Delhi District Court
State vs . Rohit Kumar Dass on 2 April, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 124/2011
Unique Case ID: 02404R0057472008
State Vs. Rohit Kumar Dass
S/o Kishori Dass
R/o Village Sariya Munsi Tola
PO Balsand, PS Balsand
Distt.: Sitabadi, Bihar
(Convicted)
FIR No. : 1055/2007
Under Section : 363/366/376 Indian Penal Code.
Police Station : Rohini
Date of committal to Sessions Court : 26.05.2008
Date on which orders were reserved : 21.03.2012
Date on which judgment pronounced : 02.04.2012
JUDGMENT
Brief Facts:
As per allegations on 17.11.2007 at about 7:00 PM at Jhuggi No. 145, Indra JJ Camp JPG Hospital, Delhi the accused Rohit Kumar Dass kidnapped the prosecutrix 'S' (name of the girl is withheld being the case under Section 376 IPC), a minor girl, aged about 14 years out of the lawful guardianship of her parents with State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 1 of 33 intent to seduce her to illicit intercourse. It is also alleged that the accused Rohit Kumar Dass committed rape upon the prosecutrix 'S' against her wishes.
Case of the prosecution in brief:
It is evident from the record that the present case under Section 363/366/376 Indian Penal Code was registered on the basis of the complaint given by the mother of the prosecutrix namely Smt. Tara wife of Ram Prashad to the extent that her daughter had gone missing on 17.11.2007 and was not traceable. On the basis of this complainant, FIR was registered and the investigations were intimidated. During investigations, on 12.2.2008 the prosecutrix was got recovered near M2K along with the accused Rohit Kumar Dass and the accused was arrested. After completing the investigations, the charge sheet was filed in the court.
CHARGE Charges under Section 363/366/376 Indian Penal Code were settled against the accused Rohit Kumar Dass to which he pleaded not guilty and claimed trial.
EVIDENCE:
In order to prove the onus upon it, the prosecution has examined as many as eighteen witnesses.
State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 2 of 33 Public Witnesses:
PW2 is the prosecutrix 'S' (name withheld) who has deposed that in the year 2007 when she used to go to her school, the accused used to follow her on his cycle. According to the witness the accused even used to follow her when she used to go for work with her mother. The witness has deposed that she cannot tell the exact date and month but it was in the year 2007 when she was going for her work at B9, near Mother Dairy, Sector 3, Rohini, the accused met her on the way at about 7.00 PM and asked her to accompany him otherwise he will kill her family members. The witness has further deposed that at that time his brother Raj Kumar and one Ram Ashish were also with him and they took her in a TSR to Uttam Nagar where accused took a room on rent and kept her there for about a month and raped her. The witness has further deposed that from there the accused took her to Sri Chand Park and kept her in a park for two months and raped her and also used to beat and threaten her. According to the witness somebody informed her mother who came there along with her brother and as the accused was not present at that time as he had gone to his work therefore she informed the accused on telephone at about 9.00 PM and asked him to come back as her mother and brother had come. The witness has deposed that the accused came home at about 12 midnight and threatened her by saying not to give statement against him otherwise he would kidnap State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 3 of 33 her sister also. According to the witness, the accused telephoned his brother who also came to the room along with one person and they all came to the police station and stayed there the whole night and thereafter she was taken to Ambedkar hospital where she was got medically examined and the doctors had taken her panty and nail and blood after which her statement was recorded by the police. The witness has identified her signature on the statement U/s 164 Cr. P.C which is Ex.PW2/A. She has identified her panty Ex.P1 which was taken by the doctor at the time of her medical examination.
In her crossexamination, the prosecutrix has deposed that she studies till first term of 7th class and can read very little English. She has further deposed that the room was in Uttam Nagar Colony but she is unable to tell the number of the said room and has stated that the toilet was not attached to that room and it was situated at about five paces from that room. The witness has further deposed that there were three more rooms in that premises where the owner and one tenant used to reside but she does not remember the names of owner and the tenant. The witness has further deposed that she remained in this room for about one month and thereafter she was shifted to in Uttam Nagar itself but she is unable to tell exactly about the place and further deposed that it was two storied house and she used to reside on the ground floor and owner was at the first floor. According to the prosecutrix, the bathroom and toilet were just State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 4 of 33 outside the room and not within the room. The witness has further deposed that some others persons were also living near the said room. She has further stated that she did not cook food for three months. She has denied the suggestion that she used to go to purchase Kiryana items or used to cook foods during the three months period. The witness has further deposed that she did not talk to any other neighbour at both the places and states that when her mother and brother visited, there was no other person at that room. According to her, the police did not recover her but it was the accused who produced her at the police station at 12 midnight, date and month she does not remember. She has also admitted that the police made inquiries from her and she was sent to Nari Niketan from court on the next day. Witness has denied the suggestion that she had told the Ld. MM that she wanted to go with the accused and not with her parent that is why she was sent to Nari Niketan. Witness has further deposed that she does not know whether Rohit used to go for his job during the three months and has stated that he used to lock her in the room. Witness has denied the suggestion that she had voluntarily made her statement before Ld. MM when her statement U/S 164 Cr.P.C was recorded. She has voluntarily stated that she had given the said statement under threat of the accused. Witness has further deposed that she does not remember anything as to how accused Rohit had taken her first time to Uttam Nagar room State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 5 of 33 but she remembers that the accused brought her at police station from second room at Uttam Nagar in a auto along with another person. According to her police did not record her statement. She has denied the suggestion that she had filed an application of marriage at Ram Lila Committee B9, Sector 3, Rohini or that she also filed affidavit stating her age 18 years. She has further denied that she was in love with the accused and this fact was known to her mother and brother or that she went with the accused voluntarily due to love and affection. The prosecutrix has further denied that her mother brought her forcibly from the company of the accused with the help of police or that accused has been falsely implicated. She has further denied the suggestion that whatever she has deposed in the court or earlier deposed before this court was wrong and she has given a false statement being tutored by her mother and brother. She has denied that she voluntarily given true and correct statement of fact in section 164 Cr. P.C. PW3 Tara has deposed that on 17th, the month she does not remember, last year (of her deposition) her daughter 'S' went missing from the home. According to the witness, she made efforts to search for her daughter but could not find her and then she reported the matter to the police and police recorded her statement which is Ex.PW3/A. According to the witness, one day her daughter "S" was going to her school when the accused Rohit had taken her away and State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 6 of 33 kept with him for about quarter to three months forcibly against the wishes of her daughter. Witness has further deposed that, on suspicion, the police interrogated the brother of Rohit namely Raj Kumar who disclosed the whereabout of Rohit and her daughter pursuant to which the police recovered her daughter in her presence after which police prepared a memo Ex.PW3/B. Witness has further deposed that after the recovery of her daughter from the confinement of accused, she (prosecutrix) was got medically examined by police in BSA hospital.
In leading question put by Ld. APP, the witness has admitted that her daughter "S" went missing on 17.11.2007.
In her crossexamination by Ld. Defence Counsel, the witness has deposed that nobody told her regarding her daughter going missing and has voluntarily added that the accused was earlier giving threats to abduct her daughter therefore she went to police station and lodged report. According to the witness, she did not go to Uttam Nagar along with the police and was also not with the police when accused was arrested. Witness has admitted that her daughter refused to go with her when produced before the Ld. MM and has voluntarily stated that she was under threat that is why she refused to accompany her (witness). She has denied the suggestion that she ever approached Ram Lila Committee at B9, Sector 3, Rohini for marriage of her daughter as every year they perform the marriage of State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 7 of 33 poor girls or that her daughter filed affidavit that she is over 18 years of age or that the said marriage could not solemnized as Ramlila committee came to know about the present case. According to her, the police recorded her statement on every visit to police station but she was not aware of any proceedings being illiterate. Witness has denied the suggestion that she lodged false report or that her daughter had love relations with accused Rohit and she had the knowledge of the same.
PW6 Vidya Dhar has brought the admission and withdrawal register of school pertaining to the prosecutrix 'S' and as per the said documents her date of birth is 02.04.1995, the copy of admission and withdrawal register is Ex.PW6/A and the relevant entry bearing No. 7590 is encircled at point A, the transfer certificate of previous school is Ex.PW6/B and date of birth has been mentioned on Ex.PW6/B. PW8 R. C. Yadav, Principal Govt. Sarvodaya Vidyalaya, Sector 3, Rohini, has brought the original Admission Register showing that the prosecutrix was studying in Class VIIC and her name was struck off on 11.12.2007. As per the school record her date of birth is mentioned as 02.04.1995. The witness has proved the certificate in this regard issued by him which is Ex.PW8/A. He has also brought the Admission Form of the prosecutrix Ex.PW8/B. The witness has not been cross examined on behalf of the accused. State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 8 of 33 Medical / Forensic Evidence:
PW1 Dr. Rajesh has deposed that on 12.2.2008 at about 10:35 AM, Rohit Kumar was referred to him by CMO for medical examination. According to the witness, on examination and history suggests no evidence that he is not unfit for sex. He has given his report which is Ex.PW1/A. This witness has not been cross examined on behalf of the accused despite opportunity and the evidence has gone uncontroverted.
PW5 Dr. Mamta has deposed that the gynecological examination of "S" was done by Dr. Anuja Garg, SR Gynae who has left the hospital and her present whereabouts are not known. Witness has further deposed that she can identify the handwriting and signatures of Dr. Anuja Garg as she had seen her while writing and singing in the course of her official duties. The MLC of the prosecutrix is Ex.PW5/A. Witness has further deposed that after examination of prosecutrix, Dr. Anuja Garg has observed that hymen was ruptured, vagina was admitting two fingers and as per vagina examination, cervix was forward, uterus retroverted and normal size. According to the witness, the undergarments of the prosecutrix, her pubic hair, her nail, two blood samples, cervical smear, cervical swab, vaginal smear, vaginal swab were taken. The discharge slip of the prosecutrix is Ex.PW5/B bearing the signatures of Dr. Anuja Garg at point A. State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 9 of 33 PW7 Dr. Anupa Singhal has deposed that on 12.02.2008 he was posted at BSA hospital as CMO on duty when the prosecutrix 'S' was brought by W/Ct. Monika for her medical examination. According to the witness, she examined the patient and found that patient was stable and no obvious external injuries were seen on which patient was referred to Senior Resident, Gynae department for sexual assault examination. Witness has further deposed that she had also advised for bone age examination of the patient, her signatures appears at point X and Y on MLC on Ex.PW5/A and examination and observations are encircled in point Z. In her cross examination, the witness has deposed that she had only referred the patient for the bone age examination.
PW11 Naresh Kumar, (Sr. Scientific Assistant, FSL) has deposed that on 17.3.2008 two sealed parcels sealed with the seal of SD were received in his office which were marked to him for examination. According to him the had examined the exhibits biologically and serologically and prepared a detailed reports Ex.PW11/A and Ex.PW11/B. The witness has not been cross examined on behalf of the accused despite opportunity.
PW16 Dr. Pankaj Verma has proved the MLC of Rohit prepared by Dr. Rajesh and has identified his signatures on the MLC Ex.PW16A having seen him writing and signing having worked with him. According to the witness, as per the MLC, Dr. Rajesh had State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 10 of 33 opined that there was nothing to suggest that the patient Rohit was not fit for sex which endorsement is from point X to X bearing the signatures of Dr. Rajesh at point A on Ex.PW16/A. The witness has not been cross examined on behalf of the accused despite opportunity.
Police / Official Witnesses:
PW4 HC Radhir Singh has deposed that on 17/18.11.2007 he was on night duty from 12 PM to 8 PM and at 2:05 AM ASI Gurjant Singh handed over rukka in police station and he made endorsement on the rukka which is Ex.PW4/A. According to him thereafter he registered FIR No 1055/07 U/S 376/366/363 IPC. Witness has also brought original FIR. According to him the FIR typed on computer on his instructions and he handed over rukka to ASI Gurjant Singh. He has not been cross examined on behalf of the accused despite opportunity and the evidence has gone uncontroverted.
PW9 ASI Gurjant Singh has deposed that on 18.11.2007 he was posted at police station Rohini and on that day he recorded the statement of complainant regarding missing of her younger daughter (prosecutrix) aged about 14 years which statement is Ex.PW3/A. According to him he prepared a tehrir Ex.PW9/A and got the FIR registered and made efforts to search the prosecutrix and State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 11 of 33 the accused but they were not found and thereafter in the month of January, 2008, the investigations was transferred from him.
In his cross examination by Ld. Defence Counsel, the witness has deposed that he obtained the date of birth certificate of the prosecutrix showing her date of birth as 2.4.1995. According to him he did not try to obtain any other documentary proof regarding date of birth of prosecutrix such as MCD certificate or her initial attended school.
PW10 HC Jagdish has deposed that on 12.2.2008 he was working as MHC (M) at Police Station Rohini and on that day W/ASI Nirmala deposited two sealed parcels with sample seal with him along with personal search of the accused and he made entries in this regard at Sl. No. 4277 in Register No.19 copy of which is Ex.PW10/A. According to the witness, on 17.3.2008 the sealed parcels were got deposited through Ct. Satya Prakash to FSL, Rohini vide RC No. 29/21. The witness has further deposed that on 9.7.2008, Ct. Mool Chand deposited two sealed parcels duly sealed with the seal of FSL and result and he made entry in this regard at point Y on Ex.PW10/A and the result was handed over to SI Krishan Kant. The copy of RC 29/21 dated 17.3.08 and copy of receipt are Ex.PW10/B and Ex.PW10/C. According to the witness the case property was not tampered in any manner till it remained in this custody. He has not been cross examined on behalf of the accused. State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 12 of 33
PW12 Ct. Monika has deposed that on 12.2.2008 she along with IO SI Nirmala and Ct. Joginder Singh reached at M2K Cinema where they met a boy namely Raj Kumar who told that Rohit and the prosecutrix likely to come there. According to the witness they waited there for some time and at about 9.15 or 9:30 AM, one boy and a gilr reached at M2K Cinema in the parking with whom Raj Kumar started talking and at the same time she (witness) apprehended the prosecutrix and Ct. Joginder apprehended that boy whose name was later on revealed as Rohit and took both of them to the police booth near M2K Cinema. The witness has deposed that Ct. Joginder had called the mother of prosecutrix to the police booth and thereafter the IO made inquiries from the girl and the accused after which the accused was arrested and recovery of girl was prepared vide Ex.PW3/A. According to the witness, the prosecutrix was got medically examined at BSA hospital and her exhibits were collected vied memo Ex.PW12/A. In her cross examination by Ld. Defence Counsel, the witness has deposed that Raj Kumar was already waiting for them at M2K. According to the witness they reached at M2K Cinema at about 9:10 Am and within 10 to 20 minutes the accused and the prosecutrix reached there. She has deposed that all the proceedings were conducted at M2K Cinema in about one hour and ten minutes. According to the witness, she along with IO and prosecutrix went to State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 13 of 33 the hospital in a TSR and after medical examination of prosecutrix they left for the PS at about 12 noon in another TSR. She has denied the suggestion that accused Rohit himself brought the prosecutrix to the police station or that no proceedings were were conduced at M2K Cinema.
PW13 Ct. Sat Prakash has deposed that on 17.3.2008 he collected the sealed parcels from the MHC (M) and deposited the same to FSL Rohini vide RC No. 29/21 and handed over the receipt of the same to the MHC (M). The witness has not been cross examined on behalf of the accused despite opportunity.
PW14 Sh. Vijay Shankar has deposed that on 16.2.2008 he was posted as MM, Rohini, and on that day an application for recording the statement of prosecutrix under Section 164 Cr.PC was marked to him by the Ld. link MM. According to the witness he recorded the statement of prosecutrix vide Ex.PW2/A and issued his certificate of correctness is Ex.PW14/A. The witness has not been cross examined on behalf of the accused despite opportunity.
PW15 HC Jagdish has deposed that on 12.2.2008 he was working as MHC (M) at Police Station Rohini and on that day ASI Nirmala Devi deposited two pullandas sealed with the seal of SP along with two sample seals of SP vide entry no. 4277 in register no. 19 copy of which is Ex.PW15/A. According to the witness, on 17.3.2008 the sealed parcels with sample seal were sent to FSL State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 14 of 33 through Ct. Sat Prakash vide RC No. 29/21 and he made entry at point X on Ex.PW15/A in this regard. The witness has deposed that on 9.7.2008 Ct. Mool Chand deposited the sealed parcels with FSL result and he made entry in this regard at point Y on Ex.PW15/A. The copy of RC No. 29/21 is Ex.PW15/B and the FSL receipt is Ex.PW15/C. The witness has not been cross examined on behalf of the accused despite opportunity.
PW17 Ct. Jogender Singh has deposed that on 12.2.2008 he along with W/ASI Nirmala and Ct. Monika went to parking M2K Cinema where at the instance of Raj Kumar, the prosecutrix and the accused were apprehended after which accused was arrested vide memo Ex.PW17/A and his personal search was conducted vide memo Ex.PW17/B. According to the witness, the accused was taken to BSA hospital and got medically examined and his exhibits were taken into possession by the IO vide memo Ex.PW17/C. He has deposed that the prosecutrix was identified by her mother at M2K. Cross examination of this witness was deferred but thereafter he was never recalled.
PW18 SI Nirmala has deposed that on 11.02.2008 she went to the house of the prosecutrix for inquiries and came to know that they raised a suspicion on Rohit. She also came to know that the brother of Rohit knew the whereabouts of prosecutrix and Rohit and State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 15 of 33 on this, she went to M2K where she met Raj Kumar the brother of Rohit and made inquiries from him who ensured that Rohit would be called on the next day and asked her (witness) to come at M2K itself. According to the witness, on the next day, i.e 12.02.2008, she along with Ct. Monika, Ct. Yogender went to M2K where they reached at 9.30 a.m and found Raj Kumar the brother of Rohit standing there and after sometime they noticed Rohit and the prosecutrix coming from the park side. The witness has deposed that at the pointing out of Raj Kumar, both the prosecutrix and the accused were apprehended and were taken to M2K police booth and were interrogated and searched. According to the witness, Raj Kumar and Ct. Yogender were sent to the house of prosecutrix and the mother of the prosecutrix was called to M2K police booth. She thereafter recorded the statement of the prosecutrix was recorded and also arrested the accused Rohit vide Ex.PW17/A and conducted his personal search vide memo Ex.PW17/B. According to the witness, thereafter both the prosecutrix and the accused were taken to Baba Saheb Ambedkar Hospital where the medical examination of the prosecutrix and the accused were got conducted and she collected the MLC of the prosecutrix and the accused. She also also handed over 9 sealed pullandas duly sealed with the seal of the hospital/doctor which were seized by her vide memo Ex.PW17/C. According to the witness the accused was thereafter produced in the court and he was State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 16 of 33 remanded to judicial custody by Ld M.M and the prosecutrix was sent to the Nari Niketan.
In her cross examination by Ld. Defence Counsel the witness has deposed that at the time when the prosecutrix was recovered, she was wearing a mangalsutra and had sindoor on her forehead. Witness has admitted that the prosecutrix had told them that she had got married to the accused and also informed that she was an adult and has got married to the accused of her own free will. Witness has denied that prosecutrix was appearing to be a major and has voluntarily added that the prosecutrix appeared to be 15 years of age. Witness has deposed that the prosecutrix did not disclose the place as to where she was residing with the accused for the last two months prior to her apprehension. According to the witness, she did not conduct any investigations on the aspect where Rohit and the prosecutrix were residing for two months and also did not carry out any interrogation of the landlord, and has voluntarily added that she did not know who the landlord was. The witness has denied the suggestion that the ossification test of the prosecutrix was not conducted despite the medical advise. Witness has voluntarily added that XRays of prosecutrix were taken, but she (witness) does not know why the subsequent IO did not collect the report. The witness has deposed that she did not make any inquiries with regard to the school which the prosecutrix had attended initially wherein her State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 17 of 33 date of birth was mentioned. She deposed that no public witness was associated in the investigations at M2K. She did not ask any public witness to join the investigations nor she associate any police officer present in the booth in the investigations. The witness has admitted that the prosecutrix and the accused were behaving in a friendly manner with each other at the time when they were apprehended by her. Witness has denied the suggestion that the prosecutrix was quarreling with her mother when she apprehended with her, and has voluntarily added that it was the mother who was abusing her. The witness has admitted that it was on the information given by the mother that the prosecutrix was a minor and even below 16 years of age that the accused had been apprehended and produced before the Ld M.M. Witness has denied that the accused was never apprehended in the aforesaid manner and had voluntarily surrendered in the police station.
Statement of Accused After completing the prosecution evidence, statement of accused was recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material was put to him which he denied. He has stated that he has been falsely implicated by the mother of the prosecutrix. According to him in fact the prosecutrix was having an affair with him and was willing to marry him but her State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 18 of 33 mother opposed the same. The accused has further stated that the prosecutrix had accompanied him voluntarily with her own consent and free will and stayed with him at Uttam Nagar for three months. According to the accused, he had never committed any wrong or harassment upon her. He has deposed that when he came to know about the present case he voluntarily came to the police station where he was arrested at the instance of the mother of prosecutrix. According to the accused, the prosecutrix who initially supported him before the police and also before Ld. Magistrate when her statement u/s 164 Cr.PC was recorded, have been forced by her mother to depose falsely against him in the court.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also considered the testimonies of various witnesses examined by the prosecution and also the written memorandum of arguments filed on behalf of the accused. My findings are as under:
Identity of the accused:
In so far as the identity of the accused is concerned, it is not disputed since has been specifically identified in the court by the prosecutrix (PW2) and her mother / complainant Tara (PW3) and I therefore hold that identity of accused stands established. State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 19 of 33 Age of the prosecutrix:
In so far as the age of the prosecutrix is concerned, there is a serious doubt since except for the school certificate Ex.PW8/A duly proved by the Principal of the school, there is no other material on record. In the said certificate, her date of birth has been shown as 2.4.1995. In this regard, the Principal of the school has duly proved the admission form showing that the prosecutrix was directly transferred from MCD School, 3rd Class, Sector 3, Rohini, to their school and her date of birth has been mentioned as 2.4.1995. It is evident that there is nothing to show that the said date of birth had been given on the basis of some authentic and credible government record. It is further evident from the judicial record that at the time of the incident, the ossification test of the prosecutrix had been recommended but the same was not got conducted. Now in the year 2012 under the directions of this court the ossification test of the prosecutrix has been got conducted which is not disputed by the accused, which shows the present estimated age of the prosecutrix between 17 to 19 years and therefore under these circumstances taking the age of the prosecutrix on the higher side by giving benefit of one year, it is writ large that the estimated age of the prosecutrix at the time of the incident when she was recovered in the month of February, 2008, was around 16 years and she was hence competent to give her consent.
State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 20 of 33
Medical and Forensic Evidence:
At the time when the prosecutrix was recovered, she was living with the accused and has given her age as 14 years. As per the MLC her hymen was found to be raptured confirming sexual intercourse but there was no injury mark on her body. Here I may observe that the doctor on duty had specifically advised for ossification / age determination test of the prosecutrix but nor the said test has been got conducted nor the record has been placed on record. Further, the MLC of the accused does not show that he was not capable of performing sex. Further, the forensic report Ex.PW11/A has been duly proved by PW11 Dr. Naresh Kumar and it is evident that semen had been detected on cervical smear, vaginal swab, smemga culture swab of accused which conclusively proves and establishes the cohabition and sexual intercourse between the prosecutrix and the accused.
Statement of Prosecutrix under Section 164 Cr.PC:
The Ld. MM Sh. Vijay Shankar has duly proved the statement of prosecutrix recorded by him under Section 164 Cr.PC which is Ex.PW2/A. The Ld. MM has not been crossexamined on this aspect at all. In her statement under Section 164 Cr.PC the prosecutrix has stated that she had gone with her husband and has confirmed that she had married the accused Rohit. She also told the State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 21 of 33 Ld. MM that she did not want to go with her parents as her mother had attempted to kill her by administering poison to her on which she was taken to Jaipur Golden Hospital by her husband and she could be saved. She further told to Ld. MM that her age was 19 years and her husband should be released. She also expressed her apprehension that her family would kill her. The statement of prosecutrix under Section 164 Cr.PC is as under:
" mai apne pati ke saath gai thi. Maine teen mahine pehle Rohit se saadi ki thi. Mai apne mummy papa ke sath nahi jana chahti. Mai apne pati ke sath rehna chahti hoon. Meri mummy ne mujhe jaan se marne ki koshish ki thi. Meri mummy ne mujhe zahar khilaya tha. Fir mere pati mujhe Jaipur Golden Hospital le gaye thye. Wahan doctor ne kaha ulti karo to ulti nahi hui. Fir uske baad Naharpur Dr. Hande ke paas gaye. Fir unhone ORS peene ko kaha. Fir maine pee liya aur meri jaan bach gai.
Mere pati ki koi galati nahi hai. Wo mujhe nahi le gaye thye, mai hi unhe le gai thi. Meri mummy ne meri umar galat likhwa rakhi hai. Meri umar 19 saal ki hai. Mujhe aur pere pati ko jaldi chhora jaye. Mere ghar wale hume jaan se maarne ki dhamki de rahe hain. Aur kuch nahi kehena."
I may observe that the statement under Section 164 Cr.PC recorded by the Ld. MM on 16.2.2008 was the first statement made by the prosecutrix with her existing status at the time when she was recovered. Further, it is evident from the testimony of Investigating State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 22 of 33 Officer and other police witnesses that on 12.2.2008 Ct. Jogender along with W/ASI Nirmala and W/Ct. Monika on receipt of information from one Raj Kumar (brother of accused) reached at M2K Cinema from where both accused and the prosecutrix were apprehended. It is evident from the cross examination of SI Nirmala (PW18) that at the time the prosecutrix was recovered she was wearing mangalsutra and sindoor on her forehead and she had also told them that she had married to the accused. The prosecutrix further informed the police that she was adult and had married to the accused with her own free will. Prosecutrix also did not inform the police where she had been residing with the accused last two months prior her apprehension.
When the prosecutrix 'S' was produced before the court in September 2008, she was produced by her parents, and has deposed that the accused along with his brother Raj Kumar and one Ram Ashish had taken her in a TSR to Uttam Nagar where the accused took a room on rent and kept her there and raped her repeatedly for about one month. She also stated that thereafter the accused took her to Sri Chand park and kept her there for about two months where he raped her and used to beat her and threatened her, when her brother and mother came when the accused was not present and had gone for work and therefore she informed the accused on telephone at about 9.00 PM and asked him to come back as her mother and brother had State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 23 of 33 come and thereafter the accused came at about 12 midnight and threatened her and asked her not to give statement against him otherwise he would kidnap her sister also. The prosecutrix further testified that thereafter the accused telephoned his brother who also came to the room along with one person and they all came to the police station and and thereafter she was taken to Ambedkar where her medical examination was got conducted.
I may observe that this story put forward by the prosecutrix for the first time in the court finds no corroboration from any source not to even from her earlier statement to the Ld. MM under Section 164 Cr.PC and so much so even the police officials who recovered her have deposed that the prosecutrix and accused were pointed out to them by Raj Kumar, the brother of the accused. The prosecutrix had studied till class 11th and it is evident from her testimony that she was kept in a premises where many other persons were residing and using common toilet which was separate from her room and despite opportunity, she did not raise any alarm at any point of time nor she informed any person with regard to the threats given to her by the accused. Further, she has alleged for the first time that the accused kept her in a public park for two months and repeatedly raped her. It is not possible that the accused would keep her in a public park for about two months and repeatedly commit rape upon her without any person noticing the same or without her State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 24 of 33 bringing the incident to the notice of any person. I may further add that during the cross examination when the prosecutrix was questioned repeatedly as to how the accused had taken her for the first time to Uttam Nagar, she simply states that she does not remember anything and later stated that when she was brought to the police station the accused brought her in a TSR. The testimony of the prosecutrix inspires no confidence and does not appears to be voluntarily and truthful. After she was recovered she refused to go with her parents and therefore the Ld. MM sent her Nirmal Chhaya but when she came to the court to depose she came along with her parents and has put forward a new story which finds no corroboration from any other source. Therefore the possibility of having been tutored by her parents cannot be ruled out. In this background, I hold that in so far as the allegations made against the accused under Section 366/376 Indian Penal Code are concerned, they are devoid of any merits. However, the accused Rohit Kumar Dass having taken away the prosecutrix 'S' a minor below 18 years of age from the lawful guardianship of her parents, would be technically liable for the offence under Section 363 Indian Penal Code.
FINAL CONCLUSION:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 25 of 33 tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the above principles of law to the facts of present case, it is evident that the identity of the accused Rohit Kumar Dass stands established. He was known to the prosecutrix 'S' State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 26 of 33 even prior to the incident. It also stands established that the age of the prosecutrix was around 16 years in the month of February 2008. It also stands established that on 12.2.2008 the accused had taken away the prosecutrix 'S' out of her lawful guardianship of her parents. The medical and forensic evidence establishes the cohabitation and sexual intercourse between the prosecutrix and the accused. However, the testimony of the prosecutrix does not inspire confidence and does not appear to be voluntary and truthful in so far as the allegations of the accused having kidnapped the prosecutrix and having committed rape upon the prosecutrix.
It stands established that the prosecutrix was got recovered near M2K along with the accused Rohit Kumar Dass. It does not establishes that the prosecutrix had been forcibly taken by the accused rather it appears that she had gone by her own consent and had been residing with him as his wife from November 2007 till 12.2.2008 i.e. on the date when she was recovered on the pointing out of the brother of the accused namely Raj Kumar and during this period had physical relations with the accused with her consent. It also stands established that after the prosecutrix was recovered she refused to go with her parents and therefore the Ld. MM sent her to Nirmal Chaya. It is further evident that when the prosecutrix came to the Court to depose she came along with her parents, she put forward a new version for the first time which finds no corroboration from State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 27 of 33 any other source and therefore the possibility of the prosecutrix having been tutored by her parents cannot be ruled out. In view of the above I hereby hold that in so far as the allegations allegations under Section 366 and 376 Indian Penal Code are concerned, they are devoid of merits. However, since technically the prosecutrix was a minor at the time of incident being below the age of 18 years of age (i.e. around 16 years of age) and the accused had taken her out of the lawful guardianship of her parents without their permission, therefore, he is liable for the offence under Section 363 Indian Penal Code.
In view of the above discussions, the accused Rohit Kumar Dass is hereby acquitted of the charges under Section 366 and 376 Indian Penal Code. However, he has been held guilty for the offence under Section 363 Indian Penal Code and accordingly convicted.
Be listed for arguments on sentence at 2:00 PM.
Announced in the open court (Dr. KAMINI LAU) Dated: 02.04.2012 ASJ (NW)II: ROHINI State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 28 of 33 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 124/2011 Unique Case ID: 02404R0057472008 State Vs. Rohit Kumar Dass S/o Kishori Dass R/o Village Sariya Munsi Tola PO Balsand, PS Balsand Distt.: Sitabadi, Bihar (Convicted) FIR No. : 1055/2007 Under Section : 363/366/376 Indian Penal Code. Police Station : Rohini Date of Judgment : 02.04.2012 Arguments heard on : 02.04.2012 Date of Sentence : 02.04.2012 APPEARANCE: Present: Additional Public Prosecutor for the State.
Convict Rohit Kumar Dass with Sh. Sudhir Shokeen Advocate.
ORDER ON SENTENCE:
Vide a detailed judgment of even date the accused Rohit Kumar Dass has been held guilty of the offence under Section 363 State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 29 of 33 Indian Penal Code. However, he has been acquitted of the charges under Section 366 and 376 Indian Penal Code.
As per allegations on 17.11.2007 at about 7:00 PM at Jhuggi No. 145, Indra JJ Camp JPG Hospital, Delhi the accused Rohit Kumar Dass kidnapped the prosecutrix 'S' a minor girl aged about 14 years out of the lawful guardianship of her parents with intent to seduce her to illicit intercourse. It is also alleged that the accused Rohit Kumar Dass committed rape upon the prosecutrix 'S' against her wishes.
It is evident from the record that the present case under Section 363/366/376 Indian Penal Code was registered on the basis of the complaint given by the mother of the prosecutrix namely Smt. Tara wife of Ram Prashad to the extent that her daughter had gone missing on 17.11.2007 and was not traceable. On 12.2.2008 the prosecutrix was got recovered near M2K along with the accused Rohit Kumar Dass. On the basis of the testimonies of the various witnesses including the testimony of the prosecutrix, testimony of her mother, medical record of the prosecutrix and the school record of the prosecutrix it is writ large that the allegations under Section 366 and 376 Indian Penal Code do not stand established beyond reasonable doubt for which benefit of doubt has been given to the accused Rohit Kumar Dass. It is however evident that the prosecutrix had willfully gone with the accused by her own consent and had been State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 30 of 33 residing with him as his wife from November 2007 till 12.2.2008 i.e. on the date when she was recovered on the pointing out of the brother of the accused namely Raj Kumar. It is also evident that the prosecutrix had sindoor on her forehead and was also wearing a Mangalsutra at that time and had also informed the Investigating Officer that she had married the accused. Immediately thereafter the prosecutrix had also told the Ld. MM in her statement under Section 164 Cr.P.C. that she had been residing with the accused who was her husband and wanted to go with him and also that she was apprehending threat to her life from her parents and that her mother had tried to poison her when she was saved by the accused. This being the background, since technically the prosecutrix was a minor at the time of incident being below the age of 18 years of age (i.e. around 16 years of age) and the accused had taken her out of the lawful guardianship of her parents without their permission, he has been held guilty of the offence under Section 363 Indian Penal Code and accordingly convicted.
Heard arguments on the point of sentence. The convict Rohit Kumar Dass a young boy of 27 years is totally illiterate and is a Labour by profession. He has a family comprising of aged parents, one younger brother and one married sister. He is first time offender and has no criminal background and has already remained in judicial custody for a period of Five Months and Twenty Days. State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 31 of 33
Ld. Counsel for the convict has vehemently argued that the a lenient view be taken against the convict Rohit Kumar Dass keeping in view his young age and the fact that he is not a habitual criminal. He has argued that the convict is a helping hand of his family and any stern view would be prejudicial not only to the convict but also to his entire family. The Ld. Addl. PP for the State on the other had has argued that keeping in view the nature of offence, a strict punishment may be awarded to the convict.
I have considered the rival contentions. The convict is a young boy of 27 years with no criminal background. This is in fact an unfortunate case where the love affair has gone wrong and any harsh view would ruin the future of the convict. This being the background, I hereby hold that the interest of justice would suffice if the convict Rohit Kumar Dass is sentenced to Rigorous Imprisonment for the period already undergone i.e. Five months & twenty days and fine to the tune of Rs.1,000/ for the offence under Section 363 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 5 days.
Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial as per rules.
The convict has been informed that he has a right to prefer an appeal against this judgment. He has been apprised that in State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 32 of 33 case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached along with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 2.4.2012 ASJ (NW)II: ROHINI
State Vs. Rohit Kumar Dass, FIR No.1055/07, PS Rohini Page 33 of 33