Delhi District Court
State vs . 1. Nandke S/O Makram, on 11 December, 2007
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IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS
JUDGE KARKARDOOMA COURTS : DELHI :
Sessions Case No. 290/06
Date of Institution : 26.08.06
Date on which reserved for order : 05.12.07
Date of Delivery of Judgement : 05.12.07
State Vs. 1. Nandke S/o Makram,
R/o Village Sheetal Ganj, PS
Bagar Mao, Distt. Unao, U.P.
2. Umesh Kumar S/o Hori Lal,
R/o village Odra Panchal, PS
Sursa, Distt. Hardoi, U.P.
FIR No. 339/2005
PS Shahdara
U/S 363/328/365/366/376 IPC.
J U D G E M E N T : Factual matrix of this controversy gives an account of sordid and obnoxious incident of white slavery. A young girl, aged about 16 year, was seduced by her neighbour, taken to native village of the latter, sexually exploited and then handed over to another for sexual exploitation. The hapless girl took it as her fate and tried to reconcile with the situation. When, she got an opportunity, she gave a telephone call to her parents and narrated her apathetic condition before them. Anyhow, her abductors were persuaded to bring her back to Delhi. As soon as they alighted bus at ISBT Anand Vihar, they fell in net of police.
2. As borne out of report under section 173 of the Code of Criminal Procedure, 1973 (in short the Code), Vijaya (changed 2 name) was learning computer at D5 Panchsheel Garden, Navin Shahdara, Delhi, in january, 2005. She came to the said computer centre on 26.06.05. At about 8pm, she left for her house at Ashok Vihar, Loni, Ghaziabad, U.P. However, she did not reach her house and went missing. On 25.06.05, her father lodged a missing report at police station Shahdara, which gave birth to DD No.12A on that date. On 06.08.05, he raised an accusing finger on Umesh and Nandke, since they were also missing from their houses since then. Case for offences punishable under section 363 of the Penal Code was registered and investigation was taken on by Shri Prakash ASI. Investigating officer left for village Bagar Mao, Distt. Unao, U.P. in search of accused persons, where he came to know that they had left for Delhi along with prosecutrix. On 12.08.05, Brijpal informed the investigating officer that Umesh and Nandke were coming to Delhi that day. A trap was laid at ISBT, Anand Vihar. At about 7pm, Vijaya was spotted by Brijpal, while sitting on a bench in middle of Umesh Kumar and Nandke. Accused persons as well as Vijaya were apprehended. They were sent to hospital for medical examination.
3. Statement of Vijaya was recorded under section 164 of the Code on 16.08.05, wherein she unfolded that on 22.06.05, she left for her house in a three wheeler scooter. Umesh Kumar met her at 3 Shahdara. He also boarded said scooter. On way, he made her to alight the scooter. He made her to consume beetle and she felt intoxicated. He made her to board bus and took her to his native village at Farukhabad. On her way, she regained her consciousness and inquired from him as to where they were going. He told that they were going home. He kept her with him for five days. He developed physical relations with her. Thereafter, he handed her over to Nandke. She lived with Nandke for one and half months in his native village, Sheetalganj, Distt. Unao, U.P. Nandke also developed physical relations with her against her will. Thereafter, Umesh got her married with Nandke forcibly. Someone from village gave a telephone call to her father. Her father reached Anand Vihar bus stand and brought her to police station. Umesh Kumar kept her in a tenanted room and had sex with her. Nandke kept her in his house. Exhibits were sent to FSL for report. Investigation culminated into a chargesheet against the accused persons.
4. Charge for offences punishable under sections 328, 363, 365, 366 and 376 of the Penal Code was framed against accused Umesh Kumar, besides a separate charge for offence punishable under section 376 of the Penal Code framed against accused Nandke by my ld. Predecessor, to which charges accused persons pleaded not guilty and claimed trial.
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5. To substantiate the charges, prosecution has examined Vijaya (PW1), Brij Pal (PW2), Madan Pal (PW3), Sarla (PW4), Raju, Head Constable (PW5), Shashi SI (PW6), Raju Tyagi (PW7), Dr. Ruchika Garg (PW8), Hari Kishan, Constable (PW9), Dr. Tarkeshwar Gupta (PW10), Indu, Constable (PW11), Ajeet Singh, Head Constable (PW12) and Shri Prakash ASI (PW13) in the case.
6. Raju, Head Constable, was working as Moharrer Makhana with whom case property was deposited by the investigating officer. He brings link evidence over the record. Shashi SI was working as duty officer, who record DD No.12A on 25.06.05. She proved copy of said DD entry as Ex.PW6/A. Ajeet Singh, Head Constable, was working as duty officer on 06.08.05, who had recorded formal FIR. He proved carbon copy of FIR as Ex.PW2/A. Indu, Constable, remained associated in the investigation on 12.08.05 as well as on 13.08.05. She took Vijaya to GTB Hospital for medical examination and narrated those facts in her testimony. Hari Kishan, Constable, remained associated in the investigation on 12.08.05. He speaks that accused persons were arrested from bus stand, Anand Vihar, Delhi, that day at about 7pm. Vijaya was also recovered from their possession. Shri Prakash ASI had conducted investigation of the case and detailed all investigative steps, which were taken by him. He unfolds that accused persons were arrested from ISBT, Anand 5 Vihar, Delhi, on 12.08.05 and Vijaya was recovered from their custody. Accused persons and Vijaya were medically examined. Her statement was got recorded under section 164 of the Code. On conclusion of investigation, he got accused persons challaned.
7. Dr. Tarkeshwar Gupta had proved MLC of Nandke, prepared by Dr. N. Rana, as Ex.PW10/A. He also proved MLC of Umesh Kumar as Ex.PW10/B, which was prepared by Dr. Jitender Pratap. Dr. Ruchika Garg had examined Vijaya in hospital on 13.08.06. She had proved her MLC as Ex.PW8/A. Raju Tyagi, teacher, from Seth Radhey Lal School, Mandoli, Ghaziabad, had proved entry in admission register, recorded at the time of admission th of Vijaya in 7 Standard, of that school on 20.07.01. He tells that her date of birth is recorded in school record as 10.05.89. A certificate to this effect was issued by Shushma Sharma, principal, which has been proved by him as Ex.PW7/A. Sarla, mother of Vijaya, was brought in the witness box. She tells that Vijaya went missing on nd 22 of June about one and half years ago. Accused persons, who were residing in the same locality, were also missing from their house. They became suspicious and lodged a report against them. She tells that when Vijaya went missing, she was 16 years of age. Madan Pal gives confirmation to facts testified by Smt. Sarla. He corroborates her testimony and deposed that on 22.06.05, Vijaya 6 went missing. On 12.08.05, Vijaya was recovered from possession of accused Nandke and Umesh Kumar from ISBT, Anand Vihar, Delhi. Brij Pal also substantiate facts in that regard. He declares that when Vijaya was not traceable, he lodged a missing report in police station, Shahdara. After one and half or two months, he lodged his report, which is Ex.PW2/A. He joined the investigation and Vijaya was recovered from custody of accused persons at bus stand, Anand Vihar, Delhi. Accused persons were arrested. Vijaya, the star witness of the prosecution, unfolds that she was given beetle by the accused Umesh Kumar on 22.06.05, on consumption of which she became intoxicated. He took her to his village near Farukhabad by a bus. She was kept there for five days. Umesh Kumar developed physical relations with her. Thereafter, she was handed over to Nandke, who took her to his village Sheetalganj, Distt. Unao, U.P. Nandke also developed physical relations with her against her will. She confirms that on 12.08.05, she was recovered from custody of the accused persons, when they were sitting at bus stand, ISBT Anand Vihar, Delhi.
8. In order to afford an opportunity to explain circumstances appearing in evidence against them, accused persons were examined under section 313 of the Code. Umesh Kumar had denied all allegations against him. He denied that on 22.06.05, he kidnapped 7 Vijaya from Shahdara and took her to his native village in Distt. Farukhabad, U.P. He further denied that he kept Vijaya there for five days and developed physical relations with her. He denied that thereafter, he handed over Vijaya to Nandke, who took her to village Sheetalganj, Distt. Unao, U.P. He denied that Vijaya was kept by Nandke for about one and half months. He denied that she was raped by Nandke. He had also denied that they were apprehended at ISBT Anand Vihar, Delhi, and Vijaya was recovered from their custody. His case has been of denial simplicitor. He claims himself to be innocent. Nandke also adopted the same posture as taken by Umesh Kumar. He had denied all allegations. According to him, he has been framed in the case. He projects that Vijaya, Brijpal, Madan pal and Sarla are interested witnesses, who had testified facts against him. Though he opted to adduce evidence in his defence, yet none was brought in the witness box by Nandke.
9. Arguments were heard at the bar. Sh. R.K. Pandey, ld. Prosecutor, had presented facts on behalf of the State. Sh. N.K. Bansal and J.P.S Tomar, Advocates, assisted by Sh. Abdul Sattar, Advocate, had advanced arguments on behalf of the defence. I have given my careful considerations to arguments advanced at the bar and cautiously perused the record. My findings on the issues involved in the controversy are as follows : 8
10. Defence assails testimony of Vijaya, pleading that facts projected by her are not at all probable. It has been argued that testimony of Vijaya to the effect that she was made to alight three wheeler scooter and given beetle by Umesh Kumar for her consumption is contradictory to ordinary human behaviour. Further attack has been made on her testimony by Sh. Bansal, arguing that as projected by Vijaya she was taken to his village in Distt. Farukhabad, U.P. by a public transport bus. As per facts projected by the girl, 15 hours were taken by the bus to reach their destination. She nowhere raised hue and cry to invite attention of commuters. According to Sh. Bansal, these facts are suggestive that she was a consenting party to the entire episode. He projects that Vijaya was above 16 years of age as testified by Sh. Rajesh Tyagi, hence competent to consent for sex. According to Sh. Bansal, coitus by Vijaya with Umesh Kumar nowhere falls within the mischief of defintion of rape contained in section 375 of the Penal Code. Sh. Tomar and Abdul Sattar, Advocates, argued that Vijaya had married Nandke with her sweet will. She lived with Nandke for one and half months, without raising any hue and cry. When she went to district Courts, she had not tried to lodge any complaint against Nandke, which fact is sufficient to infer that Vijaya was consenting party to entire episode. They claim that case of prosecution has no 9 legs to stand. Contra to it, ld. Prosecutor argued that Vijaya has projected that she was sexually exploited by the accused persons against her will.
11. For appreciation of arguments advanced by the rival parties, it is expedient to peruse facts unfolded by Kumari Vijaya. She deposed that on 22.06.05 at about 8pm, she had boarded a three wheeler scooter at Shahdara for going to her house at Ashok Vihar, Loni, Ghaziabad, U.P. Accused Umesh Kumar met her after sometime of her boarding the scooter. He was known to her, since he was residing near her house. He made her to get down from three wheeler scooter, on the pretext of going to take something for her to eat. He gave her beetle to eat and on consumption of it, she became intoxicated. Thereafter, he had taken her to his village at Farukhabad by a bus. He had kept her at village for five days. There, he had committed rape upon her, since he had established physical relations with her against her will. In her crossexamination, she admits that accused was known to her form last six or seven months. Bus had taken 15 hours to reach its destination. Accused Umesh Kumar had taken her to house of his father's sister at Farukhabad, U.P., and told her that she was daughter of his landlord. He had brought her for site seeing. She had gone to the house of his father's sister by a tonga, wherein five or six persons 10 were sitting. She had not raised alarm, since Umesh Kumar had threatened of her death. When these facts are assessed on standards of ordinary human behaviour and tenets of veracity, it emerges over record that there is no probability in these events. Vijaya boards a three wheeler scooter at about 8pm for going to her house at Ashok Vihar, Loni. She projects that on the way, she was made to alight that three wheeler scooter by Umesh Kumar on the pretext of going to take something for her to eat. Thereafter, Umesh Kumar gave her beetle for consumption and she became intoxicated. It is against behavioural probability that a girl would alight a three wheeler scooter on asking of someone, who want to give her something to eat. Further more, she does not tell that when she consumed beetle, by what mode of transport, she was brought to bus stand by Umesh Kumar. She simply tells that she became intoxicated and thereafter, she was taken to Farukhabad by a public transport bus. From Shahdara, she was going to Loni. ISBT, Anand Vihar does not fall on the way to Ashok Vihar, Loni. Buses bound for Farukhabad, UP are available at ISBT Anand Vihar. Vijaya nowhere tells as to by what mode of transport, she reached at bus stand, Anand Vihar, Delhi. Why she had not tried to raise any alarm, when she was taken to ISBT, Anand Vihar, has not been explained. Why her condition was not noticed by persons on road or commuters at 11 ISBT Anand Vihar, when she was in a state of intoxication, has not been explained by her. She tells that in the bus, she neither raised any hue and cry nor tried to invite attention of commuters towards her. For 15 hours, she was travelling in a public transport bus and by that time her state of intoxication did not come to an end. Her claim on that count is against natural course of events. She recollects that she boarded a tonga and reached house of father's sister of Umesh Kumar. She wants to persuade the Court to believe that on account of criminal intimidation extended to her, she had not raised any alarm when she travelled in that tonga. She tells that father's sister and sisterinlaw (Bhabhi) of Umesh Kumar were present in the house, where she was taken. She does not tell as to why she did not tell those ladies about her plight. Why she concealed that she was abducted by Umesh Kumar and brought to their house, when she was confronted with those two ladies. She tells that she was kept in the village by Umesh Kumar for five days, where he developed physical relations with her. In her statement, recorded under section 164 of the Code, she tells that Umesh Kumar hired a room on rent, where she was sexually exploited by him. She nowhere explains as to in what circumstances that room was hired by Umesh Kumar in his own native village. Why landlord had not questioned Umesh Kumar as to why and for what purpose that room 12 was needed by him? Why she had not made a complaint to landlord or persons residing in near vicinity about her sexual exploitation at the hands of accused Umesh Kumar? She nowhere explains as to why she had not tried to lodge a complaint against Umesh Kumar with anyone whom she met during those five days. Her silence on these issues is suggestive that true facts are not brought by Vijaya in that regard. Her testimony on its face value is not acceptable. When facts projected by Vijaya are assessed through ordinary human behaviour, it smacks that she had given a colour to her version. Had she not been a consenting party, she would not have reached ISBT, Anand Vihar, Delhi, without offering any resistance. She would not have boarded a bus bound for Farukhabad and travelled in it for 15 hours silently, without being a party to entire affairs. Had she not been a party to the episode, she would not have travelled in the tonga without inviting attention of commuters. In case she was not a consenting party to the sexual game of flesh, she would have narrated facts before father's sister and sisterinlaw (Bhabhi) of accused Umesh Kumar. In case a room was hired by Umesh Kumar in his own native village, she would have lodged complaint to landlord about her plight, in the eventuality of her forcible sexual exploitation. All these facts are suggestive that Vijaya knew Umesh Kumar, accompanied him to Farukhabad and stayed 13 there for a period of five days with him. She had sex with him out of her sweet will.
12. Vijaya nowhere speaks of any inducement on the part of accused Umesh Kumar, when she was made to leave Delhi for Farukhabad. Her story of intoxication and abduction falls to the ground, when same was assessed on behavioural probabilities. She boards a three wheeler scooter and alights it, reaches ISBT Anand Vihar and leaves for Farukhabad in the company of accused Umesh Kumar. Question for consideration comes as to whether these facts answers ingredients of kidnapping, defined in section 361 of the Penal Code. Said provision enacts that whoever takes or induces any minor under 16 years of age, if a male or under 18 years of age, if a female, or any person of unsound mind out of keeping of lawful guardian of such minor or person of unsound mind, without consent of such guardian is said to have kidnapped such minor or person from lawful guardianship. Therefore, to attract provisions of section 361 of the Penal Code, following ingredients should be established : (1) there must be taking or inducement of a minor or a person of unsound mind, (2) the minor must be under 16 years of age, if a male or under 18 years of age, if a female, (3) taking or inducement must be out of keeping of lawful guardianship of minor or person of unsound mind, and (4) taking or inducement must be without 14 consent of guardian of minor or person of unsound mind.
13. The word "entice" involves an idea of inducement by exciting hope or desire in the other. One does not entice another, unless the latter attempted to do a thing, which he or she would not otherwise do. The expression "enticing" involves that, while the person kidnapped might have left keeping of lawful guardian willingly, still the state of mind that brought about that willingness must have been induced or brought about in someway by the accused. Here in the case, Vijaya nowhere speaks that there was any inducement from Umesh Kumar, exciting any hope in her to leave for Farukhabad. In such a situation, it is evident that there is vacuum of evidence brought over record on that issue. It cannot be said that Vijaya was induced by Umesh Kumar to leave for Farukhabad, U.P.
14. However, Vijaya tells that she was made to board a bus and taken to Farukhabad, U.P., by accused Umesh Kumar. To constitute "taking" of a minor out of lawful guardianship of his/her parents would not suggest that it should be done by force. The word "take" means to cause to go, to escort, or to take into possession. For taking to be complete, it should be shown that the accused was instrumental in either counselling her to leave or helping her in leaving. The prosecution has to prove that accused had played 15 some active part in taking the girl from keeping of her lawful guardian's house and taking shelter in his house. The word "take" implies want of wish and absence of desire of the person taken. In order to constitute taking, it is necessary to make out that active part in going away was that of accused and not that of the girl. Factum, which would be and should be taken into consideration in deciding whether there has been taking in particular case, are conduct of the parties, particularly of the accused at the time and before their going away together, the maturity of the girl and her intellectual capacity to think for herself and to make up her mind and circumstances under which and the object for which she felt it necessary or worthwhile to leave her guardian's protection. To prove taking of Vijaya out of keeping of her father, prosecution must signify some act done by the accused, which may be regarded as proximate cause of Vijaya going out of keeping of her guardian. Here in the case, it has been brought over record that Vijaya alighted three wheeler scooter at the instance of accused. As detailed above, she had boarded a three wheeler scooter for going to her father's house at Ashok Vihar, Loni. On the way, accused Umesh Kumar met her and made her to alight it. These facts are sufficient to project that it was conduct of the accused Umesh Kumar, which made Vijaya to alight that three wheeler scooter. He took Vijaya to ISBT, Anand Vihar, Delhi, made 16 her to board a public transport bus and took her to Farukhabad, U.P. These facts are sufficient to highlight that it was accused Umesh Kumar, who had conducted himself in such a situation to show solicitation or persuasions on his part, which ultimately led Vijaya to leave guardianship of her father. Vijaya was not mature enough to take a rational decision nor there was any motive or object for her to leave for Farukhabad, U.P. It was the accused, who played active role and persuaded Vijaya to leave for Farukhabad, U.P. Therefore, ingredients of taking Vijaya out of lawful guardianship of her father has been established. It would not be material that Vijaya willingly went along with accused to Farukhabad, since her actions in that regard were result of solicitation. It is not the case that Vijaya abandoned keeping of her lawful guardian and then went along with accused Umesh Kumar to Farukhabad, U.P. No circumstances were probabilized to show that on account of intolerable behaviour of her parents, Vijaya decided to abandon keeping of her father and then went along with accused to Farukhabad, U.P. Therefore, it is evident that on account of active solicitation and persuasions of accused, Vijaya alighted three wheeler scooter, accompanied the accused to ISBT Anand Vihar and ultimately left for Farukhabad. Therefore, necessary ingredients of "taking" as enacted by section 361 of the Penal Code has been brought over record. 17
15. Sarla had testified that Vijaya was 16 years of age, when she went missing. During the course of her crossexamination, she unfolds that she was aged about 17 years as on that date, (Sarla entered the witness box on 11.01.07 and Vijaya went missing on 12.06.05). Therefore, out of facts testified by Smt. Sarla, it is emerging that Vijaya was 16 years of age on the date, when she went missing. She clarified that Vijaya was admitted in S.D. Junior Public School, Ashok Vihar, Loni, in first standard. She further deposed that her daughter had also studied in a school at village Mandola. Brij Pal gives confirmation to facts testified by his wife, when he unfolds that Vijaya was born in May, 1989. Though, he had shown his inability to give exact date of birth of Vijaya, yet he is defenite when he testified that she was born in May, 1989. These facts substantiate events unfolded by Smt. Sarla, who deposed that Vijaya was aged 16 years, when she went missing.
16. Raju Tyagi entered the witness box to depose that Vijaya was admitted in Seth Radhey Lal Girls High School, Mandola, th Ghaziabad, U.P. in 7 standard on 20.07.01. Her name appears at serial No. 1977 of the school register. Her date of birth was recorded as 10.05.89, on the basis of transfer certificate submitted at the time of her admission. She produced certificate issued by S.D. Public Junior High School, Ashok Vihar, Loni. Certificate Ex.PW7/A 18 was issued by Ms. Sushma Sharma, principal of the said school. It was contended on behalf of the defence that facts testified by Smt. Sarla and Raju Tyagi are not reliable. A claim has been made that it has not been proved as to what was basis of recording date of birth of Vijaya, when she was admitted in S.D. Junior Public High School, Ashok Vihar, Loni. Sh. Bansal had argued that facts projected by these two witnesses nowhere substantiate as to what was the exact date of birth of Vijaya. He claims that testimony of Smt. Sarla and Raju Tyagi, teacher Seth Radhey Lal Girls High School, Mandola, Ghaziabad, may be discarded.
17. Sarla happens to be mother of prosecutrix. She deposed that Vijaya was aged 16 years on the date, when she went missing. Though, Sarla was not in a position to give her exact date of birth, yet she explains that her girl was 16 years of age on the date, when she went missing. Testimony of a mother cannot be brushed aside, when she speaks about age of her child. Being an illiterate lady, she was unable to recollect exact date of birth of her child. But her testimony to the effect that Vijaya was 16 years of age is to be given weight, since a mother is the right person to speak about date of birth of a child.
18. Even otherwise, facts testified by Raju Tyagi, teacher, bring date of birth of Vijaya over the record. The Education Code enjoins 19 upon the Head Master of a school to prepare and maintain an admission register of the pupils admitted to that school. Of the several particulars to be entered in such a register, the date of birth of the pupils as stated by the parents or guardian is an important item. There can be no doubt that the admission register is a public record maintained by the head of the institution, who is duty bound to maintain such a register containing certain particulars relating to each pupil as required by the Education Code. In making such entries in the admission register the head of the institution, who is a public servant, is merely discharging his official duty. The entry thus made in an official record, has to be presumed to be correct in the absence of other reliable evidence to the contrary. Reference can be made to Bhim Mandal (AIR 1961 Pat. 21) and Mohd. Ikram Hussain (AIR 1964 S.C. 1625).
19. Whether a school certificate is admissible in evidence, is a question which confronts us. In Ram Murti (AIR 1970 S.C. 1029) the Apex Court was confronted with a question as to whether an unproved and unexhibited school certificate, which appears to have been obtained by the investigating officer, could be treated as evidence in the case. It was held that in the High Court it was not appreciated that unproved and unexhibited school certificate could not be treated as evidence in the case. In the said case the trial 20 court relied the school leaving certificate, wherein the date of birth of the prosecutrix was detailed, without formal proof of the document. Without commenting anything on the evidentiary value of school leaving certificate, the Apex Court denounced it from the consideration of the case, since it was not proved in accordance with law. In Harpal Singh (1981 Cr.L.J. 1) the Apex Court has declared that the certified copy of an entry in admission register maintained at Govt. Girl School was admissible under section 35 of the Evidence Act.
20. The above proposition of law was reiterated by the Apex Court in Umesh chand (1982 Cr.L.J. 1994), wherein it was held that two documents of two different school, showing age of the child were admissible under section 35 of the Evidence Act. Justice Fajal Ali spoke for the court thus : "In the instant case also there are two documents of two schools showing age of accused/applicant as 22.06.1957 and both these documents, have been signed by his father, were in existence ante litem motem. Hence, there could be no ground to doubt genuineness of these documents and the High Court committed a serious error of law in brushing aside these important documents".
21. Out of facts testified by Raju Tyagi, it stands crystallized that date of birth of Vijaya was recorded in admission register by the 21 school authorities in discharge of their official duties. Her date of birth was got recorded ante litem motem and has to be given credence. Consequently, certificate Ex.PW7/A is relevant. A presumption lies in favour of school record maintained by Seth Radhey Lal Girls High School, Mandola, Ghaziabad, U.P. Relying contents of certificate Ex.PW7/A, it is concluded that Vijaya was born on 10.05.89. She was 16 years, one month and 12 days old, on the date of incident, when she went missing. Prosecution has been able to establish that she was under 18 years of age on 12.06.05.
22. Brij Pal projects that in the year, 2005 Vijaya used to learn computer at Panchsheel Garden, Navin Shahdara, Delhi. In January, 2005 one day, Vijaya did not return from her computer class. He gave a telephone call to Madan Pal, who told that he made Vijaya to board a three wheeler scooter at about 8pm for Loni, Ghaziabad. Madan Pal reaffirms facts testified by Brij Pal. He deposed that on 22.06.05, at about 8pm, Vijaya left his work shop and did not return home. Her father, Brij Pal, telephonically informed him of that fact. Sarla tells that Vijaya was learning computer at Panchsheel Garden, Navin Shahdara, Delhi. One day, she did not return home. When she gave a telephone call to her brother, he told her that he made Vijaya to board a three wheeler scooter at about 8pm. Out of facts unfolded by Brij Pal, Madan Pal and Sarla, it is clear that on 22 22.06.05, Vijaya went to computer work shop at D5, Panchsheel Garden, Navin Shahdara, Delhi. She learnt computer till 8pm, when she was made to board a three wheeler scooter for Loni by Madan Pal. Question for consideration comes that as to whether Vijaya was in keeping of her lawful guardian, when she was made to board a three wheeler scooter by Madan Pal around 8pm on 22.06.05. When a minor leaves for school or market that fact would not put her out of her guardian's keeping. The word "keeping" is word of wide import and would cover a case, where a minor is merely in protection or care of guardian or depends upon him for his or her maintenance, support or sustenance whenever necessity arises. The tie cannot, therefore, be dissolved suddenly on the guardian being struck with some infirmity or decease. A classic example of this situation is available in the precedent of Bishweshwar Mishra (AIR 1949 Orissa
22) wherein prosecutrix was a married girl below 16 years of age, who was living with her husband. There was a quarrel between them on certain date and resultant of that quarrel, the girl left her husband's house on the morning of next date. She boarded a bus that morning with the idea of taking temporary shelter with her maternal uncle. On the way, she was taken by the accused to his house. During her stay, accused attempted to seduce her by making immoral overtures. However, she did not care. Her evidence was that when 23 she left her husband's house, she left temporarily on account of anger and she did not intend to leave it for good. It was held that despite the fact that she voluntarily came out of her husband's house, she continued to be in keeping of her husband all along and that keeping has not been abandoned by her.
23. Here in the case, Vijaya was made to board a three wheeler scooter at Shahdara by Madan Pal. She was in the keeping of her father. when she alighted said three wheeler scooter at the instance of accused Umesh Kumar. No situation arose at any point of time that she abandoned keeping of her father and left with the accused Umesh Kumar. Hence, it is evident that when she was taken away by accused Umesh Kumar at that time, she was in keeping of her father's lawful guardianship. She was taken out of keeping of Brijpal, her father.
24. Brij Pal projects that in January, 2005 Vijaya had gone to computer class at Panchsheel Garden, Navin Shahdara, Delhi. She did not return home from her computer class. He gave a telephone call to Madan Pal, who told that he made Vijaya to board a three wheeler scooter at 8pm for Loni, Ghaziabad. Smt. Sarla also deposed in the same vein. She tells that her daughter was learning computer at Panchsheel Garden, Navin Shahdara, Delhi, who used nd to retun home around 8pm. On 22 of June, about one and half 24 years ago, she went missing. She gave a telephone call to her brother, namely, Madan Pal, who told that he made Vijaya to board three wheeler scooter for Loni Ghaziabad. They searched for her for two or three days, but she was untraceable. Madan Pal tells that on 22.06.05, Vijaya came to his work shop at D5, Panchsheel Garden, Delhi. She left for home around 8pm. Out of facts testified by Brij Pal, Sarla and Madan pal, it emerged over record that on 22.06.05 at about 8pm, Vijaya left for Ashok Vihar, Loni, Ghaziabad, but she did not return home. Consequently, it is evident that these three witnesses highlight that when Vijaya went missing, she was taken out of keeping of Brij Pal, without his consent. Brij Pal has nowhere consented for her taking out of his keeping by the accused Umesh Kumar. All ingredients for offence of kidnapping has been established by the prosecution to hilt.
25. Vijaya tells that after keeping her for five days, accused Umesh Kumar handed her over to Nandke. Nandke had taken her to his village, Sheetalganj, Distt. Unao, U.P. He kept her in his house for about one and half months, where she was raped by him several times against her will and consent. Umesh Kumar had forced her to marry Nandke. He told her that since she had married Nandke, he would make her parents pardon her. He told that he would take her with Nandke to Delhi. She gave a telephone call to 25 her father from the village and informed him that he can recover her at Anand Vihar bus terminal. Out of these events, the girl tells that when Umesh Kumar kept her for five days, thereafter he handed her over to Nandke. She was sexually exploited by Nandke for about one and half months at his native village, Sheetaganj, Distt. Unao, U.P. Events detailed by her bring it over record that she was induced by Umesh Kumar, who took her to Farukhabad with an intent that she may be forced or seduced to illicit intercourse by Nandke. Knowing that fact well, he handed over her to Nandke, who had sex with her for about one and half months. These circumstances answers ingredients of offence punishable under section 366A of the Penal Code. Out of events unfolded by the girl, it is crystal clear that she was taken out of keeping of her father by Umesh Kumar with an intention or knowledge that she will be forced to illicit intercourse by Nandke. Though, she may be a consenting party for a coitus with Umesh Kumar with whom she came to Farukhabad, U.P., but in no circumstance it can be said that she was a consenting party to the episode, when she was handed over to Nandke with knowledge that she would be forced to illicit intercourse by the latter. Consequently, it is concluded that offence punishable under section 366A of the Penal Code also stands established against accused Umesh Kumar.
26. Vijaya deposed that she was sexually exploited by Nandke 26 for about one and half months at village Sheetalganj, Distt. Unao, U.P. It has been argued by Sh. J.P.S. Tomar, assisted by Sh. Abdul Sattar, Advocates that Vijaya had nowhere raised hue and cry nor lodged any complaint with persons of that village or to persons concerned with law and order. An attack on her testimony is made by Sh. Tomar, claiming that Vijaya was a consenting part to entire episode, since she went to court complex to marry Nandke there. He argued that she admits that firstly, she was married at Court Complex and thereafter in village Sheetalganj, Distt. Unao, U.P. When Vijaya married Nandke with her sweet will, it cannot be said that she was sexually exploited by Nandke against her will. Contentions advanced by Sh. Tomar as well as Sh. Sattar, Advocates are unfounded. When Vijaya was handed over in custody of Nandke, at that juncture she was hapless girl, who was at the mercy of Nandke. Her immature decision of accompanying Umesh Kumar to Farukhabad, U.P. pushed her between scylla and charybdis. She was having Damocles sword hanging over her head at that juncture. She was having no defence or resistance to make to the situation in which she was driven on account of her own lapses. Therefore, circumstances that she did not raise hue and cry in the Court complex is not going to provide accolades to Nandke. When she was given in his custody, Nandke was well aware that she 27 was a kidnapped girl. He took her to his native village and kept her confined at his house. All these facts, makes it clear that Nandke, wrongfully concealed or kept Vijaya in confinement at his village Sheetalganj, Distt. Unao, U.P., knowing well that she was kidnapped by Umesh Kumar.
27. She was sexually exploited by Nandke for about one and half months against her will. Contention of Sh. Tomar and Sattar that she married Nandke and thereafter she performed her marriage at Court Complex has no legs to stand. When she was given in custody of Nandke, she was not married to Nandke. Act of coitus by Nandke with the girl was not a part of marital obligation, which may absolve Nandke of his accountability. When she was taken to Court Complex on the pretext of marrying her with Nandke, by that time her honour was defiled many a times. She was not in a position to consent for marriage and the fact that she had not raised hue and cry in Court complex will not obliterate offence of rape committed by Nandke on her. Her testimony that she was sexually exploited stands substantiated from facts projected by Dr. Ruchika Garg. Dr. Garg had examined her on 13.08.06 and found her hymen torn. Contents of MLC Ex.PW8/A gives strength to facts testified by this hapless girl. It stands established that she was sexually exploited as a result of which her hymen was torn. Dr. Tarkeshwar Gupta proves 28 MLC of Nandke as Ex.PW10/A, which was prepared by Dr. N. Rana. Dr. Rana projects in Ex.PW10/A that Nandke was capable for sexual intercourse. Therefore, testimony of Vijaya coupled with circumstances unfolded by Dr. Ruchika Garg and Dr. Tarkeshwar Gupta bring it to hilt that Vijaya was sexually exploited by Nandke against her will. Offence of rape stands established against accused Nandke.
28. Shri Prakash ASI tells us that on 12.08.05 at about 6.30pm, he along with Hari Kishan, Constable, Madan Pal and Brij Pal went to ISBT, Anand Vihar. They concealed themselves by the side of booking window. After sometime, Brij Pal spotted Vijaya sitting in middle of Nandke and Umesh Kumar. Brij Pal went near his daughter, who hugged him. He overpowered Nandke and Umesh Kumar. Vijaya was also taken into custody and interrogated. Facts projected by Shri Prakash are substantiated by Constable Hari Kishan, Brij Pal and Madan Pal. Out of their deposition, it is evident that on 12.08.05 at about 7pm, Vijaya was recovered from custody of Nandke and Umesh Kumar. These events substantiate facts projected by Vijaya about her exploitation and secret or wrongful confinement by Nandke at village Sheetalganj, Distt. Unao, U.P.
29. An attack has been made by the defence on testimony of Vijaya claiming that she had blown hot and cold in the same breath. 29 In one breath, she deposed that she was made to board a three wheeler scooter by Umesh Kumar and taken to Farukhabad, U.P by a public transport bus, while in the subsequent breath, she asserts that she was forcibly taken there, sexually exploited and handed over to Nandke, who had also defiled her honour. When facts projected by Vijaya were appreciated, it came to light that she was consenting party in sexual game of flesh with Umesh Kumar, with whom she went to Farukhabad, U.P. Since she was above 16 years of age, her act of having coitus with Umesh Kumar does not fall within mischief of section 375 of the Penal Code. However, she was not competent to consent for taking her out of keeping of her lawful guardian without his consent. She did not approve act of Umesh Kumar in handing her over to Nandke for her sexual exploitation. It would be considered as to whether facts projected by Vijaya can be accepted. The Apex Court in Anil Singh (AIR 1988 S.C. 1998) concluded that a case should not be rejected for want of corroboration by independent witness if the case made out otherwise is true and acceptable. With regard to the falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Apex Court sought reliance from Bankim Chander (AIR 1919 PC 157) 30 wherein the Privy Council had ruled that in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly untrue, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence. It was announced by the Apex Court that it is also our experience that invariably the witnesses add embroidery to prosecution evidence, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. Testimony of Vijaya to the effect that she was handed over to Nandke by Umesh Kumar, knowing well that she would be sexually exploited by the former is in consonance with standards of veracity. Her deposition that she was taken to village Sheetalganj, where she was sexually exploited by Nandke, is in consonance of ordinary human behaviour. Her deposition concerning her sexual exploitation by Nandke is substantiated by circumstantial evidence, detailed above. She cannot be said to have given consent for act of white slavery committed on her by Umesh Kumar and Nandke. Therefore, these 31 aspects are in consonance with veracity, probable and reliable. No infirmity is found therein in those events.
30. In view of these facts, it is concluded that as far as offences punishable under sections 328, 365, 366 and 376 of the Penal Code are concerned, liability of accused Umesh Kumar has not been established. However, his accountability for offence punishable under section 363 and 366A of the Penal Code has been established beyond doubts. Though, Umesh Kumar was not charged for offence punishable under section 366A and Nandke for offence punishable under section 368 of the Penal Code, yet their conviction for said offences would not result into any prejudice to them, since they had opportunity and took every steps to defend themselves for those offences too. Accountability of accused Nandke for offences punishable under section 368 and 376 of the Penal Code also stands established. Section 464 of the Code contemplates that omission to frame a charge would not make a finding invalid, unless failure of justice has occasioned. As held above, they took every steps to defend themselves of these charges too and no failure of justice would result when they are held accountable for these charges. Consequently, accused Umesh Kumar is acquitted of the charge for offences punishable under sections 328, 365, 366 and 376 of the Penal Code. But he is held guilty and convicted for 32 offences punishable under section 363 and 366A of the Penal Code. Accused Nandke is also held guilty and convicted for offences punishable under section 368 and 376 of the Penal Code.
Announced in the Open Court (Dr. R.K. Yadav)
th
On this 5 day of December, 2007. Additional Sessions Judge :
Karkardooma Courts, Delhi.33
IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS JUDGE KARKARDOOMA COURTS : DELHI :Sessions Case No. 290/06
State Vs. 1. Nandke S/o Makram, R/o Village Sheetal Ganj, PS Bagar Mao, Distt. Unao, U.P.
2. Umesh Kumar S/o Hori Lal, R/o village Odra Panchal, PS Sursa, Distt. Hardoi, U.P. FIR No. 339/2005 PS Shahdara U/S 363/366A/368/376 IPC.
ORDER ON THE POINT OF SENTENCE : White slavery was practised on Vijaya (name changed) by convict Umesh Kumar and Nandke. She was familiar with Umesh Kumar, who took her to his native village at Farukhabad, U.P. She was kept by Umesh Kumar for a period of five days, sexually exploited and handed over to Nandke. Nandke took her to his native village Sheetalganj, District Unao, U.P., kept her there for one and a half months and sexually defiled her. On 12.08.05, she was brought to Delhi by Umesh Kumar and Nandke. She was apprehended by police along with Umesh Kumar and Nandke.
2. Sh. N.K. Bansal, Advocate, presents that convict Umesh Kumar is a young man, aged about 30 years. He argued that he is having clean antecedents. According to Sh. Bansal, Umesh Kumar is the only bread earner to support his family. He claims leniency in 34 sentence on his behalf.
3. Sh. Abdul Sattar, Advocate, presents that Nandke is also a young man, aged about 25 years. He is a motherless child. This simpleton boy was persuaded by Umesh Kumar to keep Vijaya with him. According to Sh. Sattar, Nandke fell in trap of Umesh Kumar. He claims leniency on his behalf.
4. Though Umesh Kumar and Nandke are young persons, having clean antecedents, yet offences committed by them are of very alarming complexion. Umesh Kumar took Vijaya in confidence and kidnapped her out of lawful guardianship of her father with intent to procure her for illicit intercourse with Nandke. This girl was infatuated with Umesh Kumar and accompanied him to Farukhabad, U.P. Her confidence was shattered, when she was handed over to Nandke, who sexually exploited her. Taking into account all these facts, I do not find it to be a case for enlarging convict persons on probation or to deal them with leniency. Convict Umesh Kumar is sentenced to undergo RI for four years and to pay a fine of Rs.10,000/ for offence punishable under section 363 of the Penal Code. In default of payment of fine, he would further undergo RI for one year. He is also sentenced to undergo RI for seven years and to pay a fine of Rs.10,000/ for offence punishable under section 366A of the Penal Code. In default of payment of fine, he would further 35 undergo RI for one year.
5. Convict Nandke kept Vijaya with him, knowing well that she was kidnapped by Umesh Kumar. She was wrongfully confined by him at his native village Sheetalganj, District Unao, U.P., and was sexually exploited by him. Taking into account all these facts, he is, hereby, sentenced to undergo RI for four years and pay a fine of Rs.10,000/ for offence punishable under section 368 of the Penal Code. In default of payment of fine, he would further undergo RI for one year. He is also sentenced to undergo RI for seven years and to pay a fine of Rs.10,000/ for offence punishable under section 376 of the Penal Code. In default of payment of fine, he would further undergo RI for one year.
6. Out of the fine, if recovered, a sum of Rs.25,000/ be paid to Vijaya (name changed) as token of compensation. Substantive sentences awarded to convict persons shall run concurrently. They shall get benefit of period already undegone in detention during investigation and trial of the case. A copy of judgement and order on sentence be supplied to them free of cost.
Announced in the Open Court (Dr. R.K. Yadav)
th
On this 11 day of December, 2007. Additional Sessions Judge :
Karkardooma Courts, Delhi.