Delhi District Court
Singh vs . State Of Himachal Pradesh Held That In A ... on 30 March, 2010
IN THE COURT OF SH. RAVINDER DUDEJA : ADDL. SESSIONS
JUDGE-03:NW:ROHINI:DELHI
SESSIONS CASE NO. 191/09
FIR No. 491/07
P.S. Nangloi
U/S: 363/366A/376 (2) (g)
/34 IPC
STATE
Versus
(1) KESHAV
s/o Sh. Ranjeet,
r/o A-65, Gali no. 8,
Yadav Enclave, Vikas Nagar,
Uttam Nagar, New Delhi
(2) GABBAR
s/o Sh. Lal Singh,
r/o B-182, Yadav Enclave,
Vikas Nagar,
Uttam Nagar, New Delhi
Date of Institution : 13-09-2007
Date of Argument : 23-03-2010
Date of Judgment : 30-03-2010
JUDGMENT
1. Case against accused Keshav and Gabbar was committed to Sessions Court for their trial for the offences punishable under Section 376 (2g)/363/366-A/34 IPC.
FIR No. 491/07 Page 1 of 142. As per allegations, on 17.06.2007, prosecutrix "P" (name withheld) was going to the house of her Chachi at about 8:30 pm to cook food. Accused Keshav, a TSR driver, who was residing nearby, met her with his TSR and took her in his TSR on the pretext of giving her a ride. He took her to Safeda Park, Budh Bazar at Village Hastsal. Two friends of Keshav namely Gabbar and Amit also came there. They forcibly took the prosecutrix inside the park and raped her. Gabbar and Amit left the park after raping the prosecutrix. Accused Keshav came outside the park with prosecutrix and after leaving her there, he left the place in his TSR. Prosecutrix reached back at her house in the morning and informed about the incident to her father. Her father informed the police and also apprehended accused Keshav in the gali. Statement of prosecutrix was recorded by the police and FIR under Section 376 (2)(g)/34 IPC was registered. Accused Keshav and Gabbar were arrested in this case. Statement of prosecutrix was recorded under Section 164 Cr. PC. Her bone age test was conducted. She was got medically examined. The third accused namely Amit could not be arrested. On completion of investigation, charge sheet was filed against accused Keshav and Gabbar under Section 376 (2)(g)/363/366-A/34 IPC.
3. Charge was framed against both the accused under Section 363/366-A & 376 (2g) IPC to which, they pleaded not guilty.
FIR No. 491/07 Page 2 of 144. In order to prove its case, prosecution examined 19 witnesses. PW-1 is prosecutrix "P." She proved the statement given to the police as Exbt. PW-1/A and also proved statement under Section 164 Cr. PC which she gave before learned MM as Exbt. PW-1/B. PW-2 is Dharampal. He is the father of the prosecutrix. He deposed that on the day of incident when he came back to his house from his job at 10.00 pm, he noticed that his daughter, who had gone to his brother's house for preparing meals, had not returned till late in the night. He therefore went to the Police Station and lodged a missing report. He stated that he then went to the house of accused Keshav but he was not traceable and his parents informed him that he had not returned home. Accused came back to his house in the morning. He told him that he would bring back his daughter. He along with 4-5 persons and accused went to his house from where accused Keshav got recovered his daughter. Then he along with his daughter went to the police station. His daughter was medically examined and accused Keshav was arrested by the police.
PW-3 is Dr. Vineet Kumar Soni. He had examined the prosecutrix and after examination, referred her for Gynaecological examination. He proved the MLC of the prosecutrix as Exbt. PW-3/A. He further stated that accused Keshav was examined by Dr. Kuldeep under his supervision and that there was nothing to suggest that he was not capable of performing sexual intercourse. MLC of accused Keshav has been proved as Exbt. PW-3/B. PW-4 is Lady Constable Asha. She had taken the FIR No. 491/07 Page 3 of 14 prosecutrix to DDU Hospital for her medical examination. She deposed that after her medical examination, doctor handed over two sealed pullandas bearing the seal of CMO DDU Hospital and a sample seal to her which she handed over to the IO.
PW-5 is HC Ramesh Chand, Duty Officer. He proved the FIR Exbt. PW-5/A. PW-6 is Constable Anand. He is the witness of investigation. He deposed that accused Gabbar had surrendered in the court of Ms. Barkha Gupta, MM. He proved the arrest memo of accused Gabbar as Exbt. PW-6/A. According to him, accused Gabbar gave a disclosure statement Exbt. PW-6/B and had also pointed out the place of commission of rape vide pointing out memo Exbt. PW-6/C. He further stated that accused Gabbar was got medically examined from DDU Hospital.
PW-7 is HC Lachchhi Ram. He had deposited four pullandas and two sample seals at FSL Rohini vide RC No. 119/21.
PW-8 is HC Anil Kumar, MHCM, PS Uttam Nagar. He deposed that exhibits were deposited in the Malkhana. He proved the relevant entries of Register No. 19 and RC Book.
PW-9 is Dr. Rajeev Ranjan. He had examined the prosecutrix for age determination. According to him, the age of the prosecutrix was more than 15 years but less than 16 years. He proved his test report as Exbt. PW-9/A. FIR No. 491/07 Page 4 of 14 PW-10 is Dr. Monika Suri. She identified the signatures of Dr. Arti Sharma, Gynaecologist, who had examined the prosecutrix. According to her, hymen was found torn and vagina admitted one finger easily.
PW-11 is Dr. Sanjeev Kumar. He had examined accused Gabbar. According to him, there was nothing to suggest that accused Gabbar was not capable of performing sexual act.
PW-12 is HC Karan Singh. He had recorded DD No. 16-A Exbt.PW-12/A. PW-13 is Ms. Rekha, MM. She had recorded the statement of prosecutrix Exbt. PW-1/B. PW-14 is HC Randhir Singh, DD Writer. He had recorded the statement of the father of prosecutrix vide DD No. 4-B Exbt. PW- 14/A and passed on the information to PCR.
PW-15 is HC Ami Lal. He is the witness of investigation. He had assisted ASI Naval Singh in the investigation of the case.
PW-16 is Dr. Amit Mehtani. He identified the signatures of Dr. Kuldeep Singh on the MLC of accused Keshav Exbt. PW-3/B. PW-17 is SI Madhav Krishna. He had formally arrested the accused after he surrendered in court. He had recorded his disclosure statement and got him medically examined. He deposed FIR No. 491/07 Page 5 of 14 that accused Gabbar had refused to give his semen sample to the doctor.
PW-18 is ASI Naval Singh. He is the IO of this case.
During investigation, he recorded the statement of prosecutrix, prepared the site plan Exbt. PW-18/B on the pointing out of prosecutrix, arrested accused Keshav and got conducted the medical examination of prosecutrix and accused. He had also recorded the disclosure statement of accused Keshav and handed over the custody of the prosecutrix to her father. He had prepared the pointing out memo of the place of occurrence Exbt. PW-18/C at the instance of accused Keshav. He had also got conducted the bone age test of the prosecutrix and got recorded her statement under Section 164 Cr. PC. He stated that accused Amit could not be arrested.
PW-19 is Constable Ranbir Singh. He had deposited the pullanda and the sample seal at FSL Rohini vide RC No. 178/21.
5. Statements of both the accused were recorded under Section 313 Cr. PC. They disputed all the incriminating evidence put to them. They refused to lead evidence in their defence.
6. I have heard Ld. APP for State, Ms. Usha Rani, Amicus Curiae for accused Keshav and Sh. S. D. Pushkar, Advocate for accused Gabbar and have also gone through the records of the case.
7. Prosecution has built up its case on the basis that prosecutrix was 15 years old at the time of incident. Since she was less than 18 FIR No. 491/07 Page 6 of 14 years of age, therefore she was not in a position to give consent to the accused to take her away from the custody of her parents. The prosecution has referred to the statement of Prosecutrix, her father as well as bone age certificate issued by the Board of doctors.
8. The defence has urged that Prosecutrix was major at the relevant time. There is no convincing oral evidence on the file to determine her date of birth. The statement of father is vague. Ossification test report suggests that Prosecutrix was more than 15 years old and less than 16 years of age at the relevant time. The accused is entitled to the benefit of two years as per various authorities, including those of Hon'ble Apex Court. Consequently, the Prosecutrix did not require the consent of her parents to accompany the accused. She voluntarily had gone with the accused and that it is not a case of kidnapping.
9. In the cases of offence of kidnapping and rape, the primary question for consideration always remains the age of Prosecutrix. The age is most relevant because the age of the Prosecutrix is vital factor to find out if she had the capacity to give consent to go with the accused or to indulge in sexual act.
10. The Prosecution has not placed on the file any documentary evidence of date of birth of the victim. The Prosecutrix has testified in her cross-examination that she does not know her date of birth and even the year or month of her birth.
11. PW2 Dharam Pal is the father of girl. He was examined in court FIR No. 491/07 Page 7 of 14 on 09-04-2008. He deposed that his daughter was 15 years of age. The Investigation Officer ASI Nawal Singh in his cross-examination stated that parents of Prosecutrix could not produce her birth certificate. The father of Prosecutrix stated in the cross-examination that his daughter attended school for 2/3 years but IO made no effort to collect the age proof from the school. The testimony of father regarding the age is also vague in as much as he also did not give exact date of birth of Prosecutrix and gave only her approximate age. In such circumstances, the statement of Sh. Dharam Pal cannot be given much importance for the purpose of determination of age of his daughter/Prosecutrix.
12. The Court is left with report of ossification test of the girl to determine her bone age. PW9 Dr. Rajeev Ranjan had examined the Prosecutrix for age determination. As per his report, the Prosecutrix was more than 15 years but less than 16 years. The Hon'ble Himachal High Court in the case reported in 1987 Crl. L. J. 1266, Paramjit Singh Vs. State of Himachal Pradesh held that in a case of ossification test, the margin of error on either side varies from 1½ to 2 years and benefit shall always go to the accused. In that case also, radiologist had determined the age between 16 to 17 years. It was held that in the case of radiological test, hereditary, diet, climate etc. play important role in the fusion of epiphysis. It is normally accepted that fusion of epiphysis takes place early in the case of rich diet and hot climate and is usually delayed in the case of poor diet and cold climate. Similar view was taken by Hon'ble Allahabad High Court in the case reported in IV 1993 (1) (Crimes) 1009 and held that margin of errors of two years on either side should be given to the accused in determining FIR No. 491/07 Page 8 of 14 the age on the basis of ossification test. The Hon'ble Supreme Court has similarly observed in a case reported in AIR 1982 SC 1297 Jaya Mehta Vs. Home Secretary J & K and others.
13. On the basis of aforesaid circumstances, the accused are entitled for the benefit of two year on either side to determine the bone age of the Prosecutrix. Hence, the bone age of the Prosecutrix with margin of error of two years and benefit to the accused will be between 17 to 18 years at the relevant time.
14. The Division Bench of Hon'ble High Court has held in the case reported in AIR 1991 JCC 413, Mahavir Vs. State that statement of prosecutrix holds the key in the case of sexual assault. The Prosecutrix has deposed that she had gone to the house of her aunt for preparing meals. At about 8/ 8:30 pm, accused Keshav, who used to drive TSR, met her and forcibly made her to sit in the TSR and took her to Narela. Accused Gabbar and Amit met them at about 2 am and they they took her to Eucalyptus garden and inside the garden she was raped by accused Gabbar, Amit and Keshav. Accused Amit and Gabbar went away after committing rape. Accused Keshav came outside the park with her and then he also ran way along his TSR. She deposed that thereafter she came back to her house and told this fact to her father. Her father made a call to the police. Police came at her house and recorded her statement Ex. PW1/A. She was then got medically examined. Her salwar was seized by the doctor. She pointed out the place of occurrence to the police. According to her, her statement u/s 164 Cr. P. C. Ex. PW1/B was recorded after 45 days. In her cross-examination, she testified that accused Keshav took her FIR No. 491/07 Page 9 of 14 around the Gandanala for about an hour. She stated that accused had forcibly pulled her out of her aunt's house. She further stated that she had raised alarm but nobody saved her. According to her, accused Keshav was driving three wheeler and she was sitting on the back seat. She further testified in the cross-examination that accused took her to a hotel between 10:15 pm to 2 am. According to her, all the three accused took dinner in the hotel while she kept sitting in the TSR outside the hotel. The accused persons took ten minutes in taking dinner. She admitted that there were public persons in the hotel but she had not told anybody that accused persons had forcibly abducted her. She further stated in the cross-examination that all the accused left the TSR at the gate of the park and left on foot. She stated that her house is at a 15 minutes walking distance from eucalyptus garden and that she came to her house on foot. She stated that she reached her house at 11:00 am/12:00 noon. According to her, she became unconscious after the rape in the park and regained her consciousness at about 10 am. She further testified in her cross-examination that accused had taken her to gandanala from the school side. She admitted that school belongs to Mukesh Sharma MLA and there is a police booth near the school. She further stated that they went to Ranhola village after passing from the front of Holy Convent Public School. She stated that she had raised alarm on reaching Ranhola village. She admitted that Ranhola village is densely populated and according to her nobody was present as it was night time. She further stated that she had not disclosed about the incident to the gardener, present in the park and had not raised any alarm in the park at the time of incident.
FIR No. 491/07 Page 10 of 1415. In the case of Mahavir Vs. State 1994 JCC 413, prosecutrix went to Railway station and remained standing there alone while accused had gone to purchase the tickets, travelled with accused for long hours in a compartment shared by other passengers and then went on a Tonga which too was shared by passengers, yet not lodged any protest, raised no banner of revolt and made no attempt to flee, it was held that it was impossible to believe. The facts of the present case are almost similar to the facts of above stated case decided by Hon'ble High Court of Delhi. In the present case also, the prosecutrix travelled with accused Keshav in TSR for long hours. Accused Keshav was driving the TSR. If accused Keshav was driving the TSR and the prosecutrix was sitting on the back seat, and if she was being taken away forcibly by the accused, she could have jumped from the TSR or raised an alarm to attract the attention of passersby. The father of the Prosecutrix admits in the cross-examination that his house is situated in a densely populated area. It is difficult to accept that at about 8/ 8:30 pm when Prosecutrix was forcibly made to sit in the TSR, it did not attract attention of any passersby. The story narrated by the Prosecutrix that after abducting her, the accused persons went to a hotel for taking dinner and that she was allowed to sit in the TSR outside the hotel for ten minutes, looks highly improbable. It is difficult to accept that accused would give opportunity to the Prosecutrix to escape by leaving her alone in the TSR outside the hotel. If the testimony of Prosecutrix is to be believed, she had the opportunity to flee away from the TSR while she was alone but she made no complaint to any public person present in the hotel nor made any attempt to escape. In her examination-in-chief, prosecutrix deposes that she came outside the park with accused Keshav and that FIR No. 491/07 Page 11 of 14 thereafter accused Keshav ran away along with TSR but in the cross- examination she states that she had become unconscious after the rape by the accused in the park and that she regained her consciousness at about 10 am next morning. She further contradicts herself by stating that accused persons left the TSR at the gate of the park and went on foot. According to her, she reached back her house at about 11 am/ 12 noon and her house is at a distance of 15 minutes walking from the park. Thus, after regaining her senses at about 10 am, she should have reached her house by 10:15 am. In the cross- examination, she states that she received injuries on her back but the doctor who conducted her medical examination found no fresh external injuries on her person. It is beyond comprehension that the Prosecutrix shall not offer any resistance while being subjected to rape. The Prosecutrix herself states that she raised no alarm in the park at the time of incident which is also not a normal conduct that can be expected from a woman being subjected to forcible sexual assault.
16. According to Prosecutrix, she herself came back to the house and reported the matter to her father who informed the police. But her father has a different story to narrate. PW Dharam Pal deposed that it was accused Keshav who had got recovered his daughter from a house and then he took his daughter to Police Station. On the other hand, IO states that on receipt of DD no. 16A, he went to Yadav Enclave, Vikas Nagar where Dharam Pal had produced the accused Keshav. IO states that he went to the spot at Safedewala park with Prosecutrix and prepared the site plan on her pointing out but the Prosecutrix states that after her return from Police Station she did not go anywhere.
FIR No. 491/07 Page 12 of 1417. The FSL result also does not support the Prosecution story in as much as no human semen was detected on the salwar of Prosecutrix. No external injuries were found on the body of Prosecutrix, it is beyond comprehension that Prosecutrix offered no resistance while being subjected to rape. As already discussed, the Prosecutrix was more than 17 years and at such age the Prosecutrix cannot be said to be completely ignorant of the repercussions of surrendering her body to the lust of accused. The Prosecutrix had sufficient opportunity not only to run away from the TSR while she was sitting alone outside the hotel but she could also have taken the help of passersby. Her entire conduct clearly shows that she was a consenting party to the sexual intercourse.
18. The Apex Court in Shyam and Anr. Vs. State of Maharastra AIR 1995 SC 2169 while dealing with a case of similar nature observed as under:-
"The Prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but still she was in the age of discretion, sensible and aware of the intention of the accused Shyam that he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to got with Shyam-the-appellant on her own and in that sense there was no taking out of the guardianship of her father. The culpability of neither Shyam, A-1 nor that of Suresh, A-2 in these circumstances, appears to us established. The charge against the appellant/accused under Section 366 IPC would thus fall. Accordingly, the appellants deserve acquittal."FIR No. 491/07 Page 13 of 14
18. Further, in appreciating the statement of Prosecutrix, I am supported by the judgement of Kuldeep Kumar Mehto Vs. State of Bihar AIR 1998 SC 2694 wherein it was held that where the prosecutrix was less than 18 years of age and medical evidence showing no injuries on the person of prosecutrix and her private parts, the prosecutrix was taken to a tempo on a particular place and the evidence of prosecutrix not indicating that accused had kidnapped the prosecutrix with intention to marry her against her will or that she may be forced to illicit intercourse, the allegations of rape or that of section 366 were not made out and conviction of accused was held to be improper. The facts of the present case also bear some sort of similarity with the facts mentioned in the above-noted judgement.
19. Since there are loopholes in the Prosecution story regarding allegations of sexual assault as Prosecutrix who was on the verge of majority could not satisfactorily repose her faith in this Court for believing her through her testimony. Hence, in my view, Prosecution has failed to prove the charges against the accused u/s 363/366A/34 IPC and u/s 376 (2) (g) IPC. With these observations, accused are acquitted of all the charges. They be released, if not wanted in any other criminal case. File be consigned to Record Room.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE: NW-03:ROHINI: DELHI.
ANNOUNCED IN THE OPEN COURT ON 30-03-2010.
FIR No. 491/07 Page 14 of 14