Delhi District Court
State vs Pappu Page 1 Of 8 on 27 February, 2012
IN THE COURT OF ADDITIONAL SESSION JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET COURTS: NEW
DELHI
PRESIDED BY : SMT. MADHU JAIN.
IN THE MATTER OF
FIR NO. 35/09
PS : Jaitpur.
Under Section: 363/376 IPC.
Sessions Case No. 203/09
STATE
VERSUS
Pappu.
S/O Sh. Dhunmun Ram.
R/O Village Bhadpa
Post Hazoli, District Balia
Uttar Pradesh.
DATE OF INSTITUTION : 02.09.2009.
DATE OF RESERVING ORDER : 27.02.2012
DATE OF DECISION: 27.02.2012.
J U D G E M E N T
Case of Prosecution:
1 On 18.02.2009 complainant Shyam Lal came to Police Station Jaitpur and lodged a report regarding missing of his daughter aged about 15 years i.e. the prosecutrix (name withheld to keep her identity confidential). It was recorded vide DD no. 28A. Subsequently on 25.02.2009 the mother of the prosecutrix Smt. Sunita Devi again came to the police station and showed State Vs Pappu Page 1 of 8 her suspicion over accused and gave statement that her daughter has been taken away by the accused. On the basis of the statement of the complainant, the present case against accused was registered and during investigation.
Wireless message was issued by the Investigating Officer for flashing missing report of the prosecutirix. Subsequently the mother of the prosecutrix on 01.06.2009 informed in the police station that she has received a telephone call from her daughter Pooja. The police officials alongwith parents of the prosecutrix reached at the village of accused from where the prosecutrix and accused were brought to Delhi. The medical examination of both prosecutrix and accused was got conducted by the Investigating Officer from the concerned doctor. The Investigating Officer got recorded the statement of prosecutrix U/s 164 Cr.P.C. The accused was arrested and after the completion of investigation, Investigating Officer filed chargesheet under Section 363/366/376 of IPC against the accused in the Court. 2 Since the offence U/s 366/376 IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions. Charge Against the Accused 3 Prima Facie case U/s 363/366/376 of IPC was made out accused. Charges against the accused u/s 363/366/376 IPC were framed by my Ld. Predecessor vide order dated 29.10.2009 wherein accused pleaded not guilty and claimed trial.
Witnesses Examined:
4 In support of its case, prosecution has examined thirteen (13) State Vs Pappu Page 2 of 8 witnesses in all.
5 The brief summary of the deposition of the prosecution witnesses is as under:
Material Witnesses 6 PW 8 is prosecutrix. She stated that on 18.02.09 when she was coming
to her school then accused met her in the way. The accused caught hold of her hand and she raised an alarm. Thereafter, accused made her smell something with his handkerchief. She became unconscious and regained her consciousness in the train. She asked accused to leave her but accused threatened to kill her. She became frightened. Accused thereafter took her to District Baliya, U.P. where he took a room on rent. Thereafter on 25.02.09 accused forcibly married her. On 01.03.09 he took her to his native village & kept her there. On his village he committed rape upon her. On 01.06.09 she made a call to her parents secretly. Police alongwith her elder brother reached at the village and brought them to Delhi. Her statement was also recorded by Ld. Metropolitan Magistrate which is Ex PW8/A. 7 PW 10 is mother of prosecutrix Smt. Sunita Devi, who stated that she lodged the report regarding the missing of her daughter. 8 PW 11 is father of the prosecutrix. Sh. Shyam Lal who has deposed on the lines of PW10.
9 PW 12 is brother of the prosecutrix Sh. Pramod, who has also deposed on the lines of PW10 and PW11.
State Vs Pappu Page 3 of 8 10 PW 13 WASI Manju, who is the Investigation Officer who arrested the accused and got recorded statement of prosecutrix u/s 164 Cr.P.C prepared all the memos and after completion of investigation filed the chargesheet in the court.
Formal Witnesses 11 PW 3 is Ct. Jagdish Singh, who accompanied the Investigating Officer
to AIIMS for medical examination. He further deposed that doctor handed over one sealed pulanda containing blood in gauze of the accused alongwith sample seal which he handed over to the Investigating Officer vide seizure memo Ex PW3/A. 12 PW 5 is Smt. Madhu, TGT from Govt. Girls Senior Secondary School, Molarband, New Delhi who proved the admission record of the prosecutrix and stated that as per school record date of birth of prosecutrix is 17.06.1993. 13 PW6 is HC Prem Kumar who registered the FIR and proved the same as Ex PW6/A. 14 PW7 is SI Sher Pal, who got the wireless message flashed regarding missing of prosecutrix.
15 PW9 is Sh. Saurabh Kulshrestha, Ld. Metropolitan Magistrate who recorded the statement of prosecutrix U/s 164 Cr.PC ExPW9/B. Medical Witnesses 16 PW 1 is Dr. Sushil Sharma, who examined the accused vide MLC Ex. PW 1/A. State Vs Pappu Page 4 of 8 17 PW 2 is Dr. Reeta Mahey, who examined the prosecutrix vide MLC Ex PW2/A. 18 PW 4 is Dr. Mudit Gupta , who conducted bone age examination of the prosecutrix and opined her age in between 14.5 to 16.4 years vide report Ex PW4/A. 19 Statement of accused under Section 313 Cr.PC was recorded wherein the accused denied the case of the prosecution and stated that he is innocet and has been falsely implicated in the present case. He further chose not to lead any evidence in his defence.
20. I have heard Ld. Defence counsel for accused as well as Ld. Additional Public Prosecutor for the state and have carefully perused the record.
CONCLUSION
21. In the present case PW4 doctor who conducted bone age examination of the prosecutrix has opined that her age between 14.5 to 16.4 years vide Ex PW4/A. PW5 is Smt. Madhu, TGT, Government Sr. Secondary School, Molarband where the prosecutrix was studing. She proved her admission record and stated that as per school record date of birth of the prosecutrix is 17.06.1993. The date of offence in the present case is 18.02.2009.
Thus, prosecutrix was below 16 years of her age at the time of commission of the offence. She was around 15 years of age at the time of commission of offence. PW8 prosecutrix in her deposition in the court stated that on 18.02.2009 when she was coming from her school then accused met her in the way and caught hold of her. She raised alarm but thereafter State Vs Pappu Page 5 of 8 accused made her smell something. She became unconscious and regained her consciousness in the train. She asked accused to leave her but accused threatened to kill her.
In her cross examination this witness admitted that in the way from her house to her school there are a lots of shops and it is a thickly populated area. She has admitted that public persons were moving here and there during the time when the prosecutrix was going to her school. It is highly unbelievable that when the accused caught hold of prosecutrix and she raised alarm, then none from the public persons gathered there despite it being a thickly populated area.
It is highly unbelievable that accused made her smell something due to which she became unconscious and nobody from the public noticed this fact. How the accused carried her till the railway station and from the railway station to train raises a big question mark. The accused was carrying a big girl in his arms if we go by the version of prosecutrix and the school of the prosecutrix is situated in thickly populated as admitted by the prosecutrix. Under no circumstances it can be believed that accused took an unconscious girl from her school at Molarband to railway station & from there into the train and no body noticed him
21. It is cannot be believed that prosecutrix was not noticed by anybody while she was being carried by the accused in unconscious state. It is highly unbelievable that in the train till the prosecutrix regained her consciousness she was not noticed by any person and none from the public persons countered the accused regarding the fact as to how he is taking the prosecutrix. It seems that prosecutrix herself willingly went with the accused State Vs Pappu Page 6 of 8 but subsequently being under the pressure of the parents she took U turn and deposed against the accused.
In the train also as per prosecutrix, she raised alarm but nobody helped her. It is unbelievable that a girl of 1516 years cried for help in the train and none from the public called the police to rescue the prosecutrix. As per prosecutrix version number of people were coming and going at railway station, Balia but it seems there also she did not raise any kind of alarm for help. She has admitted that there were other rooms also near the room which they had taken on rent but there are also she did not raise any voice. In the village also the prosecutrix, it seems did not raise any alarm. As per her own version she was taken to the village by the accused on a bicycle. She got enough opportunity at that time also to raise noise but she chose not to speak. Her whole conduct shows that the prosecutrix was a consenting party to the whole incident. Though prosecutrix is minor not more than 16 years and consent of minor is of no use but prosecutrix was at that time aged around 16 years and could make out what is best for her. In such circumstances when she herself did not raise any alarm or did not cry for help against the accused then the only inference that can be raised is that she herself went with the accused and was a consenting party. She herself has admitted that accused used to reside in a gali behind their house. Thus, it can be safely concluded that she was known to the accused even prior to the incident. 23 Therefore, so far as sections 366/376 of IPC are concerned prosecution has failed to prove the same against the accused. Prosecutrix is around 16 years of age on the date of offence and was capable to know the consequences of her action. She remained with accused for about 2/3 State Vs Pappu Page 7 of 8 months. She did not cry for any help or did not raise any alarm. Subsequently where she was apprehended by the police, she has raised this plea which seems to be an afterthought under the influence of her parents. 24 In view of the above said discussion it cannot be said that prosecution has been able to prove its case under Section 366/376 IPC against the accused. Therefore, accused is acquitted of the offence under Section 366/376 of IPC. However accused is held guilty and convicted for the offence under section 363 of IPC.
ANNOUNCED IN THE OPEN COURT (MADHU JAIN)
th
27 February, 2012 ASJ SE01/NEW DELHI
State Vs Pappu Page 8 of 8