Delhi District Court
State vs Pardeep Kumar on 4 February, 2008
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IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE FAST TRACK COURTS
ROHINI DELHI
SC No. 93/2 dated 19/02/2007
Date of Decision: 4th of February, 2008
State Versus Pardeep Kumar
S/o Sh. Dilip Jha
R/o H.No.D-2/199,
Sector-20, Rohini,
Delhi.
FIR No. 411/2006
P.S. Sultan Puri
U/s 363, 366, 376 IPC
JUDGMENT
1. First the Facts Pardeep (accused) has been facing trial for offence u/s 363, 366, 376 IPC on the allegations that on 17/03/2006, at about 01:30 p.m., he kidnapped the prosecutrix, aged about 16 years, took her from Delhi to Punjab and ravished her.
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Present case was registered on the statement made by father of the prosecutrix at police station Sultan Puri on 20/03/2006 wherein he stated that his daughter - prosecutrix, aged 16 years, was missing and not traceable despite search at various places. He also stated therein that Pardeep, who was living at the house of his uncle had kidnapped his daughter and he was confident about this fact.
Case of the prosecution is that on 25/06/2006, father of the prosecutrix met SI Girjesh Singh at Police Station Sultan Puri and informed him about presence of his daughter and the accused in Sector-20, Rohini. The Sub Inspector accompanied by the father of the prosecutrix and constable Pardeep reached Sector-20, Rohini. There, secret information was received that the accused and the prosecutrix were putting up together at D-2/190, Sector-20, Rohini. On reaching the disclosed place, the prosecutrix and the accused were found present there. Landlord of the house was also found present there. The prosecutrix was recovered. Accused was interrogated and arrested.
Lady constable was called from the police station. Thereafter, the prosecutrix and the accused were sent to Sanjay Gandhi Hospital and got medico legally examined. -:3:- After medico legal examination, the investigating officer seized two sealed parcels and a sample seal when produced by lady constable Meena. Statement of the prosecutrix was got recorded from learned Metropolitan Magistrate on 27/06/2006. Sealed parcels, referred to above, were sent to FSL, for analysis.
On completion of investigation, challan was put in court.
After compliance with provisions of section 207 Cr.P.C., case came to be committed to the Hon'ble Court of Session.
2. Charge On 04/11/2006, charge for offences u/s 363, 366 and 376 IPC was framed against the accused. Since the accused pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.
3. Prosecution Evidence In order to prove its case, prosecution examined fifteen witnesses.
Prosecutrix stepped into the witness box as PW3 whereas her father Ram Bharose and mother Smt. Gita Devi deposed as PW5 and PW9 respectively.
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Statement of the prosecutrix recorded u/s 164 Cr.P.C. has been proved by PW6 - the concerned Metropolitan Magistrate.
Medical evidence is available in the statement of PW1 Dr. Indermeet, PW2 Dr. Garima and PW4 Dr. V. K. Jha.
PW7 Vijay Yadav, Sub Registrar, (Birth and Death), has been examined to prove birth certificate depicting the date of birth of prosecutrix as 22/04/1990.
PW8 Ms. Suman Lata Sikoriya is the Vice Principal of the School where the prosecutrix was got admitted. She has deposed about the date of birth of the prosecutrix recorded as 22/04/1990 in the school record.
PW10 Head Constable Fauzdar Singh has been examined to prove recording of FIR Ex.PW10/A. PW12 Naresh Kumar is the landlord of house no. D-2/189 where the prosecutrix and the accused lived together for about 5/6 days as tenants and from where the police took away Pardeep accused.
PW11 lady constable Meena, PW13 SI Rajender Singh, PW14 Constable Pardeep Kumar and PW15 SI Girjesh Singh have deposed about investigation part of prosecution story.
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4. Defence Plea When examined u/s 313 Cr.P.C., accused admitted that the prosecutrix was born on 22nd April, but he could not tell the year of her birth. He also admitted that the prosecutrix used to reside in Sultan Puri and that she was student of 9th standard and also that his house was situated in front of the house of the prosecutrix. However, he denied to have followed the prosecutrix at the time she used to leave for her school.
Plea put forth by the accused reads as under:
"On 17.03.2006, prosecutrix met me at about 1.30p.m at stand of route no. 908, Sultanpuri, Delhi. We loved each other. On 14.3.2006, prosecutrix met me and told that her parents were going to marry her somewhere else and that in case I did not meet her she would die and she could not live without me.
Prior thereto on 13.3.2006, she suggested to run away in my company but I refused.
On 14.3.2006, I told the prosecutrix that I was not having any money with me. I also told that I would accompany her in case she was having money with her. She replied that she would bring some money. On the night of -:6:- 16.3.2006, as suggested by prosecutrix, I collected her bag containing a shawl, three suits, a pair of sandal and Rs. 1660/- in cash from the vacant plot situated in front of house of prosecutrix where she had thrown the same. She also told me that she would reach at the stop of bus of route no. 908 and that I should reach there. Accordingly, on 17.3.2006 she reached stop of bus of route no. 908 and we both left for Village Baltua, Punjab.
.... She lived with me as my wife. I and prosecutrix married in a Gurudwara of Village Baltua and lived there in a rented house for about 2 months. The prosecutrix lived with me of her own. I did not confined her.
.... that I brought the prosecutrix to Sector-20, Rohini, Delhi. The prosecutrix had refused to accompany me to Delhi apprehending that her parents could get me implicated in criminal case. I took a house on rent. I and prosecutrix lived there for about 25 days. Then we shifted to another house ie. H.no. D-2/189, Sector-20, Rohini and remained there for about 10 days.
..... It was on 22.6.2006 that father of prosecutrix came to room where I and prosecutrix were living together. I -:7:- found him waiting near the rented house. I was driving the rickshaw at that time.I entered in my house and found that the prosecutrix Baby was not present there. I found that gas cylinder was on. Father of prosecutrix caught hold of me from the collar of my shirt and then took me to police station.
As regards his medico legal examination, the accused came forward with the plea that he was medically examined two months after his arrest. The accused, however, opted not to lead evidence in defence.
5. Arguments heard. File perused.
6. Contentions Learned Addl. PP has contended that from the evidence led by the prosecution in the shape of statements of the prosecutrix, her parents and the medical evidence available in the statements of the doctor witnesses, it stands established that the accused kidnapped the prosecutrix on 17/03/2006 while she was going to take examination. It has also been contended that since the prosecutrix was about 16 years of age and the accused ravished her, the charge u/s 376 IPC also stands established against him.
On the other hand, it has been contended by learned defence counsel that from the evidence it becomes -:8:- obvious that it was the prosecutrix who accompanied the accused of her own free will and there being nothing to suggest that accused took away or enticed her away, charge for offences u/s 363 and 366 IPC does not stand established. As regards commission of rape, learned defence counsel contended that from the material available on record, it does not stand establish that the accused subjected the prosecutrix to sexual intercourse with or without her consent, and as such he is entitled to acquittal in this case.
7. Discussion Kidnapping: As per prosecution version, the prosecutrix went missing on 17/03/2006. FIR Ex.PW10/A was got recorded by father of the prosecutrix on 20/3/2006. In the FIR statement Ex.PW10/A he stated before the police that on 17/03/2006, his daughter left the house at about 01:30 p.m. for school but neither she reached school nor returned to the house and that she was not available despite search at the houses of their relatives. He further stated therein that he was confident about kidnapping of his daughter by Pardeep (accused) who used to live with his uncle and was missing from the house.
Father of the prosecutrix stepped into the witness -:9:- box as PW5 and narrated as to since when his daughter went missing. According to him, his daughter left for school to take examination in the afternoon of 17/03/2006 but did not return home. She was not traceable despite search. Further according to him, on 20/03/2006, he went to the police station and made statement raising suspicion against the accused who had also run away from his house on 17/03/2006. It was, for the prosecution, to establish as to what led father of the prosecutrix to suspect the accused for kidnapping of his daughter. According to PW5 - father of the prosecutrix, he suspected the accused as he was also missing from his house from the same date i.e. 17/3/2006. However, during investigation, the investigating officer did not record statement of the uncle of the accused to prove that accused was missing from his house w.e.f. 17/03/2006. There is nothing in the statement of PW5 that he himself went to the house of the uncle of the accused and verified that the accused was also missing from that house. Therefore, it remains unexplained as to how father of the prosecutrix was confident on 20/03/2006 at the time he got recorded the FIR that his daughter had been kidnapped by the accused.
Prosecution has also examined PW9 Smt. Geeta -:10:- Devi - mother of the prosecutrix. Her statement is in line with the statement of her husband - PW5. According to her, she came to know that Pardeep (accused) was also missing from his house but the fact remains that she nowhere explained as to how did she verify that the accused was also missing from his house. Therefore, statements of PW5 and PW9 do not help the prosecution.
Then there is statement of PW3 - the prosecutrix herself. According to her about a year back (her statement was recorded on 21/09/2007), at about 2 p.m, she was going to her school to take examination. When she reached near the school, the accused was found standing on the road. A bus came at a slow speed. All of a sudden accused caught hold of her and made her to board the bus. The bus was bound for Punjab. The bus took her to Punjab on the next day. They alighted from the bus at a bus stop. Then the accused took her to a house situated at a short distance from the bus stop and confined her there.
It is in the cross examination of the prosecutrix that she knew the accused for the last one year i.e. when he started living in the house situated in front of their house. It is also in his cross examination that the accused was employed -:11:- in a Ice Factory. All this shows that the prosecutrix knew the accused prior to the present occurrence. It is in her statement that even earlier the accused used to follow and harass her when she used to leave for school. However, there is no evidence on record to suggest that at any point of time she told her parents prior to the present occurrence that the accused used to follow and harass her as and when she left for school. Parents of the prosecutrix, while appearing in court as PW5 & PW9 did not state about any harassment by the accused prior to the present occurrence or that their daughter told them at any point of time about any such harassment.
So far as the story put forth by the prosecutrix that the accused made her to board the bus bound for Pubjab, as per version put forth by her, the bus was boarded from near her school in the area of Sultan Puri, Delhi. There is nothing in her statement to suggest that there was none else in the bus. She is stated to have board the bus. She could raise alarm at that time so as to attract the other persons present in the bus and at the bus stop Sultan Puri. In her cross examination she stated to have not raised alarm at that time. It is not believable that the accused could forcibly take her -:12:- away in broad day light in a public transport from a crowded place like bus stop and that too while she was going to take examination. She could raise alarm even during the journey. However, she admitted in her cross examination to have not raised alarm during the journey. She admitted in her cross examination to have lived with the accused in Punjab for about 1½ month. According to her, accused used to leave for his job during this period of 1½ month. This much period was sufficient for the prosecutrix to draw attention of anyone in the neighbourhood so as to tell them that she had been kidnapped or that she was being wrongfully confined there. The prosecutrix admitted to have not told anyone in Punjab during the period of 1½ month stay that accused had forcibly brought her there. She tried to explain that she did not tell anyone because she was confined in a room. This version put forth by the prosecutrix is not believable when she admitted that the accused used to leave for his job. The evidence available on record goes to suggest that the prosecutrix herself accompanied the accused. Accused has come forward with the plea that both of them were in love with each other and that the prosecutrix told him that she could not live without her. It is in his statement that he turned down the -:13:- suggestion put forth by the prosecutrix on 14/03/2006 that she wanted to run away with him. It was on 14/03/2006 that the prosecutrix told him that in case he did not meet her, she would die, as she could not live without him. It is also his plea that on 16/03/2006 as suggested by the prosecutrix he collected her bag containing a shawl, three suits, a pair of sandal and cash worth Rs.1660/- from the vacant plot situated in front of the prosecutrix where she had thrown the same. She also told him that she would be reaching stop of route no. 908 and that he should also reach there. Accordingly, on 17/03/2006 he reached the aforesaid bus stop and they left for village Baltua, Punjab.
Learned Addl. PP has contended that the prosecutrix was less than 16 years of age on 17/03/2006 as she was born on 22/04/1990 and as such even if the prosecutrix accompanied the accused of her own, her consent does not help the accused to absolve him of the offences u/s 363, 366 and 376 IPC.
It is true that PW7 - the Sub Registrar has proved birth certificate to the effect that a female child was born on 22/04/1990 in the family of Ram Bharose. It is available from the statement of PW8, the Vice Principal of the concerned -:14:- school, that date of birth of the prosecutrix was got recorded as 22/04/1990. From the statement of PW7 and PW8 it can safely be said that the prosecutrix was about 15 years 10 months and 25 days old on the day she left in the company of the accused. But it is well settled that it was for the prosecution to establish that accused took away or enticed her away. In this case as discussed above, prosecution has failed to establish that it was the accused who took away or enticed her away. Prosecutrix herself left in the company of the accused without any kind of allurement or enticement from the side of the accused. Therefore, it cannot be said that he kidnapped the prosecutrix. In this view of the matter, reference may be made to decision in S. Vardarajan Vs. State AIR 1965 Supreme Court 1942.
Consequently, this court comes to the conclusion that prosecution has failed to substantiate the allegations levelled against the accused for offences u/s 363, 366 IPC.
Commission of Rape: Case of prosecution is that accused ravished the prosecutrix during the period she remained in his company - firstly in Punjab and then in Sector-20, Rohini. Had the prosecutrix been subjected to rape by the accused, she would have specifically stated of her -:15:- own in her statement made in court. However, a perusal of her statement made in court on 21/09/2007 would reveal that of her own she did not whisper even a word that the accused ravished her at any point of time. The prosecutrix stated about her kidnapping, recovery and making of her statement u/s 164 Cr.P.C. Thereafter, she stated that the accused did nothing else during the period of about three months. At this stage, learned Addl. PP put leading questions to the witness after seeking permission from the court, on the ground that she was not making statement in consonance with her previous statement made before the police. It was only when leading questions were put by learned Addl. PP that the prosecutrix admitted the suggestion that the accused committed rape on her. Had the prosecutrix been ravished, she would not have hesitated to state so on her own without being put leading questions by learned Addl. PP. The fact remains that she stated so only when she was put leading questions by learned Addl. PP. It is also significant to note that prosecutrix nowhere stated as to on which date, time and place she was ravished by the accused. It was for the prosecutrix to explain that she was ravished on such and such date, time and place. Since in this case, prosecutrix has -:16:- not specified about date, time and place, it cannot be said that the accused ravished her. The investigating officer should have visited Punjab or taken along the prosecutrix to verify if she was ever subjected to sexual assault in the room where she lived with the accused during a period of 1½ month. There is nothing on record to suggest that the Investigating Officer ever thought of visiting village Baltua in Punjab to conduct investigation in this regard.
Case of prosecution is that after 1½ month stay at village Baltua, Punjab, the accused and the prosecutrix came to Delhi and started living at house no. D-2/189, in Sector-20, Rohini, and that she was recovered from the said house by the police on 25/06/2006 in presence of father of the prosecutrix. Accused has admitted to have lived with the prosecutrix at house no. D-2/189, Sector-20, Rohini. PW12 Naresh Kumar is the landlord of the house where accused and the prosecutrix lived together. According to PW12 the accused lived in one of the rooms of his house with his wife and that they lived there as tenants for about 1½ /2 months. He further deposed that thereafter they started living in another room of first floor of his house and that they lived there for about 5/6 days. Further according to him on -:17:- 25/06/2006 police of PS Sultan Puri came to his house and took away the accused. There is nothing in the statement of PW12 that the prosecutrix ever complained him of any sexual assault on her person by the accused. In his cross examination, PW12 admitted that at no point of time prosecutrix complained to him about her husband. Then the witness stated that he never saw prosecutrix weeping and crying. Had the prosecutrix been subjected to sexual assault, she must have brought this fact to the notice of the landlord. But the landlord has not stated anything against the accused in this regard.
Statement of PW12 - landlord also does not support the case of prosecution about recovery of the prosecutrix from that house, as according to him, police took away only the accused. He went on to state that he accompanied the prosecutrix to the police station later on after the accused had been taken away. Had the accused subjected the prosecutrix to any sexual assault she would not have accompanied the landlord to bring the accused back from the police station. Statement of PW12 Naresh Kumar, therefore, does not help the accused.
In view of the above discussion, this court comes -:18:- to the conclusion that prosecution has failed to establish that the accused at any point of time subjected the prosecutrix to sexual assault.
8. Conclusion In view of the above findings, this court comes to the conclusion that prosecution has failed to substantiate any of the accusation levelled against the accused. Consequently, Pardeep Kumar accused is acquitted.
9. Case property be destroyed in accordance with rules on expiry of period for appeal/revision, if none is preferred or subject to decision thereof.
10. File be consigned to record room.
Announced in Open Court On dated 04/02/2008 ( Narinder Kumar ) Additional Sessions Judge Fast Track Courts Rohini: Delhi