Delhi District Court
State vs Sachin Etc. on 27 May, 2011
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus Sachin Etc.
1. Rajeev Kumar Sharma @ Raju
S/o Sh Jugal Kishore Sharma
R/o 235, Tilak Khand,
Giri Nagar, Kalkaji,
New Delhi.
(Discharged vide order dated
16.01.2004)
2. Asha Rani Bhatnagar
W/o Sh Prem Kumar
R/o 297, Hari Nagar
Ashram, New Delhi.
3. Sayed Nizamuddin @ Raju
S/o Sayed Sarajuddin
R/o Shop No. 95,
Sarai Kale Khan,
East Hazrat Nizamuddin
New Delhi.
4. Pooja
W/o Sh Rajeev Kumar
R/o 1020/9, Govindpuri,
New Delhi.
Permanent address :
235, Tilak Khand, Giri Nagar
Kalkaji, New Delhi.
SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03
PS: Kalkaji
2
5. Sachin
S/o Sh Naresh
R/o J-4/104B, DDA Flats,
Kalkaji, New Delhi.
SC No. : 55/03
FIR No.: 531/03
U/S : 372/373/366A/376/328/34 IPC
PS : Kalkaji
Date of institution : 08.10.2003
Date of reserving judgment : 26.05.2011
Date of pronouncement : 27.05.2011
J U D G M E N T
All the above accused persons were sent to face trial for the offences U/Ss 372/373/366A/376/328/34 IPC by the SHO, PS Kalkaji on allegations that on 29.06.2003 the prosecutrix of this case namely P (the name and other particulars of the prosecutrix are being withheld as it is a case, inter-alia, U/S 376 IPC) was produced before PW6/SI Ramesh Dahiya, the In-charge of PP Govindpuri, PS Kalkaji, by the office bearers of one NGO namely ' P rayas ' and she had made her statement Ex. PW1/A before PW6, the English translated version whereof runs as under :-
" I am a resident of the above given address SC No. 55/03 State Vs. Sachin & Ors.FIR No. 531/03
PS: Kalkaji 3 and I am working as a maid for cleaning purposes in houses. About one year back I had gone to the shop of Raju Johri (Jeweller) in Sarai Kale Khan with my ' Mausi ' (maternal aunt) for the making of some jewellery and there on his shop one lady had met me and she introduced me with her ' Jija ' (brother-in-law) namely Rajan, who was residing at Ashram. Rajan had kept me in his room on the pretext of giving employment and there besides his wife one other person was also present. They had given me food to eat and after eating the same I became unconscious and when in the morning I had regained my consciousness, I had found myself clothless and the above associate of Rajan had done wrong act (Galat Kaam) with me. I had raised a noise and then Rajan and the above person had threatened me that they had taken my nude photographs and if I raised a noise then they will defame me. Thereafter Rajan had introduced me with Asha Bhatnagar, who was also residing in the area of Ashram, and she used to send me to Delhi and Palwal with customers after taking money from them and also used to keep all the money with herself and she used to provide only food to me. One girl namely Sartaj was also residing with Asha Bhatnagar and she introduced me with a boy named Sachin, who was residing in DDA Flats, Kalkaji, and Sachin also used to send me to the customers and kept earning money. One Pooja met me there and some boys of DDA Flats had picked up a quarrel with Sachin and had also beaten him and thereafter I had started residing with the above Pooja at her SC No. 55/03 State Vs. Sachin & Ors.FIR No. 531/03
PS: Kalkaji 4 house in Govindpuri and her husband Raju was also residing there. Pooja is also a bad girl and she also started sending me outside for wrong acts and she used to keep all the money with her and also to keep me confined in the house. Today, somehow, I had managed to get myself free from their clutches and had reached ' Prayas ' and from there I had come to the PP for writing a complaint. I am a girl of tender age and the above persons and ladies had thrown me in bad acts against my wishes and I had been raped by many persons. Raju Johri had sold me for wrong acts and because of the same I fell in the wrong profession and my life had been spoiled. Action be taken against all the above persons. "
2. On the above statement made by the prosecutrix, PW6/SI Ramesh Dahiya had endorsed the rukka Ex. PW6/A resulting into the registration of this case vide FIR Ex. PW3/A U/S 372/373/366A/376/34 IPC. The prosecutrix was got medically examined vide MLC Ex. PW15/A through W/ASI Mithlesh and the investigation of the case was assigned to PW20 W/SI Jesepha and during the investigation carried out by her, she had prepared some pointing out memos of the houses of some accused and had also arrested the accused Rajiv Kumar Sharma @ Raju and Asha Rani Bhatnagar on 30.06.2003 and Sayed Nizamuddin @ Raju and Pooja on 01.07.2003 & 07.07.2003 respectively, at the instance of SC No. 55/03 State Vs. Sachin & Ors.FIR No. 531/03
PS: Kalkaji 5 the prosecutrix, and had also recorded their disclosure statements. The statement U/S 164 Cr.P.C. of the prosecutrix Ex. PW21/C was also got recorded by the IO/PW20 on 01.07.2003 and the X-ray examination of her bones was also got conducted for determination of her age and vide report Ex. PW16/A she was opined to be between 14.5 to 16.5 years of age. However, the accused Sachin and Rajan could not be arrested and the chargesheet was filed against the other four accused persons, as stated above, on 10.09.2003 before the Ld. MM concerned for offences U/S 372/373/366A/376/328/34 IPC and after compliance of the provisions of Section 207 Cr.P.C., the case was committed for trial before a Court of Sessions as the above said offences were exclusively triable by a Court of Sessions.
3. The above accused Sachin was also subsequently declared P.O. by the Ld. MM concerned vide order dated 24.11.2003 and a supplementary chargesheet against him as P.O. was also filed before the Ld. MM concerned on 03.01.2004 and the same sent for trial along with the main chargesheet on the same day.
4. The matter came up for consideration of charges against the above accused persons before this court and vide order dated 16.01.2004 the accused Rajiv Kumar Sharma SC No. 55/03 State Vs. Sachin & Ors.FIR No. 531/03
PS: Kalkaji 6 @ Raju was directed to be discharged and charges were directed to be framed against the accused Sayed Nizamuddin @ Raju Johri for the offence U/S 372 IPC and against the accused Pooja and Asha Bhatnagar for the offences U/Ss 372/373 IPC and charges for the above said offences were also framed against them on the same day. Vide order dated 09.02.2004 of this court the supplementary chargesheet filed against the accused Sachin as P.O. was also directed to be clubbed with the main chargesheet for the purposes of trial.
5. However, the accused Sachin was also subsequently arrested in this case on 12.03.2004 and a supplementary chargesheet against him was again filed on 23.03.2004 and the same was sent by the Ld. MM concerned for trial along with the main case pending before this court vide his order dated 24.03.2004 and after the formalities of allocation etc., it was also taken up with the main case on 15.04.2004 and the charges for the offences U/S 372/373 IPC were also framed against the accused Sachin on that day as a prima facie case for the above said offences was also found to had been made out against him for the said offences.
6. The prosecution in support of its case had examined on record total 21 witnesses and their names and the SC No. 55/03 State Vs. Sachin & Ors.FIR No. 531/03
PS: Kalkaji 7 purpose of examination is being stated herein below :-
(i) PW1 is the prosecutrix P of this case and she had broadly deposed on the lines of her above statement Ex.
PW1/A and has specifically stated regarding the recording of her above statement in PP, Govindpuri after she was taken there by the officials of the NGO ' P rayas ' . She has also deposed about the recording her statement U/S 164 Cr.P.C by the Ld. MM on 01.07.2003 and her medical examination etc and has also identified the accused Raju Johri @ Sayed Nizamuddin, Pooja and Sachin, but has not identified the accused Asha Bhatnagar. Her depositions will be discussed and appreciated in detail in the later part of this judgment.
(ii) PW2 Sh. Rajinder Singh, Advocate was working as a Legal Coordinator, CIC (Delhi Police) on the day of incident and he has stated that the prosecutrix had met him and on being told by her about the circumstances leading to her being forced in the prostitution business, he had taken her to Ms Vasundhra, Manager of NGO ' P rayas ' and from there they had taken her to PP, Govindpuri where the statement Ex. PW1/A of the prosecutrix was recorded, which was also signed by him and Ms. Vasundhra, besides the prosecutrix.
SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03
PS: Kalkaji
8
(iii) PW3 HC Kailash Prasad is the Duty Officer of this
case and he has proved on record the FIR of this case recorded by him as Ex. PW3/A. PW4 HC Jagdish Singh had only taken the rukka of this case written by SI Ramesh Dahiya from PP Govindpuri for registration of the case at PS Kalkaji.
(iv) PW5 Ms. Vasundhra is the manager of the NGO ' Prayas ' and she has stated that on 29.06.2003 she was informed by PW2 Sh. Rajinder Singh and one Sardar Ji that a minor girl named P had been forced in the prostitution business by some persons and ladies and after the prosecutrix was brought before her by PW2 and the above Sardar Ji, she had taken her to PP Govindpuri and had got recorded her statement Ex. PW1/A before SI Ramesh Dahiya, which was also signed by her, the prosecutrix and PW2. She has also stated that on being inquired by her, the prosecutrix had disclosed the names of Asha Bhatnagar, Raju Johri, Sachin, Pooja, Sartaj, Rajan and one other Raju as the persons who had forced her to prostitution and she had also disclosed about her sale and purchase in the hands of accused persons and to different people. On 30.06.2003, her statement was recorded by the IO/WSI Josepha and she is also a witness of the arrest of the accused Rajiv @ Raju (since discharged) by the IO/PW20 WSI Josepha at the SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 9 instance of the prosecutrix.
(v) PW6 SI Ramesh Dahiya has only recorded the statement of the prosecutrix EX. PW1/A when she was produced before him by PW2 and PW5 and had than endorsed rukka Ex. PW6/A for registration of the case. PW7 W/Ct. Alka had joined the investigation of this case with the IO/PW-20 on 30.06.2003 and also on 07.07.2003 and is a witness of the arrest memo Ex. PW7/A, personal search memo Ex. PW7/B and disclosure statement Ex. PW7/C of accused Asha Bhatnagar dated 30.06.2003 and also of the arrest memo Ex. PW7/D, personal search memo Ex. PW7/E and disclosure statement Ex. PW7/F of the accused Pooja dated 07.07.2003. PW8 Ct. Ramesh Chand had also participated the investigation with the above IO on 30.06.2003 regarding the arrest of accused Asha Bhatnagar and further on 01.07.2003 at the time when accused Sayed Nizammudin @ Raju was arrested and though he is a witness to the arrest memo Ex. PW8/A and the personal search memo Ex. PW8/B of accused Nizammudin @ Raju, but he has stated that no document pertaining to the arrest of the other accused was signed by him.
(vi) PW9 Sh. Ram Singh is a neighbour of one Sh. Mahender Singh, who was alleged by the prosecution to be SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 10 the landlord of accused Sachin and Pooja and he has not supported the case of the prosecution and had turned hostile with regard to the factum of residence of the above two accused in tenancy in the house of the above Sh. Mahender Singh. PW10 is the above Sh. Mahender Singh and though in his chief examination he has only stated that one husband and wife alongwith their two children were residing as tenant in his house in the year 2003 and he cannot say whether the same were present in the court on that day or not, but in his cross-examination conducted by the Ld. Additional PP for the State and also in his re-examination he has identified the accused Sachin and Pooja to be his tenants and has also stated it to be correct that one girl namely P was residing with them at that time. PW11 Sh. Sher Singh is a resident and owner of the ground floor of the house, from the first floor portion of which owned by some other person, the accused Asha Bhatnagar was allegedly apprehended. He has simply stated that in the above first floor portion two ladies and a child were residing, but he has denied the suggestions given by Ld. APP for the State to him that the accused Asha Bhatnagar, the prosecutrix and 2/3 girls were residing with her in the said house or that he is not deliberately telling this fact having been won over by the accused.
SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03
PS: Kalkaji
11
(vii) PW12 Ct. Rakesh Raghav, like wise PW7 W/Ct. Alka,
had accompanied the IO/PW20 to the house from where the accused Pooja was arrested on 07.07.2003 and he is also a witness of her arrest documents Ex. PW7/A, PW7/B and PW7/C, as stated above. PW13 HC Jitender Rana had got the accused Raju Sharma (since discharged) medically examined from AIIMS on 01.07.2003 and then he had also accompanied the IO/PW20 and other police staff to the shop of the accused Sayed Nizammudin and is a witness of his arrest memo Ex. PW8/A and his personal search memo Ex. PW8/B. PW14 W/Ct. Sunita had accompanied the prosecutrix and W/ASI Mithlesh to AIIMS Hospital on 30.06.2003 for medical examination and then on the same day she has also accompanied the IO/PW20 and other police staff at the time of pointing out of some houses by the prosecutrix and the arrest of the accused Rajiv Kumar Sharma @ Raju (since discharged). She is also a witness of his arrest memo Ex. PW14/A, personal search memo Ex. PW14/B and the disclosure statement Ex. PW14/C.
(viii) PW15 Dr. Deepika Verma of AIIMS had examined the prosecutrix vide MLC Ex. PW15/A with history of rape by 3/4 men and had found that her hymen was not intact and she had advised her X-ray examination of bones for determination of her age. PW16 Dr. Rajiv, Radiologist of AIIMS has identified the handwriting and signatures of Dr. Shiva SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 12 Nand, Radiologist on the report Ex. PW16/A of the X-ray examination of her bones as he was able to identify his handwriting and signatures having worked with him, as Dr. Shivanand was not available in the hospital at that time.
(ix) PW17 HC Dinesh Kumar had only taken the accused Sachin to AIIMS Hospital on 13.03.2004 for his medical examination and had handed over his MLC and one pullanda given to him by the Doctor to the IO and is a witness of the seizure memo Ex. PW-17/A of the above pullanda. PW18 HC Rambir Singh and PW19 SI Krishan Kumar have both apprehended the accused Sachin, who was a PO in this case, on 12.03.2004 on the pointing out of a secret informer and have proved his arrest memo Ex. PW18/A and his personal search memo Ex. PW18/B. PW19 is also the author of the above seizure memo Ex. PW17/A of the above pullanda handed over to him by PW17.
(x) PW20 W/SI Josepha is the main IO of this case and she has deposed in detail regarding the investigation carried out by her and has also deposed regarding the arrest of the accused Raju (since discharged) and Asha Bhatnagar from their respective houses on 30.06.2003 and also about the arrest of accused Raju Johri @ Sayed Nizammudin on 01.07.2003 and of the accused Pooja on SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 13 07.07.2003 and has also deposed about the arrest documents of the above accused persons prepared by her. She has also deposed about the medical examination and bone age examination of the prosecutrix, recording of her statement U/S 164 Cr.P.C etc. and has also proved on record the pointing out memos Ex. PW20/A, PW20/B and PW20/C of the respective houses of accused Asha Bhatnagar, Sachin and Pooja prepared by her at the instance of prosecutrix.
(xi) PW21 Ms. Kamini Lau, the then Ld. MM has proved on record the actual statement U/S 164 Cr.P.C of the prosecutrix recorded by her as Ex. PW21/C and the other proceedings connected with the same as Ex. PW21/B. She has also proved on record the application of the IO for recording of the above statement as PW21/A and another application for taking a copy thereof as Ex. PW21/D.
7. After the conclusion of the prosecution evidence all the incriminating evidence brought on record by the prosecution was put to the above four accused persons facing trial herein, i.e. all the accused persons except the accused Rajiv Sharma @ Raju who stands discharged, and the same was denied by them to be incorrect. They all have claimed that the name of the prosecutrix was not known to them nor they were having any relations with her or their SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 14 co-accused, except that the accused Pooja was known to the accused Rajiv Sharma @ Raju (since discharged) being his wife. They have further claimed that they all have been falsely implicated in this case by the police and their signatures were also forcibly taken on various documents. All of them had also chosen to lead defence evidence.
8. The accused Raju @ Nizammudin has examined on record DW1 Sh. Kamaluddin, DW2 Sh. Salamuddin, DW3 Sh. Vimal Chand Jain and DW4 Smt. Urmila Devi (wrongly numbered as DW3) in his defence. DW-1 has claimed that in the year 2003 the accused Raju @ Nizammudin was working at his shop and even used to sleep there at night and in his presence the police had never visited the above shop. However, he has also stated the customers used to visit his shop and hence he does not remember if a lady with a young girl had also visited his shop. But he has also stated that a quarrel had taken place between one lady and the above accused and the accused was threatened by that lady to be put behind the bars and it was prior to the arrest of the above accused in this case. DW2 and DW3 are the neighbour- shopkeepers of the accused Raju @ Sayed Nizammudin and they have also stated that the police had never visited the shop of Raju to their knowledge and the accused Raju @ Sayed Nizammudin is a man of good character.
SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03
PS: Kalkaji
15
9. DW4 Smt. Urmila Devi (wrongly numbered as DW3)
examined on record has claimed that the prosecutrix and one Banarasi were residing in her house about 8/9 years ago as tenants, alongwith other members of the family of the prosecutrix, and many persons used to visit their residence but she is not aware of the purpose of visit of these persons and the prosecutrix was aged about 14/15 years at that time. She has also stated she had got her house vacated as the persons visiting them had started misbehaving in the house. In her cross-examination she has stated that she had been called by the accused Raju to depose in this court.
10. However, no defence witness was examined on behalf of any of the remaining three accused persons.
11. It is necessary to mention here that when the matter was fixed for final arguments this court had observed that the charges against the accused were not properly framed and hence vide order dated 20.11.2010 the charges were directed to be amended and amended charges for the offences U/S 366A/372 IPC in alternative against the accused Sayed Nizamuddin @ Raju and charges for the offences U/S 372/373 IPC against the remaining three accused were accordingly framed. It is also necessary to SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 16 mention here that vide a subsequent order dated 19.03.2011 this court had also exercised its powers U/S 311 Cr.P.C. and had summoned the concerned Radiologist Dr. Shivanand, who had conducted the bone age examination of the prosecutrix and is the author of the report Ex. PW16/A, and he was examined on record after being numbered as PW22.
12. PW22 Dr. Shivanand has stated that on the basis of the X-rays conducted by him he had opined the age of the prosecutrix to be between 14.5 to 16.5 years, with a margin of 1.9 years on the lower side and 1.5 years on the upper side.
13. I have heard the arguments advanced by Sh. Wasi-Ur- Rehman, Ld. Additional PP for the State and Sh. M. Ansari and Sh. Suresh Kumar, Ld. Defence Counsels for all the accused persons and have also appreciated the evidence led on record and the other case file.
14. Though the accused Sayed Nizamuddin @ Raju has examined on record total four witnesses in his defence, but on scrutiny of the depositions made by these witnesses it is found that the same are not of any help in deciding this prosecution because none of the above witnesses pertains to the incident of this case or has any role to play in the SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 17 same.
15. However, it is a cardinal principle of criminal jurisprudence that the prosecution cannot take any advantage of the weakness of the defence and it has to stand on its own legs for proving its case and the guilt of the accused. Hence, irrespective of the immaterial defence evidence led by the accused Sayed Nizamuddin @ Raju on record, the prosecution evidence will have to be scrutinized, in the light of the documents brought on record, to find out if the same is sufficient to establish the guilt of the accused persons or not and if so for what offences. For that purposes the evidence of the prosecution will have to be scrutinized accused wise and in the light of the charges framed against the accused persons and in this regard the same can be categorized in the following heads :-
A. Age of the prosecutrix (i). Since the charges against the accused persons have been framed for the offences U/S 366A/372/373 IPC, the
first task before this court is to establish the age of the prosecutrix on the date of commission of the alleged offences. Though for the offence of rape punishable U/S SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 18 376 IPC the age of 16 years of the prosecutrix may be relevant for ascertaining if she was a consenting party to the sexual acts or not, but as far as the offences U/S 366A/372/373 IPC are concerned the age of the prosecutrix which is relevant for commission of the said offences is 18 years, and hence, first the prosecution has to prove that at the time of alleged commission of the above offences by the above accused persons qua the prosecutrix, she was below the age of 18 years.
(ii). On this aspect it is observed that only testimonies of the prosecutrix herself/PW1, PW5 Ms. Vasundhara, PW15 Dr. Deepika Verma, PW16 Dr. Rajeev and PW22 Dr. Shivanand and the documents proved by them are relevant and the remaining witnesses examined on record have nothing to do with the age of the prosecutrix. It is also observed that even PW5 Ms. Vasundhara is not much relevant because she was not actually in a position to depose about the age of the prosecutrix and her depositions made in this court regarding the prosecutrix being a minor cannot be given much weight. PW1/prosecutrix in her statement made in this court has not specifically told her age and even in her statement Ex. PW1/A, on the basis of which this case has been registered, her age is not found to be specifically recorded and it is only recorded therein that she was a SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 19 girl of small age. In proceedings U/S 164 Cr.P.C. Ex. PW21/B recorded by the Ld. Link MM concerned/PW22, she had stated her age to be 17 years and had also stated that she had studied up to 5th standard in the MCD School at Sarai Kale Khan. However, it is a matter of record that no documentary evidence in the form of any birth certificate issued by any municipal authority or panchayat or any educational certificate of the prosecutrix showing her date of birth or age has been collected by the IO during the investigation of this case.
(iii). It is further observed that in the MLC Ex. PW15/A of the prosecutrix, no age of the prosecutrix has been recorded in the concerned column of age of the said MLC, but she was directed to be subjected to be X-rays for determination of her bone age. During his statement PW16 Dr. Rajeev, Radiologist of AIIMS Hospital has duly brought on record the X-ray examination/bone age report of the prosecutrix as Ex. PW16/A vide which she has been opined to be between 14.5 years and 16.5 years of age. The above report has been subsequently proved on record by the concerned Radiologist Dr. Shivanand/PW22 himself, who had conducted the X-ray examination of the prosecutrix. Now, it is to be seen as to what was the age of the prosecutrix when she had left her house or when this case was SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 20 registered.
(iv). PW22 Dr. Shivanand, who was recalled by this court as a witness in exercise of its powers U/S 311 Cr.P.C. as stated above, has stated that on 30.06.2003 he had advised X-ray elbow AP and Lat views of the prosecutrix vide requisition form Ex. PW22/A and by that time the X-ray examination of the prosecutrix for pelvis, shoulder and wrist had already been done and the X-ray reports thereof were available and shown to him. He has also stated that on the basis of these reports it was only possible to give the upper age limit of the prosecutrix and hence he had advised X-ray elbow examination of the prosecutrix for determination of her lower age. He has also stated that on the basis of the X-ray elbow examination as well as on the basis of the previous X-ray of her wrist, the age of the prosecutrix was opined by him to be between 14.5 to 16.5 years as the upper end of the radius was found fused, which takes place at the age of 14.5 years, and the lower end of the radius was found unfused, which generally takes place at the age of 16.5 years, and hence her age was opined to be between 14.5 to 16.5 years. However, he has further stated that there is a margin of 1.9 years on the lower side and 1.5 years on the upper side of the above age as per the Article published in the Indian Journal of Medical SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 21 Research, 55, 10.10.1967 by Bajaj ID et al, a copy of which was also placed by him on record as Mark X. He has stated that the above article was written by Dr. I.D. Bajaj, Department of Anatomy, MAMC, Delhi and it is based on a research conducted by the above doctor on about 1000 patients of both sex of the Delhi population and this article was being followed by them in AIIMS Hospital since long for giving opinion regarding the bone age of the persons. Thus as per the depositions of PW22 Dr. Shivanand and while giving the margin of 1.9 years on the lower side and 1.5 on the upper side, the age of the prosecutrix can be taken to be somewhere between 12.6 years to 18 years as on the date of her conduction of the above x-ray examination on 30.06.2003, i.e. on the very next date of the registration of this case on 29.06.2003. Hence, going by the depositions made by the above doctors and the bone age examination report Ex. PW16/A of the prosecutrix the upper age of the prosecutrix can be taken to be 18 years as on the date of the registration of the FIR.
(v). However, it is well settled that the opinion of the expert with regard to the age of a person is not conclusive and authentic enough and the court has to look for the same only when there is no other authentic document or evidence with regard to the age of a person. As already stated SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 22 above, no documentary evidence in the form of any birth certificate or educational certificate of the prosecutrix has been brought on record and merely her plain claim in her statement U/S 164 Cr.P.C. Ex. PW24/C regarding her age to be 17 years cannot be taken as conclusive on this aspect and this court has no option but to look for and rely upon the medical expert evidence for arriving at a just and reasonable conclusion regarding age of the prosecutrix because there is also no other oral evidence regarding her age on record. Though PW22 Dr. Shivanand has stated that the margin on the upper side of the age in the instant case is 1.5 years according to him, based on the above referred Article, but in accordance with various judicial pronouncements on the subject the margin of error for determination of the bone age of the prosecutrix is 2 years on either side and going by this, the age of the prosecutrix should be between 12.5 to 18.5 years.
(vi). It is also a cardinal principle of criminal jurisprudence that if two views are possible on the basis of the evidence led by the prosecution on record then the view which is favourable to the accused is to be adopted because the benefit of doubt, if any, should always go to the accused and not to the prosecution. Going by the above accepted principle of criminal jurisprudence, it can be SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 23 safely held that the prosecutrix was around 18 years to 18.5 years of age as on the day of registration of this FIR. A perusal her statement Ex. PW1/A, which is the basis of the FIR, further shows that the allegations levelled by the prosecutrix start from about one year prior to the registration of this case because in her above statement she had stated that she went to the shop of the accused Sayed Nizamuddin about one year back and hence her age at that time may be taken to be between 17 to 17.5 years, i.e. she was a minor at the time of her alleged disappearance from her house.
Now the evidence led by the prosecution on record is being scrutinized accused wise :-
B. Evidence against accused Sayed Nizamuddin @ Raju :-
(i) According to the prosecutrix the accused Sayed Nizamuddin @ Raju is the root of all the miseries and sufferings of the prosecutrix because he is the person who had allegedly sold the prosecutrix to one lady and she in turn had further sold her to some other person.
(ii) As stated above, though initially only charge for the offence punishable U/S 372 IPC was framed against the SC No. 55/03 State Vs. Sachin & Ors.FIR No. 531/03
PS: Kalkaji 24 accused Sayed Nizamuddin @ Raju but the amended charge framed against him is for the offence U/S 366A IPC and in the alternative charge for the above said offence U/S 372 IPC has also been framed against him. The offence U/S 366A IPC relates to the inducement of a minor girl, by any means whatsoever, for going from one place or to do any act with such intent that the girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person and the offence U/S 372 IPC relates to the selling, letting to hire or otherwise disposing of a minor with an intent that he or she shall be used for the purposes of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purposes.
(iii) When the evidence led by the prosecution on record is scrutinized in the light of the above legal provisions, it is found that the same is not sufficient to establish any of the above two alternative charges framed against the accused Sayed Nizamuddin @ Raju. In her statement Ex. PW1/A made to the police the prosecutrix has only stated that about one year before she had gone to the shop of the above accused in Sarai Kale Khan for making some jewellery alongwith her Mausi Sitara. It is also stated by her that SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 25 there one lady had met her and she introduced her with her Jija Rajan. Thereafter the prosecutrix gives an account of how from the hands of the above Rajan she had met with the accused Asha Bhatnagar and the other accused persons, and then at the end of her statement she had named the accused Sayed Nizamuddin @ Raju as well as the other accused persons being responsible for her sufferings and has also stated that the accused Raju Johry had sold her for wrong purposes.
(iv) In her statement U/S 164 Cr.P.C. Ex. PW21/C also she has stated that she used to go to the shop of the above accused in connection with getting some job/work and one day the accused Raju Johry had told her that he is having one boss who requires a girl on good salary and she was also told that she will have to do all works which the boss may require. She claims that on the next date she had again gone to the shop of the accused Raju Johry and she was introduced with one lady as secretary of his above boss and that lady had told her that they both will work jointly and then that lady had introduced her with the above Rajan.
(v) In her depositions made in this court against the accused Sayed Nizamuddin @ Raju she has again reverted back to her original version recorded in Ex. PW1/A, but with SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 26 some improvements and difference, that she had gone to the shop of the above accused with her Mausi Sitara and thereafter she went to his shop many times as she came to know from him that several big persons were coming to him and he could arrange employment for her and the accused had also assured her about the employment with big persons. She has further deposed that thereafter on one day in the evening at about 07.00/08.00 pm she had went to his shop and had found a Bengali lady present there, whose name she does not know and there were some talks between accused Raju and the above Bengali lady in Bengali language and she could not understand the above talks. She has also stated that thereafter the accused Raju had told her that she could start living with the above lady in a separate room on rent and then he will come sometime to visit them.
(vi) It is clear from the above that the prosecutrix in her above three statements had given three different versions as to how she had met the accused Sayed Nizamuddin @ Raju and how she was allegedly made or accompany the above lady from the shop of the above accused and hence her depositions in this regard as made against the above accused do not inspire any confidence. Even otherwise, there is nothing stated in or to be inferred from the above depositions made by the prosecutrix that she was induced by SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 27 the accused Sayed Nizamuddin @ Raju to go with the above lady knowing it to be likely that she will be forced or seduced to have illicit intercourse with any other person. As per her statement Ex. PW21/C U/S 164 Cr.P.C. it is the prosecutrix herself who had been visiting the shop of the accused Sayed Nizamuddin @ Raju for getting of a good job with some big persons as she was employed as a domestic help only in some house prior to the same and hence wanted to get some good job or work at a good salary. Her depositions as made in her initial statement Ex. PW1/A and that in the court nowhere suggest that the lady with whom she had met at the shop of the above accused was in fact called by the accused Sayed Nizamuddin @ Raju or known to him or there was any fraudulent or deceptive representation made by this accused to the prosecutrix to make her accompany the above lady. Merely the going of the prosecutrix at the shop of the above accused and her meeting there with the above lady (since not arrested), who had allegedly transfered her custody to the above Rajan (since also not arrested) cannot make the accused Sayed Nizamuddin @ Raju guilty of any offence and merely by saying that she was sold by the above accused to the above lady is not sufficient to made him guilty because in her above statements there is nothing on record to show that the accused Sayed Nizamuddin @ Raju had taken any monetary SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 28 or other consideration for transferring the custody of the prosecutrix to the above lady or in inducing or letting her go with the said lady. Hence, there is also nothing on record to prove the allegations of the prosecution regarding the sale or letting on hire etc. of the prosecutrix by the above accused or her disposal for the purposes as referred to in Section 372 IPC. The above Mausi of the prosecutrix namely Sitara is not a witness in this case nor there is anything on record to show as to why she was not examined or made a witness by the prosecution. In her cross examination conducted subsequent to the amendment of the charges the prosecutrix has though volunteered that the accused Raju had introduced her to a Bengali woman, but she has clearly stated that she had not seen if the accused Raju Johry had taken any amount from the Bengali woman. In her cross examination the prosecutrix has also stated that in the year 2003 she was residing at Sarai Kale Khan alongwith her mother and her elder brother, but even no complaint or missing report had been lodged by her mother, brother or any other member of her family regarding her going missing or disappearance from her home about one year prior to the registration of this case on 29.06.2003 and there is also no explanation on record as to why no such complaint was made. The non lodging of such a complaint etc. is also a strong SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 29 circumstance which negates the commission of any such offence U/S 366A or 372 IPC by the accused Sayed Nizamuddin @ Raju in the year 2002 when she had disappeared from her house.
(vii) Hence, though the age of the prosecutrix can be taken to be between 17 to 17.5 years at the time of her disappearance from her house in the year 2002, i.e. about one year prior to the registration of this case on 29.06.2003, but in view of the above discussion, it can be said that the evidence led by the prosecution on record against the accused Sayed Nizamuddin @ Raju is not sufficient to establish his guilt for any of the offences punishable U/S 366A or 372 IPC for which the alternative charges were framed against him.
C. Evidence against the accused Asha Bhatnagar
(i) On perusal of the case file it is observed that the prosecutrix in her statement Ex. PW1/A made to the police has stated that after she was left in the house of the above Rajan (since not arrested) in the Ashram area by the above lady (since not arrested) and further after she was allegedly raped in the said house by one other person (also since not arrested), the above Rajan had introduced her SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 30 with one Asha Bhatnagar, who was also residing in the area of Ashram and the above Asha Bhatnagar used to send her to Delhi and Palwal with customers and she also used to keep all the money with her and only provided food to her. In her statement U/S 164 Cr.P.C. Ex. PW21/C also she has stated that the above accused used her for wrong works (galat kaam) and she had resided in her house for about 8/9 months and she was only being provided clothes and food by the above Asha Bhatnagar. In her statement made in this court also she has stated that the above Asha Bhatnagar used to supply her at various places in Delhi and out of Delhi, like Palwal and Kausi etc., for the purposes of prostitution and she had remained with her in the above profession and the above Asha Bhatnagar also used to pay some part of the money to her.
(ii) Thus, it is clear from the allegations made by the prosecutrix in all her above statements that the above Asha Bhatnagar used to send the prosecutrix with customers for the purposes of prostitution and she was also being provided clothes, food and even some part of the money for that acts. The depositions of the prosecutrix also show that just after about few days of her disappearance she had fallen in the hands of the above Asha Bhatnagar and had remained there in her house for a considerable period of SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 31 about 8/9 months, as stated by her in her above statement U/S 164 Cr.P.C. Ex. PW21/C, before she was introduced with the accused Sachin by one other girl namely Sartaj living in the house of the above Asha Bhatnagar.
(iii) However, on scrutiny of the prosecution evidence, it is also found that the prosecutrix in her statement made in this court has not identified the accused Asha Bhatnagar to be the above lady named Asha Bhatnagar in whose house she had resided during the above said time and by whom she was used for the purposes of prostitution. While deposing in this court, she has clearly stated that the above Asha Bhatnagar, against whom she was making the above depositions, was not present in the court on the date of making of the above depositions. There is no other witness produced by the prosecution on record pertaining to the identity of the accused Asha Bhatnagar in this case as the same lady by whom the prosecutrix was allegedly purchased, sold or let on hire etc. for the purposes of prostitution. In the absence of there being any evidence on record in this regard and further in the absence of the depositions of the prosecutrix in not identifying the accused Asha Bhatnagar to be the same lady, there is nothing on record to connect the accused Asha Bhatnagar with the commission of the alleged offences or to hold her guilty for any of SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 32 the offences U/S 372/373 IPC for which charges were framed against her. Though it has been argued by Ld. Additional PP for the State that during the depositions made by the IO/WSI Josepha/PW20 it has come on record that the prosecutrix had pointed out the residence of the accused Asha Bhatnagar on 29.06.2003 itself vide the pointing out memo Ex. PW20/A and since she is the same lady who was arrested from the above house/premises, the depositions of the IO/PW20 in this regard, as corroborated by the contents of the above pointing out memo are sufficient to establish the identity of the accused Asha Bhatnagar as an offender in this case. However, it is observed that the sole depositions of the IO/PW20 in this regard cannot be believed because the prosecutrix/PW1 in her statement has nowhere stated or claimed that she was with the IO/PW20 W/SI Josepha at the relevant time on which the above pointing out memo Ex. PW20/A was prepared and in the absence of any such depositions by the prosecutrix herself, the above document, which is stated to had been prepared at her instance, cannot be believed at all. It is also observed that the above pointing out memo PW20/A is witnessed by PW7/W Ct. Sunita and one W/ASI Mithilesh who was not examined by the prosecution on record. Even PW7 in her statement has nowhere specifically stated or claimed that the prosecutrix was present with them at the time of SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 33 preparation of the above memo and her mere denial of a contrary suggestion in this regard given by the Ld. Defence Counsel during her cross examination cannot be taken to mean and prove the presence of the prosecutrix at the relevant time when the prosecutrix herself has not made any specific depositions in this regard in her statement made in the court. Moreover, the above document cannot solely be made to be the basis of conviction of the above accused when it is the admitted case of the prosecution that the prosecutrix was not present at the time of arrest of the accused Asha Bhatnagar vide the arrest memo Ex. PW7/A, which is dated 30.06.2003, i.e. the next day of the registration of this case. Hence, on the basis of the existing evidence led on record, the prosecution can also be said to have failed to prove its charges for the offences punishable U/S 372/373 IPC against the accused Asha Bhatnagar and to connect her with the commission of the alleged offences and hence any discussion with regard to the age of the prosecutrix while she was residing with the above accused becomes immaterial.
D. Evidence against accused Sachin and Pooja (i) As per the prosecution story while the prosecutrix was living in the house of the above accused Asha SC No. 55/03 State Vs. Sachin & Ors. FIR No. 531/03 PS: Kalkaji 34
Bhatnagar, one other girl namely Sartaj living there had introduced her with the accused Sachin, who was living in the area of Kalkaji. On scrutiny of the prosecution evidence it is found that in her statement Ex. PW1/A made before the police the prosecutrix has stated that after the above Sartaj had introduced her with the accused Sachin, who was correctly identified by the prosecutrix in this court and he used to send her with customers and to earn money. In her statement Ex. PW21/C also she has stated that the above Sartaj had taken her from the house of accused Asha Bhatnagar to accused Sachin saying that the accused Sachin will give her half of the money earned by her and also clothes and food. She has further stated that one other girl Payal, who was the girlfriend of Sachin, and one other small girl Preety were also residing there and though Sachin was giving money to Payal and was also arranging charas and ganja for Preety, but she was never given any money by the accused Sachin. Even while deposing in this court she has stated that she was used by the accused Sachin for prostitution and he kept all the money with him. As far as the accused Pooja is concerned, who was also correctly identified by the prosecutrix in this court, the prosecutrix in her depositions made in this court has stated that the accused Pooja was also visiting the house of accused Sachin and on one day two boys had SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 35 forcibly entered the house of accused Sachin and inflicted injuries on his person and then the accused Pooja had taken her to her house in Gali No. 9 of Govindpuri and the accused Pooja herself used to go with the customers and also used to send her with customers and for the purposes of prostitution. She has also stated that she was forcibly sent with the customers by the accused Pooja and the accused Pooja used to charge from the customers and keep the entire amounts with her and she also used to confine her in the house by keeping the door closed. In her statement Ex. PW1/A she has stated that the above Pooja was also a bad girl and she used to send her for wrong works and also used to confine her. Even in her statement Ex. PW21/C U/S 164 Cr.P.C. she has levelled some allegations against the above accused Pooja for using her for the purposes of prostitution and has also stated that she was not given any money by the accused Pooja on some false pretexts.
(ii) However, when the above statements of the prosecutrix are analysed in entirety, it is observed that she is not inspiring any confidence at all because nowhere she has claimed or deposed that either of the above accused Sachin or Pooja had deployed any fraudulent or deceptive means or seduced her for the illegal profession of SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 36 prostitution and rather her depositions show that she herself was pursuing this prostitution business willingly and without the exercise of any pressure or influence etc. by the above accused persons upon her. As per her depositions the accused Sachin had never tried to contact her or to pursue her to come to his house and to be a part of the alleged prostitution racket being run by him from his above said house of Govindpuri and it is the admitted case of the prosecutrix that it is the above girl named Sartaj who had introduced and taken her to the house of accused Sachin. The evidence led by the prosecution further reflects that the prosecutrix had joined the accused Sachin in the above illegal profession merely to earn some amounts from the said profession because earlier at the house of the above Asha Bhatnagar she was either getting no amount in cash or insufficient amount in lieu of her pursuing of the above profession.
(iii) It is further observed on the appreciation of the prosecution evidence that even in the case of the accused Pooja she had accompanied Pooja to her house only when some quarrel had taken place at the house of accused Sachin where the accused Pooja was also allegedly visiting in connection with her prostitution business and it is the prosecurtix herself who had taken shelter at the house of SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 37 the accused Pooja to save herself from being part of any quarrel or from the scrutiny of the police.
(iv) It is further found on appreciation of the testimony of the prosecutrix that she was regularly dealing with the customers and in her statement Ex. PW20/C U/S 164 Cr.P.C. she has even claimed that she used to deal with 4/5 customers in a day and there are also on record her own depositions that she was also being sent with customers outside and even out of Delhi on many occasions and in her cross examination she has further stated that the customers used to take her at night and used to leave her at the house of the accused persons in the morning. It has further been admitted by her in her cross examination that she had never made any complaint to any police official or to any other authority with regard to her allegations of being forced in the above illegal profession of prostitution by the above accused persons. Even her depositions with regard to her alleged confinement by the accused Pooja in her house do not inspire any confidence because of her own admissions and depositions that she was regularly being sent with the customers outside the house and even out of Delhi. The accused Pooja is also alleged to be engaged in the same profession and from the depositions of the prosecutrix as brought on record in her above statement it SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 38 appears that the main grudge or complaint of the prosecutrix was that she was not provided the money allegedly charged by the above accused persons as a consideration of her going with the customers. Since the prosecutrix herself had gone with and joined the above two accused in the above illegal business of prostitution and there is no evidence on record to show that either of the above two accused had ever paid any amount or other consideration for taking the prosecutrix with them or for keeping her with them, it cannot be said that any of the above accused had purchased or taken on hire etc. the prosecutrix for the above said purposes. Even there is no satisfactory evidence on record, except the bald allegations made by the prosecutrix which do not inspire any confidence, that any of the above two accused were responsible for hiring of the prosecutrix to different persons for the purposes of prostitution and hence I am of the considered opinion that neither of the charges for the offences U/S 372/373 IPC can be held to be substantiated or proved against the above accused persons on the basis of the depositions made by the prosecutrix in this court. This view is also supported by the depositions made by the prosecutrix in her cross examination wherein she has also stated that on one occasion between 15-18 June, 2003 she was also produced before some senior officer of a police, SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 39 when she was caught with some customers, but even then she had not levelled or raised any such allegations against the accused Pooja or Sachin and the only inference which can be drawn from her above conduct is that she herself was pursuing the above illegal profession of prostitution. Therefore, the evidence led on record by the prosecutrix is even not enough to establish the charges for the above offences framed against the above two accused.
(v) Moreover, one other thing which cannot be ignored is that the age of the prosecutrix at the time when she had left her house has been found to be about 17 to 17.5 years and according to her own statement Ex. PW21/C U/S 164 Cr.P.C. she had spent few days in the house of the above Rajan and then she was left in the house of the above Asha Bhatnagar and had remained there for about 8/9 months. She had come in contact with the accused Sachin and Pooja only thereafter and as per her depositions she had spent only a period of little over one month with the accused Pooja prior to the registration of this case on 29.06.2003 and as discussed above her age can be safely held to be between 18 to 18.5 years on the day of registration of this case. Hence, during the period allegedly spent by the prosecutrix with the accused Sachin and Pooja it is even doubtful if she was actually below 18 years of age or not and the SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji 40 possibility of her being above 18 years of age cannot be ruled out and both the above accused are also entitled to be given the benefit of doubt on this aspect.
16. In view of the above discussion, it is held that on the basis of the evidence led on record the prosecution has not been able to substantiate or prove its charges framed against any of the above four accused persons and to prove their guilt for the said charges. All the four accused persons, are therefore, being acquitted in this case. Their bail bonds U/S 437A Cr.P.C. have already been furnished on record. Hence, their previous personal as well as surety bonds stand discharged. The case file be consigned to the record room Announced in the open court on 27.05.2011 (M.K.NAGPAL) ASJ/Spl. Judge NDPS South & South East District Saket Court Complex New Delhi SC No. 55/03 State Vs. Sachin & Ors.
FIR No. 531/03PS: Kalkaji