Delhi District Court
State vs . Pawan Kumar on 24 September, 2013
IN THE COURT OF SHRI YOGESH KHANNA, SPECIAL FAST TRACK COURT: SAKET COURTS: NEW DELHI. SC No. : 152/2013 FIR No. : 190/2012 U/s. : 365 / 376 / 506 IPC PS : Sangam Vihar State (Govt. of NCT of Delhi) ........................ Complainant. Versus Pawan Kumar S/o Anil Kumar R/o K-1/18/463, Sangam Vihar, New Delhi. .........................Accused person Date of Institution : 08.03.2013 Judgment reserved for orders on : 24.09.2013 Date of pronouncement : 24.09.2013 JUDGMENT
1. On 18.05.2012 a complaint was lodged by the prosecutrix at police station Sangam Vihar stating inter alia that ;
" A boy Pawan S/o Anil Kumar had kidnapped me on 5.5.2012 at around
2.45PM when I was going to Khazani Institute for study. The accused pulled me inside a grey colour car and put some intoxicating substance on my nose and I fell unconscious. After some time I regained my senses but he broke the SIM of my mobile and then took me to Haridwar where we State vs. Pawan Kumar SC No. : 152/2013 FIR No. : 190/2012 PS : Sangam Vihar Page No. 1 stayed for 5 days. Every day he used to commit sexual intercourse with me saying that if he would have a child and then no one could separate us. He also used to threaten that if I would complaint to my parents he had 50 boys who would kill my brother. Once he had suspicion that police might have been informed so he brought me to Dehradun. He used to take the medicines for enhancing sexual power and used to harass me day and night. I was kept in a lodge at Dehradun. One day in the morning, I ran away and the accused followed me. I had Rs. 500/- with me which he wanted to take but I told him that the said money is given to me by my grand father. I reached Vikas Nagar but he caught hold of me. He used to pressurize me to put sindoor on my forehead so that people would think that we are married. On my refusal he used to beat me. He continued committing intercourse with me. He used to slap me and would beat me quite often. On 14.5.2012, Monday, we reached Delhi and we reached the court but a witness told the accused that my family members were coming to the court, so the accused took State vs. Pawan Kumar SC No. : 152/2013 FIR No. : 190/2012 PS : Sangam Vihar Page No. 2 me away from the court.
On 15.5.2013 he took me to Tis Hazari Courts by covering my face with a dupatta. The Notary there asked me if I am inclined to marry him and at that time accused Pawan had put a knife at my back and he had threatened me, so I sign the said documents due to fear. Thereafter we went to Arya Samaj Mandir, Yamuna Bazar, Delhi where we got married. However no marriage certificate / proof was given to us as we did not have any I/D proof. Thereafter he took me to Noida, UP at the house of one Chattar Singh. Today in the morning we came to Mithapur. Accused went to take a bottle of water and I slipped away from his custody and came to gali no. 6 where I borrowed the telephone of someone and rang my brother . Both my brothers and my brother in law came there and they brought me to the police station, where I had lodged this complaint.
2. On the basis of her complaint, FIR No. 190/12 u/s. 365/376/506 IPC was registered at police station Sangam Vihar, New Delhi. During the course of investigation, accused was arrested and later the charge sheet was filed. Since it was a Session's triable case, it was committed to this court.
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3. On 15.04.2013, charges u/s. 365/344; 328/376; & 384 IPC were framed against accused and he pleaded not guilty and claimed trial.
4. The prosecution till date had examined 11 witnesses.
5. Before proceeding further, it would be appropriate, if I state in brief the statements made by the prosecution witnesses.
PW-1, Ct. Shish Pal, is a witness of preparation of site plan of the place of kidnapping.
PW-2, W/Ct. Sunita deposed that she had taken the prosecutrix to AIIMS Hospital for her medical examination where doctor had handed her a sealed parcel containing the exhibits of the prosecutrix along with a sample seal; seized by the investigating officer vide seizure memo Ex. PW-2/A. PW-5, Dr. Unnati had examined the prosecutrix on 19.5.2012 and prepared the MLC Ex. PW-5/A. As per history given by the prosecutrix, she was kidnapped by the accused on 5.5.2012 and was forcibly taken to Haridwar. She got married to him on 15.5.2012 in Tis Hazari Courts and had regular sexual intercourse with him since last 13 days. She also gave the history of physical assault but no injury marks were found on her body and her hymen was State vs. Pawan Kumar SC No. : 152/2013 FIR No. : 190/2012 PS : Sangam Vihar Page No. 4 found torn.
PW-6, SI Inderjeet Singh recorded the statement of one Pankaj; prepared the charge sheet and filed it in the court. He also tendered in evidence the supplementary charge sheet qua the FSL report Ex. PW-6/A. PW-7 Ved Prakash deposed that accused was his tenant and he stayed for 4 / 5 days in his house with the prosecutrix, as his wife. No rent agreement was executed.
PW-8 Ct. Bajrang Lal, a witness of arrest of accused, deposed that accused was arrested vide arrest memo Ex. PW-8/A; his personal search was conducted vide memo Ex. PW-8/B, his disclosure statement Ex. PW-8/C was recorded and accused was taken for his medical examination. The examining doctor handed over the exhibits concerning the accused with a sample seal which he gave to the investigating officer; seized vide seizure memo Ex. PW-8/D. PW-9 Shahi Kumar, the proprietor of a guest house namely Ganesh Yatri Niwas, Haridwar deposed that on 6.5.2012 accused State vs. Pawan Kumar SC No. : 152/2013 FIR No. : 190/2012 PS : Sangam Vihar Page No. 5 accompanied by a lady had stayed there till 9.5.2012 and proved the relevant record Ex. PW-9/A in this regard.
PW-10,W/Inspector Sushma Tyagi, on 14.8.2012 had sent the exhibits of accused Pawan to FSL, Rohini. She had also prepared the site plan Ex. PW-10/A of the place of kidnapping, at the instance of the prosecutrix.
PW-11, ASI Pritam Singh deposed that on 28.5.2012 he got sent the exhibits pertaining to the prosecutrix to FSL, Rohini for examination. On 8.6.2012, he had arrested the accused; prepared the arrest documents; seized the exhibits of accused given by the doctor vide seizure memo Ex. PW-8/A ; collected the record of hotel register from Haridwar and Dehradun and proved it as Ex. PW-9/A; obtained the document Ex. PW-11/A regarding the timing of the classes of the prosecutrix; obtained the marriage certificate Ex. PW-3/C and photographs Ex. P1 to Ex.P3. He further deposed that accused had stayed at Mithapur, Badarpur, New Delhi with the prosecutrix.
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6. Before proceeding further, I need to discuss the deposition of the prosecutrix.
She has been examined as PW-3 and she deposed that she knew accused as he was residing near her house. She had studied upto 2nd year of B.Com. She deposed that she had married the accused but on account of some domestic problems, she is not residing with the accused. She still wish to live with the accused and that whatever has happened to her was with her consent.
During her cross examination, she denied that accused had ever kidnapped her on 5.5.2012 at about 2.45PM or had ever drugged her inside any car or had ever made her inhale any intoxicating substance or that she ever became unconscious or that accused broke her SIM or had forcibly taken her to Haridwar or had committed sexual assault without her consent. She also denied as to if the accused had ever threatened her to kill her brother. She also denied that she ever tried to flee from the place where accused had kept her or that the accused caught hold of her or gave any beatings to her. She further deposed that accused had ever taken her to Noida or to Mithapur or she ever managed to State vs. Pawan Kumar SC No. : 152/2013 FIR No. : 190/2012 PS : Sangam Vihar Page No. 7 flee from there. However she admitted that on 18.5.12, she along with her brothers and brother in law went to police station and lodged a complaint Ex. PW-3/A. However she denied the contents of her complaint Ex. PW-3/A and even denied making statement Ex. PW-3/A1. She admitted that she gave the statement u/s. 164 CrPC and the same is Ex. PW-3/B. She also admitted that she was medically examined on 19.5.2012; the marriage certificate Ex. PW-3/C and the photographs Ex. P1 to Ex. P3.
PW-4 Smt. Lalita Jha, the mother of prosecutrix, deposed that on 5.5.2012 her daughter went missing but returned on 18.5.2012 ; she received a call that she is present somewhere in Meethapur and thereafter she sent her son and son of her Jeth to bring the prosecutrix back. The prosecutrix told her that she had gone to Haridwar with accused and that whenever she would try to flee, accused used to catch hold of her and used to beat her. She took the prosecutrix to police station and made a complaint.
In response of a court question she replied that she never wished to file the case but looking at the conduct of the family of accused as they had abused and beaten her, she filed this case.
State vs. Pawan Kumar SC No. : 152/2013 FIR No. : 190/2012 PS : Sangam Vihar Page No. 8 She further deposed that on 5.5.2012 at about 8PM, the mother of accused came to her house and told her that the prosecutrix had taken away the accused. She further deposed that 1st wife of accused had filed a complaint against the accused u/s. 498A IPC and that in the said complaint, the 1st wife of the accused had also named her and the prosecutrix as accused, though the said case was later on settled.
7. A bare perusal of the statement of prosecutrix do not show the prosecutrix was ever kidnapped or abducted or drugged or was made to inhale any intoxicating substance or was forcibly taken to Haridwar and to Dehradun by the accused, where she was allegedly kept or forcibly raped. PW-4, the mother of the prosecutrix deposed that the prosecutrix had told her that she had gone with accused to Haridwar and Dehradun but when the prosecutrix tried to flee from the custody of accused , he used to beat her. However, this part of the evidence can at best be treated as hearsay evidence and is of no value as the prosecutrix had not supported this version. The prosecutrix is the best person to depose if an offence was ever committed against her. Rather she deposed that she had married with the accused and it was only due to some family dispute, all this had happened. The prosecutrix had proved her marriage certificate Ex. PW-3/C, her photographs Ex. P-1, Ex. P-2 & Ex. P-3. In the event of her admission that she had married the accused and had lodged this complaint due to some domestic State vs. Pawan Kumar SC No. : 152/2013 FIR No. : 190/2012 PS : Sangam Vihar Page No. 9 problems, the deposition of her mother losses its relevance as also the statement u/s. 164 CrPC of the prosecutrix which she had given to the Ld. Magistrate.
8. Hence I am of the considered opinion that in view of the contradictory evidence, it would not be appropriate to convict the accused for the offences he is charged with merely on the statement u/s. 164 CrPC or on the basis of the deposition of the mother of the prosecutrix as the prosecutrix herself has failed to support the case of the prosecution. Even there is no need for recording statement of accused u/s. 313 CrPC.
9. Hence it can safely be said that the prosecution has failed to prove its case against the accused beyond reasonable doubt and the accused is entitled to be acquitted of the charges u/s. 365/344 ; 328/376 : & 384 IPC. Thus is acquitted.
10. Personal bond of accused stands cancelled, his surety stands discharged.
11. The accused to comply with the provisions of section 437(A) IPC. File be consigned to record room.
Announced in the open court today i.e. 24-09-2013. (Yogesh Khanna ) ASJ-Spl. FTC / Saket Courts New Delhi.
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