, PW5 (son of PW3) denied that his mother PW3 was at home, when accused VH visited their house at Ambala alongwith 3 - 4 persons, and showed him the photographs of his sister/prosecutrix in compromising position with accused Vinod Kumar. 9.1.1 Further, it is interesting to note that PW3 also did a somersault in her cross-examination. She stated in her cross-examination that she did not remember whether she mentioned in her examination in chief that VH visited her at Ambala on 22.06.1994 and showed prosecutrix's nude photographs with accused Vinod Kumar. When she was confronted with her own statement State Vs. Vinod Kumar etc. Page No. 24 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 25 ::
in examination-in-chief, she categorically stated in her cross-examination - "No-one had ever shown me the nude photographs of my daughter. Vol. Can anyone show nude photographs of a daughter to the mother." Even PW9 Geeta, Bhabhi of the prosecutrix in her cross- examination stated that she had not seen any nude photographs of prosecutrix in the year 1994 or till date. 9.2 The above evidence shreds apart the prosecutrix's version in her complaint Ex.PW1/B that although she was continuously raped for seven years but, she could not disclose the same to her family members out of fear and family honour, as she was threatened / blackmailed on account of her nude photographs. 9.3 It is noted that with apalling audacity, the prosecutrix has given different versions at different points of time in her desperate attempt to somehow stop accused Vinod Kumar, from getting out of relationship State Vs. Vinod Kumar etc. Page No. 25 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 26 ::
with her/ensure action against him. Initially, in her complaint recorded vide DD No. 16A, dated 05.08.2001, PS Farsh Bazar, Shahdara, Delhi, which was proved by DW2 HC Sushil Kumar and which is Ex.DW2/A and in her complaint to DCP, CAW Cell Ex.PW1/DB, the prosecutrix claimed herself to be the wife of accused Vinod Kumar, having been duly married to him on 04.07.1994; there is no mention of her marriage to accused VH. In these complaints, the prosecutrix has narrated her woes of being harassed by her husband (accused Vinod Kumar) and his family members on account of dowry; and that she had been adjusting and living with him, despite her torture at his / his relatives' hands; that she was ultimately thrown out of the matrimonial home on 19.03.2001/05.08.2001 and all her jewellery and a sum of more than Rs.1,00,000/-/Rs.1,40,000/- given by her mother for purchase of household articels, were retained by accused Vinod Kumar; since then she has been compelled to live with her mother, brother and other State Vs. Vinod Kumar etc. Page No. 26 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 27 ::
relatives, who are bearing her expenses. 9.3.1 In Ex.DW2/A, the prosecutrix has also stated that only after her marriage with accused Vinod Kumar, she came to know about his previous marriage. In Ex.PW1/DB, the prosecutrix has stated that although, accused Vinod Kumar told her at the time of marriage with her (on 04.07.1994) that he had already divorced his first wife. But, subsequently she came to know that their divorce took place only on 06.03.1997. But, she continued to live with her husband Vinod Kumar ignoring the same. She has also stated that at her insistence, her husband accused Vinod Kumar again got married to her in a temple on 11.03.1997, in presence of residents of the locality.
9.3.2 In Ex.PW1/B i.e. her subsequent complaint dated 25.10.2001 to Commissioner of Police, which was marked to DCP/New Delhi for necessary action and in Ex.PW1/D, her statement recorded, pursuant thereto on State Vs. Vinod Kumar etc. Page No. 27 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 28 ::
30.10.2001, the prosecutrix changed her version. She, for the first time talked about her marriage with accused VH and thereafter, being left by him with accused Vinod Kumar, in conspiracy with other accused persons; and that she was forcibly kept by the accused Vinod Kumar. 9.3.4 The above facts and circumstances reflect on the credibility of the prosecutrix.
9.4 From the above evidence on record, it is established that since the night of her marriage in the year 1994 with accused VH, prosecutrix lived with accused Vinod Kumar at different places in Delhi and Ghaziabad till the year 2001, out of her own free will. It also stands established that the prosecutrix voluntarily got married to accused Vinod Kumar on 04.07.1994 out of her own volition in presence of her mother and other relatives; her Kanyadaan was carried out by her mother PW3 Dropdi.
State Vs. Vinod Kumar etc. Page No. 28 No. 48
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10.0 It is the defence of accused VH (vide statement u/Sec. 313 Cr.PC) that the prosecutrix was in love with accused Vinod Kumar since 1988; they told him that they have got married at Sarojini Nagar on 04.07.1994 and requested for help. They asked him to take 2 - 3 persons to Ambala and to bring prosecutrix from Ambala to Delhi; at their request he visited Ambala on 17.07.1994; on asking of neighbours, prosecutrix's mother Dropdi Devi pointed towards him as the bride groom and requested him to sit in a small "pooja", which was joined by the prosecutrix. He was never married to prosecutrix.
10.1 Accused VH also stepped into witness box as DW5 and deposed on the same lines. He has stated that he never got married to prosecutrix; he only helped prosecutrix / her family members / accused Vinod Kumar in honorably bringing prosecutrix from Ambala to Delhi.
DW5 has deposed that accused Vinod Kumar used to State Vs. Vinod Kumar etc. Page No. 29 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 30 ::
frequently visit his tuition / coaching Centre and disclosed about his affair with prosecutrix. In the first week of July, 1994, accused Vinod Kumar, prosecutrix and her mother Dropdi Devi had visited his Centre; Dropdi Devi (PW3) also told him about marriage of prosecutrix and Vinod Kumar. They also disclosed that accused Vinod Kumar was already married to one Geeta, who was residing in their neighbourhood in Ambala and that matrimonial dispute/litigation between them was going on. They sought his (DW5's) help to bring prosecutrix from Ambala and assured him that they would take care of rest of the things.
10.1.1 DW5, accused VH further deposed that initially, he was not inclined but, at their repeated insistence, on 17.07.1994, he (VH) alongwith Sanjay Rathi and 2 - 3 persons went to prosecutrix's house at Ambala;
neighbours had started gathering around the house; prosecutrix's mother pointed towards him as the bride State Vs. Vinod Kumar etc. Page No. 30 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 31 ::
groom and he participated in a fake Pooja. Immediately thereafter, he, the prosecutrix alongwith 2- 3 persons left for the railway station and returned to Delhi. In the train itself, the prosecutrix had informed him that they had hired one room in Khan Market and that she should be dropped there. On which, he left the prosecutrix at Khan Market and went back to his own house.
10.2 Accused Vinod Kumar in his statement u/Sec. 313 Cr.PC has himself stated that the prosecutrix was in love with him since prior to his marriage with Geeta; she continued to chase him, even after his marriage; she even pressurised him to file divorce case against his wife Geeta. Prosecutrix continued to live with him, on her own.
He has also stated that in August, 2000, when his son became 12 - 13 years of age, his sister / brothers wanted him to patch up with his previous wife Geeta. At their insistence, he again got married to his ex-wife Geeta, in the year 2000. On which, the prosecutrix got annoyed State Vs. Vinod Kumar etc. Page No. 31 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 32 ::
and concocted the false story and filed false complaints against him and his relatives, who were instrumental in bringing him and his ex-wife Geeta, together. 10.2.1 Accused VH's version of love affair between prosecutrix and accused Vinod Kumar is further substantiated by deposition of DW3, accused Vinod Kumar's earlier wife Geeta. She deposed that the prosecutrix continued with her affair with her husband accused Vinod Kumar; all the efforts to make her understand, went in vain; that the prosecutrix was responsible for ruining her marital life. The suggestions put by Ld. Addl. PP to DW3 in her cross-examination, substantiate DW3's version. The said suggestions are reproduced here - "It is correct that my husband filed a suit against me for divorce... It is correct that in my said reply I made some allegations on prosecutrix(sic). I could not attend the court... Ex-parte decree was passed in the year either in 1995 or in 1996. ... It is correct that my State Vs. Vinod Kumar etc. Page No. 32 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 33 ::
first marriage was broken due to relation of my husband and prosecutrix."
10.2.2 In view of the above, Ex.DW3/A, an inland letter written by DW3 to her aunt, placed on record during her testimony is referred to. In the said letter, which was written by DW3 way back on 03.10.1993, DW3 has detailed the actions of the prosecutrix, ruining her marital life; that prosecutrix even approached Maulvis/did Tona-totka, to wean accused Vinod Kumar away from her; and that even accused Vinod Kumar is mad after the prosecutrix. Ex.DW3/A further supports the version of accused VH.
10.3 From the evidence on record (which would be discussed a little later) it also stands established that the prosecutrix got married to accused Vinod Kumar despite knowing that he was already married to DW3 Geeta in the year 1990; the evidence also exposes the falsehood State Vs. Vinod Kumar etc. Page No. 33 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 34 ::
of prosecutrix's / PW1's version.
10.3.1 In her cross-examination, the prosecutrix admitted that accused Vinod Kumar got married with Geeta on 12.12.1990 and that she alongwith her brother Harlal, his wife and her younger brother, had attended the said marriage. She has also stated that - "Although, I knew that Vinod Kumar had married Geeta on 12.12.1990, yet I volunteered to get married with him on 04.07.1994, at a friend's house in Sarojini Nagar." She, however, stated that she was forced to marry him.
Whereas, in her complaint with PS Farsh Bazar, Shahdara, Delhi, Ex.DW2/A and in the subsequent complaint Ex.PW1/DB, the prosecutrix had stated that only after her marriage with the accused on 04.07.1994 she came to know that the accused Vinod Kumar was already married. 10.4 Further, it is interesting to note that even prosecutrix's mother has given different versions at State Vs. Vinod Kumar etc. Page No. 34 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 35 ::
different points of time. In her cross-examination recorded on 06.12.2005, PW3 Dropdi stated that she did not know whether accused Vinod Kumar was married or whether his marriage took place at Ambala. She also denied that her son Girdhari Lal, his wife and other family members had attended accused Vinod Kumar's marriage with Geeta at Ambala. Whereas, in her cross-examination recorded on a subsequent date i.e. 17.08.2006, PW3 stated that her husband, her elder son Harlal Chawla and his wife and prosecutrix had attended the marriage of accused Vinod Kumar at Ambala although, she could not tell with certainty that the date of his marriage was 12.12.1990.
10.5 Different/contradictory versions of the prosecutrix in her complaints and in her testimony and varying statements made by her mother PW3, from time to time, reflect on the credibility of these witnesses. State Vs. Vinod Kumar etc. Page No. 35 No. 48
FIR No. : 258/01, PS : Tughlak Road :: 36 ::
10.6 Admittedly, accused Vinod Kumar, prosecutrix's brother Girdhari Lal, his wife Geeta and another bhabhi of prosecutrix namely Veena worked in DRM's office, Ambala Cantt. It is also an admitted fact that accused Vinod Kumar used to visit prosecutrix's house, being friendly with her brother/other family members. It has already been established that the prosecutrix was in love with accused Vinod Kumar; their affair continued even after accused's marriage to Geeta.
Accused Vinod Kumar subsequently got transferred to Delhi. Same further lends credence to accused VH's version in defence that he was used by the prosecutrix and accused Vinod Kumar for achieving their end, that is, to honorably bring the prosecutrix to Delhi. The evidence on record, the discrepancies in the versions of PW1 prosecutrix, her mother PW3 and her brother PW5 with respect to pre- marriage negotiations, seeing the boy (accused VH), the arrival of baraat, and date of prosecutrix's marriage with accused VH etc. and State Vs. Vinod Kumar etc. Page No. 36 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 37 ::
testimony of priest, PW2 Govind Kumar Jha in this regard and particularly that he was called on the same day to perform the marriage ceremony (of prosecutrix and accused VH) and had no prior intimation in that regard; and also that the photographs of marriage ceremony Ex.PW1/E indicate that the said ceremony was an instant/small time affair carried out in kitchen/verandah of the house, substantiates the version/ defence of accused VH.
10.6.1 The date of marriage of the prosecutrix with accused VH is given as 16.06.1994 by the prosecutrix in her complaint, Ex.PW1/B and Ex.PW1/D. Whereas, in her examination in chief, she has stated the date of marriage to be 19.06.1994. PW3, the mother of prosecutrix gave the date of prosecutrix's marriage in her examination in chief as 19.06.1994, whereas, in her statement made u/Sec. 161 Cr.PC, which is Ex.PW3/DA, the date of marriage was given as 16.06.1994. PW5 and PW9, the State Vs. Vinod Kumar etc. Page No. 37 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 38 ::
brother and Bhabhi of the prosecutrix, respectively, in their deposition told the date of marriage as 19.06.1994. Whereas, in their statements u/Sec. 161 Cr.PC, which are Ex.PW5/DA and Ex.PW9/DA, respectively, the date of marriage was given as 16.06.1994 and 24.06.1994. This discrepancy assumes significance in view of other evidence on record. It is also noteworthy that even PW2, Govind Kumar Jha, the priest, who performed the said marriage, in his statement u/Sec. 161 Cr.PC, which is Ex.PW2/DA, stated that the marriage of accused Vinod Kumar with prosecutrix was performed on 24.07.1994. Whereas, in his examination in chief he gave the date of said marriage as 19.06.1994. Same shows that before this court, his version was tutored; all the prosecution witnesses (PW1, PW3, PW5 & PW9) including PW2 gave the same date of marriage i.e. 19.06.1994 before the court. Date of marriage (24.07.1994) given by PW2 in his statement u/Sec. 161 Cr.PC corroborates, accused VH's version that he was taken to Ambala only after the State Vs. Vinod Kumar etc. Page No. 38 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 39 ::
accused Vinod Kumar and prosecutrix had already got married to each other on 04.07.1994. Although, he gave his date of visit as 17.07.1994.
10.6.2 PW1, the prosecutrix in her testimony stated that accused VH had visited Ambala before marriage and her mother and brother had also visited accused's house at Palam Village, Delhi, to see him. Whereas, in her cross-
examination she stated that accused VH never came to Ambala to see her. Further, PW3, the mother of the prosecutrix testified that accused VH and his family members visited her house at Ambala to see the prosecutrix. PW5, the brother of the prosecutrix also stated in his cross-examination that accused VH had not visited their residence for seeing the prosecutrix, which is contrary to the prosecutrix's own version in her examination in chief. PW9 Bhabhi of the prosecutrix, has not stated anything about visit of accused VH to see the prosecutrix prior to marriage. It is interesting to note that State Vs. Vinod Kumar etc. Page No. 39 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 40 ::
PW5 even deposed about ring ceremony being performed on 07.06.1994 at their residence at Ambala. Whereas, none of the other witnesses have talked about any such ceremony.
10.6.3 In view of the above, the testimony of these prosecution witnesses is highly suspect. 10.7 Another significant fact which has come on record is, that accused VH got married to one Mamta soon after his marriage to prosecutrix in June, 1994; and that the said marriage was attended by the prosecutrix.
Prosecutrix in her cross-examination has admitted that she had accompanied accused Vinod Kumar to Tis Hazari Court to attend the marriage of accused VH to Mamta, although, she could not recollect the exact date, but, stated that it was in the year 1994. In response to the query of the Ld. defence counsel as to why she did not State Vs. Vinod Kumar etc. Page No. 40 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 41 ::
raise alarm/objection to her husband, accused VH getting married with Mamta despite being in the court premises, the prosecutrix stated that she was pressurized by the accused not to do so. This "pressure" plea of prosecutrix has already been established to be a sham. Prosecutrix also admitted that she did not lodge any complaint with respect to this fact during the period 1994 to 2000 despite the police being available at every footstep, including inside the court.
10.8 It may also be mentioned that the accused VH/DW5 in his testimony deposed that the prosecutrix used to often talk to him during the court proceedings; in the said conversation prosecutrix even admitted that she had wrongly named him in her complaint; she even requested him to ask accused Vinod Kumar to settle the matter with her on payment of money. DW5 has also deposed that she even told him that he may pay a little less amount, since he was falsely implicated; the State Vs. Vinod Kumar etc. Page No. 41 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 42 ::
prosecutrix even called him to Gurudwara Bangla Sahib on 31.07.2004 for discussion where he recorded the conversation between them; she twice had conversation with him in July, 2005 and in February, 2007, which was recorded by him on his mobile phone. DW5 had placed on record Ex.DW4/B, the cassette, Ex.DW4/C mobile chip and Ex.DW4/D, CD, and transcripts of the entire conversation, Ex.DW4/F (Collectively). DW5 was not cross-examined in this regard.
10.8.1 It is noteworthy that the recorded conversation was played and put to the prosecutrix during her cross-
examination. She stated that the voice in the taped conversation is not hers.
10.8.2 Pursuant to the order dated 05.07.2012 of the Hon'ble High Court, the prosecutrix was directed to give her sample voice before FSL for comparison with the voice in the recorded conversation. Dr. C. P. Singh, Assistant Director, Physics, FSL, Rohini, Delhi, appeared State Vs. Vinod Kumar etc. Page No. 42 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 43 ::
as DW4. DW4 proved his report Ex.DW4/A, whereby it was reported that the voice in questioned conversation and the voice in specimen (voice sample of prosecutrix) are the voice of the same person (i.e. prosecutrix). DW4 in his cross-examination stated that he had prepared the said report after comparing the entire conversation with the sample voice. He further stated that the voice comparison was carried out by using scientific tools and is not based on his subjective hearing of two conversations.
10.8.3 In view of the above, the transcript Ex.DW4/F is referred to. The same shows that the prosecutrix was in touch with accused VH/had met him during the pendency of this case. There is also a reference to payment of money for settlement, in the said conversation. The prosecutrix also informed the reason of break-up of her relationship with accused Vinod Kumar, as the return of accused Vinod Kumar's ex-wife in his life. She has stated State Vs. Vinod Kumar etc. Page No. 43 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 44 ::
that his first wife got an opportunity to come near accused Vinod Kumar during the condolence meeting after death of her father. In response to accused VH's comment, she also stated that she never had anything in her heart for him. But, they were married in the eyes of society.
10.9 The above facts and circumstances and the collective reading of the evidence on record, demonstrates that the prosecutrix was in love with accused Vinod Kumar since prior to his marriage. The said affair continued even after his marriage to Geeta in 1990.
The prosecutrix knowingly got married to accused Vinod Kumar on 04.07.1994 during subsistence of his first marriage. As the house of the prosecutrix and that of accused Vinod Kumar's wife Geeta was in the same neighbourhood in Ambala, they sought the help of accused VH. Services of accused VH were used for bringing the prosecutrix with honour to Delhi. For the said State Vs. Vinod Kumar etc. Page No. 44 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 45 ::
purpose, a marriage ceremony, for the consumption of the society/people in the neighbourhood was carried out between the prosecutrix and accused VH. Accused VH dutifully brought the prosecutrix to Delhi and dropped her at the per-determined place i.e. house in Khan Market and went his way. The prosecutrix happily lived ever after with accused Vinod Kumar till the re-entry of accused Vinod Kumar's ex-wife in his life.
11.0 In view of the above, the prosecution has miserably failed to prove that the prosecutrix was kidnapped/abducted and compelled/forced into illicit intercourse or that the accused Vinod Kumar had sexual intercourse with her against her consent or that she was ever intimidated/threatened to be killed or was blackmailed to be defamed. Thus, prosecution has failed to prove charge under Sections 366, 376/120B IPC and 506/34 IPC against accused Vinod Kumar and accused VH.
State Vs. Vinod Kumar etc. Page No. 45 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 46 ::
Sections 493, 496 and Section 313 read with Section 120B IPC against all the accused persons.
12.0 In view of the findings recorded in preceding paras, the prosecution has also failed to prove that the prosecutrix was deceived into having cohabitation/sexual intercourse with accused Vinod Kumar under the belief of lawful marriage or that she was made to undergo the marriage ceremony with VH and accused Vinod Kumar fraudulently, much less a conspiracy on the part of the accused persons in that regard.
12.1 With respect to charge under Section 313 IPC - Except prosecutrix's statement (whose credibility is highly suspect) that her pregnancy was forcibly got aborted at Nursing Home of Dr. Sharma, no other evidence, oral or documentary has been placed on record by the prosecution. Prosecutrix in her cross-examination simply stated that she alongwith IO visited Dr. Sharma, Khan Market, New Delhi and Poddar Nursing Home at Ghaziabad, where she was forcibly aborted twice, but State Vs. Vinod Kumar etc. Page No. 46 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 47 ::
doctor told the IO that he was not having any such record. IO/PW10 has not uttered a word in this regard in his testimony. In view of the same, the prosecution has absolutely failed to prove commission of offence punishable u/Sec. 313 IPC, much less a conspiracy on the part of the accused persons to execute the same. 12.2 Thus, prosecution has failed to prove the charge u/Ss. 493, 496 & 313 read with Sec. 120B IPC against all the accused persons.
Section 495 - against accused Vinod Kumar. 13.0 The prosecutrix got married to accused Vinod Kumar knowing fully well about his previous marriage to Geeta. Thus, offence u/Sec. 495 IPC is also not proved against accused Vinod Kumar.
14.0 In view of the above, the prosecution has miserably failed to prove any conspiracy between the accused persons for committing any offence. The State Vs. Vinod Kumar etc. Page No. 47 No. 48 FIR No. : 258/01, PS : Tughlak Road :: 48 ::
accused persons are hereby acquitted. Their bail bonds stand cancelled and surety bonds stand discharged.
File be consigned to the Record Room.
Announced in open Court (Poonam A. Bamba) Date : 25th February, 2013 ASJ-01/PHC/New Delhi State Vs. Vinod Kumar etc. Page No. 48 No. 48 FIR No. : 258/01, PS : Tughlak Road