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Delhi District Court

State vs Sunil Kumar on 8 April, 2011

                  IN THE COURT OF MS. R. KIRAN NATH
              ASJ ­01, SOUTH DELHI, SAKET COURTS


S. C.  No. 92/10


State 

Vs.

Sunil Kumar
S/o Shri Raj Kishore
R/o Gopalpur, New Pushta,
Delhi
Permanent Address
Village - Deshri
Post - Pallapur, PS­Mangalpur,
District - Kanpur.

FIR No.           : 449/09
P.S.              : Sangam Vihar
U/S               :363/366/376/34 IPC


Date of Institution                     : 27­04­2010
Date of Judgment                        : 08­04­2011

J U D G M E N T

1. The accused has been charged with and has faced trial for having committed offence under section 363/366/376/34 FIR No. :449/09 1 IPC.

2. In brief the case of the prosecution is that a complaint was lodged on 20­12­09 by Mahavir Singh, that his daughter Sonia had left the house suddenly, while cooking food, at around 7.00 pm on 19­12­09 and was not traceable. He suspected that she had been lured by one Sunil. FIR u/s 363 IPC was registered against him. Hue and Cry notice was put out. The birth certificate of the prosecutrix was collected.

3. On 26­01­10 the complainant produced his daughter and Sushil Kumar (accused) in the PS, where statement of the prosecutrix was recorded and the accused was arrested on her statement. In the said statement made to the police she stated that she was called out of her house on 19­12­09 by Ashwani and Ranu, who were relatives of the accused and they had forcibly taken her in a Maruti Car to Anand Vihar bus stand where accused Sunil also reached. Then she along with accused went to Mahoba, MP and stayed there in a hotel. Ranu also reached there by train. Accused Sunil had physical relations with her. On 23­12­09, she FIR No. :449/09 2 along with Sunil and Ranu went on an motorcycle to Baburpur where they (prosecutrix and accused) took a room on rent with the assistance of Ranu and started living there. The accused had physical relations with her in that room also. They stayed there till 22­01­10 and then on 23­01­10, accused Sunil brought her back to Delhi after which they started living in a house at Wazirabad, Delhi. They were apprehended by her father and produced in the PS. Her statement u/s 164 Cr.PC was also got recorded. The prosecutrix was also got medically examined. The medical exhibits were sent to FSL. After completing the investigation the chargesheet was filed in the court.

4. In view of the allegations against the accused in the charge sheet, charge under section 363/366/376/34 IPC was framed against him, to which he pleaded not guilty and claimed trial.

5. In support of its case prosecution has examined 08 witnesses.

6. PW­1 is the prosecutrix herself who has deposed on the lines of the prosecution case. Her statement would be FIR No. :449/09 3 discussed at the relevant stage.

7. PW­2 is Shri Mahavir Singh, the father of the prosecutrix. He has deposed on the lines of his complaint Ex.PW2/A. He has testified that on 19­12­09 his daughter Sonia aged 17 years went missing; he made searches for her but in vain. He suspected that accused Sunil as the person behind the missing of her daughter. He further testified that they kept on searching for her daughter and after about one month they were able to trace out Sonia (prosecutrix) from Wazirabad along with the accused. That her daughter was recovered and accused was arrested.

8. PW­3 is Shri Saurav Kulshreshth, the Ld. MM who recorded the statement of the prosecutrix u/s 164 Cr.PC. He has proved the said statement as Ex.PW3/A.

9. PW­4 is constable Hukum Singh, who had joined the investigation with the IO. The father produced the birth certificate of the prosecutrix which was seized by the IO vide memo Ex.PW4/A.

10. PW­5 is Dr. Ashish Jain, who has proved the MLC of the accused as Ex.PW5/A. FIR No. :449/09 4

11. PW­6 is Shri Ranvir Singh Rana, who was working with MCD as Sub­Registrar Central Zone, Birth and Death Department. He had brought the original record pertaining to the prosecutrix and as per the same she was born on 01­12­92. He has proved the certificate issued by the MCD in this respect as Ex.PW6/A.

12. PW­7 is constable Amar Singh, who joined the investigation of this case with the IO. He testified that the accused was arrested in his presence. He proved the arrest memo and personal search memo of the accused as Ex.PW2/B and Ex.PW2/C respectively.

13. PW­8 is SI Sanjay Kumar, the IO of the case. He has deposed on the lines of the prosecution case. He testified that on 20­12­09, complainant came in the PS and got recorded his statement regarding kidnapping of his daughter by one Sunil Kumar. He made endorsement on the same as Ex.PW8/A and handed over the rukka to the duty officer in the PS. The FIR was registered on this complaint. That wireless message was also got flashed regarding missing/kidnapping of the prosecutrix. He FIR No. :449/09 5 further testified that on 23­12­09 complainant Mahavir Singh also handed over the birth certificate of the prosecutrix and the same was seized vide memo Ex.PW4/A.

14. That on 26­01­10 complainant produced her daughter along with accused. Her statement was got recorded u/s 161 Cr.PC. Accused was arrested vide memo Ex.PW2/B and his personal search was taken vide memo Ex.PW2/C. Disclosure statement of accused Ex.PW2/D was also recorded. He further testified that prosecutrix and accused were taken to AIIMS hospital for their medical examination. That on 27­01­10 statement of the prosecutrix was got recorded u/s 164 Cr.PC and accused was sent to JC. The date of birth certificate of the prosecutrix was got verified from the Sub­ Registrar office of Birth and Death, MCD, Lajpat Nagar. That lateron accused Ranu was got declared PO and other accused Ashwani surrendered before the court and was arrested and supplementary challan was also filed in this regard before the concerned court.

15. In his examination u/s 313 Cr.PC all the incriminating evidence was put to the accused which he denied and stated FIR No. :449/09 6 that he had been falsely implicated in this case. Accused Sunil stated that the parents of the prosecutrix had agreed to marry the prosecutrix with him way back on 13­08­08. However, the mother of the prosecutrix started making demands of either to pay her Rs.50,000/­ or to stay with them in their house. That on his refusal she broke the engagement. He further stated that the prosecutrix insisted that she wanted to marry him; she left her house 4­5 times to come and stay with him and his family members but he sent her back every time. That on the fifth occasion when she came to her house she said that she had given a complaint in the PS and there was nothing to worry and she would stay with him only. He further stated that thereafter they had gone to Anand Vihar bus stand and from there they went to Village Mahua where they stayed for sometime and got married in a temple. Thereafter, they had come back and were residing in his house when they were picked up by the mother of the prosecutrix and her family members and were beaten badly. Thereafter, the prosecutrix was forced to make this false complaint against him. FIR No. :449/09 7

16. The star witness in this case is the prosecutrix who has been examined as PW­1 in this case. She had testified that on 19­12­09, she was alone at her home when two persons namely Ashni and Ranu, relatives of the accused Sunil came to her house and took her away forcibly in a car to Anand Vihar bus stand. There the accused Sunil was present, who made her sit in the bus forcibly and took her to village Mahua. Ranu also reached there by train. She further testified that accused Sunil kept her in Shankar hotel for two days at village Mahua. That there accused committed rape upon her twice in the hotel. Thereafter, accused took her to Babarpur where Ranu arranged a room on the asking of the accused; there accused also committed rape upon her and she was kept there upto 16­01­10. She further testified that thereafter she was taken back to Delhi by accused Sunil and his relative Ranu. That in Delhi also she was kept in a room at Wazirabad for about 8 days. However, her parents reached there and accused Sunil was arrested there. She was medically examined and her statement u/s 164 Cr.PC Ex.PW1/A was also got recorded. She further FIR No. :449/09 8 testified that she was born in the year 1992 and had studied upto 10th standard. She correctly identified accused Sunil.

17. First and foremost it is seen that prosecutrix was above 17 year of age when the alleged incident took place. Though she is using the words to connote have been forcibly taken away from her house in the car by Ashni and Ranu; if one was to read the statement of the prosecutrix in entirety, one gets an impression that there was no pressure on her and she was doing whatever she did, of her own wish all this while. On one hand she says that she was alone at her home on 19­12­09 and Ashni and Ranu had come inside the house and taken her away forcibly. On the other hand the father of the prosecutrix had made a complaint at PS that his daughter was cooking food on 19­12­09 at 7.00 pm and had suddenly left the home. This shows that prosecutrix had left the her house on her own, whereas, prosecutrix has given a statement as if she was taken away by Ashni and Ranu. These persons i.e. Ashni and Ranu could not be traced.

18. Then she further states that she was taken to Anand FIR No. :449/09 9 Vihar bus stand by Ashni and Ranu. There she was met by accused Sunil. Ashni left her there and she boarded the bus to village Mahua along with accused Sunil. They reached village Mahua on the next day. That means it was a long journey under taken by her in a bus with the accused. She does not make any complaint to anyone during all this period ­:

i) In car with Ashni and Ranu on way to Anand Vihar bus stand.

ii) At Anand Vihar bus stand.

iii) In the bus which travelled overnight.

iv) At bus stand Mahua.

v) In Shankar hotel at Mahua.

vi) In Babarpur at a rental room (for almost one month).

vii) On the way back to Delhi.

viii) In Delhi at Wazirabad.

19. Further in her cross­examination she had stated that there were 3­4 houses in her neighbourhood and her house was situated in a narrow gali. She further stated in the cross­examination that she was taken forcibly from inside FIR No. :449/09 10 her house. They had lifted her on their shoulders and carried her to their car parked 2­3 houses away, which sounds very improbable. She further stated that she could not make any noise as they had stuffed handkerchief in her mouth, which was so kept till they reached Anand Vihar bus stand. All this sounds very improbable. It does not sound very convincing that those persons i.e Ashni and Ranu stuffed handkerchief in her mouth till they reached Anand Vihar because if she wanted she could have made the noise by taking out the handkerchief from her hands; it is not possible that she boarded the bus with the handkerchief stuffed in her mouth and she does not make any noise or sound to anyone in the bus in the entire journey.

20. Not only this, in her statement Ex.PW3/A before the Ld. MM u/s 164 Cr.PC she had stated that on the said date i.e. on 19­12­09 at around 6.00 pm she was alone at home and she had just got out of her house to look for her mother when she saw Asni - friend of the accused present outside. He closed her mouth and forcibly put her in a car and took her to Anand Vihar bus stand, where she was met by Ranu FIR No. :449/09 11

- brother in law of the accused, who threatened to stab her and Ranu had forcibly taken her in the bus to Mahua; that Ranu had kept her for two days in Shankar Hotel and from there he had taken her to Babarpur, where they met Sunil and that Sunil married him in a temple at Babarpur forcibly. Then she was kept in an rented accommodation.

21. This shows that the prosecutrix had improvised on her statement u/s 164 Cr.PC from what she stated to the police initially after having been recovered and produced in the PS i.e. in the statement to the police she states that she was taken away by Asni and Ranu, whereas, in her statement u/s 164 Cr.PC she states that she was taken away by Asni forcibly and then Ranu met her at Anand Vihar bus stand and threatened her at the knife point. Whereas, in her statement to the police she states that accused Sunil had taken her away in the bus to village Mahua from Anand Vihar bus stand.

22. She further states that she stayed in a hotel for two days with the accused and then goes on the motorcycle to Babarpur, where she stays with him for about a month and FIR No. :449/09 12 then they return to Delhi where they again took a room on rent and lived there till they were nabbed by the police. The statement in the entirety shows that the prosecutrix seems to be moving around and living with the accused of her own will and she was under no pressure as she did not make any resistance nor she tried to escape even while she was in Delhi. She did not even contact her parents all this while.

23. She admits in the cross­examination that the house at Babarpur was one room house; it was big room; the bathroom was separate from the room i.e. it was on the ground floor and they were staying on the first floor. She used to cook food and they used to got to the market. Her statements against the accused or trying to make a case against the accused are very sketchy and do not inspire confidence i.e. she says that they were living at Babarpur on the first floor and the bath room was on the ground floor. She says that accused used to lock her up and she used to do the cooking work and she used to go to the market with him. She returned to Delhi in a bus which took 25 to 30 hours to reach Delhi and there were many people in the bus. She FIR No. :449/09 13 further stated that the house which they rented at Wazirabad was two storey house and they were residing on the second floor of the said house but still she does not make any complaint to anyone.

24. She says that when she left Delhi, she was having only one pair of clothes, which she was wearing and that she did not change her clothes during her entire stay, which was for almost a month. At this stage, it may be relevant to revert to the cross­examination of the father of the prosecutrix who has been examined as PW­2. He stated in his cross­ examination that he suspected Sunil (accused) of having taken away his daughter as he used to come to their house once in a while with one Gyan Kishore, who was his distant relative. That he used to take tea; that Sunil (accused) used to ring up his daughter which was once intercepted by him and that accused Sunil had said that he wanted to marry his daughter and that he had not committed to the same and when he went to see another boy for his daughter this incident happened.

25. The father of the prosecutrix was examined as PW­2, FIR No. :449/09 14 who had testified that they had gone to look for the prosecutrix at the house of the accused. He testified that he had been informed about his daughter and accused living at Wazirabad in gali no. 16 by Ranu. This Ranu is one of the persons against whom the prosecutrix had alleged that he had taken her away from house on that night. It was further testified by him that on 26­01­10, he found his daughter and Sunil (accused) in a rented house in Wazirabad on second floor while the landlord was staying on the first floor (ground) and that there were number of houses in the locality. He further testified that his daughter was wearing red colour saree when he met her at Wazirabad house. They reached Wazirabad at about 6.00 am in the morning.

26. The father also testified that he had gone there at Wazirabad the door (of the house/room) was not bolted and he opened the ajar himself and had seen both of them sleeping on the bed. The father had also testified that he was informed that brother of the accused was also living with them at Wazirabad but when he had gone there he did FIR No. :449/09 15 not find his brother there. He was told that he had gone to get the milk. He also testified that when they were taking back the prosecutrix and accused in the car, he had received a call from the brother of the accused on his mobile p hone who was asking him to stop the car and bring them back.

27. All these facts go to show that the prosecutrix was under no stress or pressure and she was living there willingly. She had all occasions to complain or to leave the company of the accused but she did not do so all this while. All this shows that prosecutrix had accompanied the accused and was living with the accused of her own free will. The father was aware that his daughter was living with the accused somewhere. In response to court question the witness PW­2 stated that on the night of the incident when he had gone to the house of the accused at Mahipal Pur, the mother of the accused denied but the neighbours told them that accused and his daughter had come there and had then left.

28. Then there is the MLC Ex.PW1/DA of the prosecutrix, which was prepared immediately after her recovery on FIR No. :449/09 16 26­01­10 and after having produced at the PS. She was accompanied by the woman constable and her mother. It was recorded in the said MLC that she had given the history of having eloped with a boy called Sunil on 19­12­09 to a village called Mahua and she also gave history of multiple willful sexual intercourse with accused Sunil in the past month giving history of last coitus 4­5 days back.

29. Thus, from the evidence adduced by the prosecution it is established that the prosecutrix was more than 17 years of age and that she had gone with the accused on 19­12­09 of her own free will and had accompanied the accused and was living with him of her own free will. The accused is thus acquitted of the charges levelled against him. Announced on 08th April, 2011.

(R. Kiran Nath) ASJ­01/South New Delhi.

FIR No. :449/09 17 State Vs Sunil Kumar FIR no. 449/09 PS­ Sangam Vihar 08­04­2011 Present: Ld. Addl. PP for the State.

Accused from JC along with counsel.

Vide separate judgment of the date, accused is acquitted of the charges levelled against him. In terms of section 437­A Cr.PC accused is directed to furnish the bail bond in the sum of Rs.10,000/­ with one surety in the like amount. However, he is released on personal bond till 15­04­11.

To come up for furnishing the bail bond u/s 437­A Cr.PC by the accused person on 15­04­11.

(R. Kiran Nath) ASJ­01/Saket Court 08­04­2011 FIR No. :449/09 18 State Vs Sunil Kumar FIR no. 449/09 PS­ Sangam Vihar 15­04­2011 Present: Ld. Addl. PP for the State.

Accused on bail along with counsel.

Bail bond and surety bond u/s 437A Cr.PC furnished by the accused and accepted. File be consigned to record room.

(R. Kiran Nath) ASJ­01/Saket Court 15­04­2011 FIR No. :449/09 19