Delhi District Court
State vs . Bimal on 16 September, 2013
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No.33/13)
Unique ID case No. 02404R0043002013
State Vs. Bimal
FIR No. : 254/12
U/s : 363/366/376 IPC
P.S. : Kanjhawala
State Vs. Bimal
s/o Sh. Tilak Prasad
r/o Village Mohamadpur,
Post Office Samaspur,
Tehsil Sandila,
P.S. Bagholi,
District Hardoi, U.P.
Date of institution of case 02.02.2013
Date on which, judgment has been reserved 16.09.2013
Date of pronouncement of judgment 16.09.2013
JUDGMENT:
1 Investigations in the present case commenced on 21.11.2012 when complainant Kalua Singh went to Police Station Kanjhawala and gave his statement Ex.PW8/A wherein he stated that he was residing at Ranbir Singh Ka Makaan, Village SC No. 33/13 State Vs. Bimal Page Nos. 1 of 24 2 Punjab Khor, Delhi, with his family, as a tenant and that he was permanent resident of Village Thona, Tehsil Sayana, Police Station Khanpur, District Bulandshehar, UP, and that since last about 10 years he had been working as agriculturist in the fields of farmers at Punjab Khor. He further stated that he was having four children i.e. four daughters and that prosecutrix was his eldest daughter and was aged about 15 years. He then gave description of his daughter as well as clothes which she was wearing and stated that on 15.11.2012, he along with his wife had gone for work in the fields, leaving behind their daughters at home and that at about 7:30 PM when he and his wife came back home from work, they found their daughter missing from home and that he made search for her in the nearby areas but there was no clue of her and that Bimal, who was residing in a room adjacent to his room, was also found missing and that he made inquiries from his brother Desh Raj (of accused), who told him that Bimal was also missing since that day. He further stated that on 17.11.2012 he and Desh Raj, brother of accused Bimal, went to village of accused i.e. village Mohammadpur, District Hardoi, UP, where they came to know that Bimal had taken the prosecutrix away from there and that on the same day in the early morning they had left village for some other place and that Desh Raj gave complainant assurance that within four days, he would bring the prosecutrix before him (complainant) and that on 18.11.2012, he returned back Delhi while Desh Raj remained at village Mohammadpur, UP, and that complainant waited till 21.11.2012 for Desh Raj but he did not bring back complainant's daughter and thus complainant had to file a complaint. He prayed that action be taken in the matter. 2 On the basis of said complaint, a case FIR Ex.PW2/A u/s.363/366 IPC was registered. The investigation of the case was marked to PW12 SI Bijay Singh. On SC No. 33/13 State Vs. Bimal Page Nos. 2 of 24 3 02.12.2012, prosecutrix and accused were caught by the police from Old Delhi Railway Station and brought to PS and on inquiry, prosecutrix gave her statement wherein she disclosed that accused had enticed her away and established physical relations with her forcibly. Thereafter IO took the prosecutrix for medical examination to SGM Hospital and accused was produced before the concerned Court and was remanded to JC. The samples taken during the respective examination of accused and the prosecutrix by the concerned doctors, were seized and deposited in the Malkhana. The prosecutrix was produced before CWC and Section 376 IPC was added in the case. The statement of prosecutrix u/s.164 CrPC i.e. Ex.PW5/C was got recorded. After completing investigations of the case, charge sheet was prepared and filed in the Court. 3 Upon committal of this case to the court of Sessions, charges for the offence under Sections 363/366/376 IPC were framed against the accused Bimal. However, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
4 In order to prove its case, prosecution has examined 12 witnesses : 5 The PW1, Sh. Bhupinder Singh, is the learned MM, who had recorded statement of prosecutrix u/s.164 CrPC. He proved the proceeding conducted by him in this regard as Ex.PW1/A to Ex.PW1/D i.e. Ex.PW1/A - application filed by IO ; Ex.PW1/B - statement of prosecutrix ; Ex.PW1/C - certificate given by learned MM ; and Ex.PW1/D application for supply of copy of the statement. SC No. 33/13 State Vs. Bimal Page Nos. 3 of 24 4 6 The PW2, HC Rajender Kumar, was posted as Duty Officer at P.S. Kanjhawala at the relevant time. He proved the computerized copy of FIR as Ex.PW2/A and endorsement made by him on rukka as Ex.PW2/B. He also stated that he had recorded DD No.33A regarding registration of FIR.
7 The PW3, HC Anoop Singh, was posted as MHC(M) at PS Kanjhawala at the relevant time. He produced the original register No.19 and proved relevant entries of deposit of samples and sending them to FSL as Ex.PW3/A to Ex.PW3/C. 8 The PW4, is the prosecutrix, in the present case. Her testimony shall be discussed at length in the following paragraphs of the judgment. 9 The PW5, Dr. Brijesh Singh, had conducted general medical examination of prosecutrix vide MLC Ex.PW5/A and referred her to gynecology department for further examination and deposed regarding the same. He also proved the MLC of accused as Ex.PW5/B whereupon he had opined that "there is nothing to suggest that this person cannot perform the act of sexual intercourse."
10 The PW6, Dr. Archana, had conducted gynecological examination of prosecutrix. She deposed that on 02.12.2012 prosecutrix was referred to Gynecological Department from Casualty for her medical examination. The PW6 proved the her notes from point "X" to "X1" on the MLC Ex.PW5/A of the prosecutrix and also identified her signatures thereupon.
SC No. 33/13 State Vs. Bimal Page Nos. 4 of 24 5 11 The PW7, Ct. Sandeep, had joined investigation with the IO on 30.11.2012, when accused was arrested by the IO and deposed regarding the same. He proved the memo vide which exhibits from accused were seized as Ex.PW7/X, arrest and personal search memos of accused as Ex.PW7/A and Ex.PW7/B respectively and disclosure statement of accused as Ex.PW7/C. 12 The PW8, Sh. Kalwa Singh, is the father of the prosecutrix. He deposed about the manner in which prosecutrix, his eldest daughter aged about 15 ½ years, had gone missing from the house on 15.11.2012. He also deposed about his suspicion over accused Bimal, who was residing as tenant in a room adjacent to tenanted room of PW8, with his brother and sister and was also found missing on the day of the incident. 13 The PW8 then deposed that on 17.11.2012, he along with Desh Raj, brother of accused, reached village Mohammadpur, District Hardoi, UP, at the native village of accused but on the same day morning accused left with prosecutrix for some other place and that Desh Raj assured the PW8 that he would bring back prosecutrix to PW8 within four days and on his assurance, PW8 returned to Delhi on 18.11.2012. The PW8 waited for Desh Raj, to bring back the prosecutrix, till 21.11.2012 and when he failed to do so, PW8 went to PS and filed complaint Ex.PW8/A. 14 The PW8 further deposed that on 30.11.2012, he along with IO and other police officials went to District Hardoi in search of prosecutrix and the accused but on reaching there, they were informed by Tilak Prasad, father of accused, that the accused might have gone to Village Dhanmau to his relatives house and thereafter PW8 and SC No. 33/13 State Vs. Bimal Page Nos. 5 of 24 6 police party went to said place, where they met Prem Singh, relative of accused, who told them that accused had gone to Delhi with prosecutrix and so PW8 and police party left for Delhi and on 02.12.2012 when they reached Old Delhi Railway Station, PW8 saw accused and prosecutrix standing at a bus stop, outside railway station, and got them apprehended. The PW8 proved the arrest memo of accused as Ex.PW7/A. He further deposed about medical examination of accused and prosecutrix at SGM Hospital. 15 The PW8 also deposed about handing over of school certificate Ex.PW8/B of prosecutrix to IO, who seized the same vide memo Ex.PW8/C. 16 During his crossexamination PW8 stated that prosecutrix was born in village at home and that he did not have any other document of her age. The PW8 denied that he was aware of friendly terms of prosecutrix with accused or that he was opposed to their marriage as they were from different caste. 17 The PW8 was shown a document Ex.PW8/DA i.e. declaration of marriage having photograph of prosecutrix and admitted that Ex.PW8/DA bore photograph of prosecutrix. He also admitted that prosecutrix was also known by name of Chanchal. He denied that he had wrongly mentioned date of birth of prosecutrix in school. 18 The PW9, Lady Constable Kusum Lata, had joined the investigations of the case with the IO on 02.12.2012 on which date medical examination of prosecutrix was got conducted. She proved the seizure memo, vide which exhibits taken from prosecutrix were seized by the IO, as Ex.PW9/A. She further deposed about production SC No. 33/13 State Vs. Bimal Page Nos. 6 of 24 7 of prosecutrix before learned MM for recording of her statement u/s.164 CrPC and taking of prosecutrix to Kasturba Gandhi Memorial Trust, Bakhtawarpur, for safe custody. 19 The PW10, HC Saroj, had joined the investigation of the case with the IO on 03.12.2012 when the prosecutrix was brought from children home at Bakhtawarpur and produced before the concerned CWC where her custody was handed over to her parents after counseling. She proved the seizure memo of school certificate of prosecutrix, produced by her father, as Ex.PW8/C. 20 The PW11, W/SI Satyawati, had partly investigated the case. She deposed that on 03.12.2012 she was handed over investigation of the present case and during the course of said investigation, she seized the school certificate of prosecutrix vide memo Ex.PW8/C. She also proved her application vide which prosecutrix was produced before concerned CWC as Ex.PW11/A. She also deposed about sending of exhibits to FSL and filing of the charge sheet before the concerned Court through SHO. 21 The PW12, SI Bijay Singh, is the investigating officer of the case. He deposed about the investigation carried out by him and the documents prepared by him during the course of investigations. He proved endorsement made by him on rukka Ex.PW2/B. The arrest and personal search memos of the accused and his disclosure statement were proved as Ex.PW7/A to Ex.PW7/C respectively. He further deposed about obtaining the MLCs Ex.PW5/A (of prosecutrix) and Ex.PW5/B (of accused) and seizing of exhibits taken from them by the concerned doctor vide memos Ex.PW9/A (of prosecutrix) and Ex.PW7/X (of accused). The proceedings u/s.164 CrPC were also SC No. 33/13 State Vs. Bimal Page Nos. 7 of 24 8 mentioned by the IO in his statement. The application filed by the IO for sending the prosecutrix to safe custody was proved as Ex.PW12/A. The PW12 further deposed about seizing the school certificate Ex.PW8/B, produced by the father of the prosecutrix, vide seizure memo Ex.PW8/C and about recording of statement of witnesses till further investigations were handed over to W/SI Satyawati.
22 During his crossexamination PW12 denied being aware of the love affair between the prosecutrix and the accused. He also stated that he did not verify about the marriage of the accused and the prosecutrix as he did not have any documentary proof / details of the marriage. He further stated that he had not verified the school certificate of the prosecutrix which was handed over to him by the complainant. 23 After recording the statement of these witnesses, it was seen from perusal of record that the concerned Head Master had not been cited as one of the witnesses in the list of witnesses filed by the IO and considering that the age of the prosecutrix would have a direct bearing on the merits of the case, concerned Head Master was summoned and was examined as PW13.
24 The PW13, Sh. Harender Singh, produced the original admission register pertaining to prosecutrix and stated that as per school record, prosecutrix was admitted in first class and her date of birth was 05.01.1998. He also proved the relevant entry in the admission register as Ex.PW13/A. He further deposed that no proof of birth was taken from the parents of children, who were admitted in first and second class and that only admission form was taken from the parents of the said children and that admission SC No. 33/13 State Vs. Bimal Page Nos. 8 of 24 9 form was generally filled by the staff of the school, however, particulars therein were filled as per information given by the parents. He also stated that no independent verification of date of birth of child, as mentioned by guardian / parents, was done by the school and that this procedure was followed as per instruction of education department in his district but he did not produce copy of the said instruction. 25 After closing of prosecution evidence, statement of accused Bimal was recorded u/s 313 Cr.P.C., wherein he stated that he is innocent and has been falsely implicated in the case. He further deposed that he and prosecutrix were having love affair and that the family members of the prosecutrix was not ready for marriage of the prosecutrix with him and that they wanted to marry her with some other boy for which prosecutrix was not ready and that so the prosecutrix accompanied him voluntarily to his native village, where they married with each other, but later on under the pressure of father of prosecutrix and other relatives, prosecutrix gave a different version and that the present case was falsely lodged against him by the family members of the prosecutrix. The accused declined to lead evidence in his defence.
26 Arguments have been addressed by learned amicus curie for the accused person as well as learned Additional PP for the State.
27 Learned Additional PP has contended that the prosecutrix has fully supported the case of the prosecution and that she has clearly deposed about the manner in which she was forcibly taken away by the accused and forced to marry him and that she has also deposed about the manner in which accused committed rape upon SC No. 33/13 State Vs. Bimal Page Nos. 9 of 24 10 her. It is further stated that the remaining prosecution witnesses have also corroborated the testimony of the prosecutrix and hence, the prosecution has succeeded in proving its case against the accused beyond reasonable doubt and has accordingly prayed that accused Bimal be convicted for offences u/s.363/366/376 IPC. 28 Learned counsel for accused on the other hand has contended that accused is innocent and has not committed any offence as prosecutrix and accused were having love affair and the family members of the prosecutrix were not ready for marriage of prosecutrix with accused and wanted her to marry some other boy for which prosecutrix was not ready. He further contended that at the time of incident, the prosecutrix was of marriageable age and had thus taken a joint decision with accused to get married to him against the wishes of her parents. It is further contended that prosecutrix had herself accompanied the accused and got married with him and that parents of prosecutrix were also aware of their marriage yet they failed to accept the relationship between the prosecutrix and the accused and incited prosecutrix to depose against the accused. It is thus prayed that accused be acquitted of all charges in the present case and it is prayed accordingly.
29 I have heard the arguments put forward by ld. Addl. PP and learned amicus curie for the accused and have carefully gone through the record of the case. I have also considered the evidence adduced by the prosecution in support of its case. 30 In the present case, the accused is alleged to have kidnapped prosecutrix, a minor aged about 15 years, from the lawful guardianship of her parents without their SC No. 33/13 State Vs. Bimal Page Nos. 10 of 24 11 consent and further alleged to have kidnapped her and taken her to his village at Mohamadpur, UP with intent that she may be compelled to marry him and further forced or seduced her to have illicit intercourse with him. Lastly, it is alleged that accused got married to prosecutrix at Unaopur on 19.12.2012 and thereafter on 25.11.2012 and 26.11.2012 till 02.12.2012 he committed rape upon her without her consent and against her wishes.
31 The first and foremost point for consideration in the present case is the age of the prosecutrix. As per the case of the prosecution, the date of birth of prosecutrix is 05.01.1998 and she was aged about 14 years and 10 months at the time of incident. On the other hand, accused has placed on record an affidavit of his marriage with the prosecutrix wherein her age has been mentioned as 22 years. The photograph of the prosecutrix and accused was affixed on Ex.PW2/DA and was admitted to be correct by PW8 Sh. Kalua Singh, father of the prosecutrix. Considering that there were two contradictory documents of age on record, the prosecution was required to place on record some document with which conclusion regarding the correct age of the prosecutrix could be drawn. However, contrary to the requirement of law it is seen that the IO PW12 SI Bijay Singh did not even verify Ex.PW8/B i.e. the school certificate of the prosecutrix. The testimony of PW13 Sh. Harender Singh, concerned Head Master from the school, where the prosecutrix was studying and from where Ex.PW8/B was procured, shows that no document of age of prosecutrix was submitted at the time of her admission in the school and that the admission form was also filled by the school staff rather than parents of the prosecutrix. Thus a doubt is created as to the correct age of the prosecutrix and also the fact that she was less than 18 years as on the date of SC No. 33/13 State Vs. Bimal Page Nos. 11 of 24 12 incident and benefit for the same has to go to the accused.
32 The next question which arises for consideration is whether prosecutrix was kidnapped by the accused out of lawful keeping of her guardian i.e. her father or if she had accompanied him voluntarily and if so whether consent of prosecutrix would have any consequence in the matter. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the Court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration of the same is required unless there are compelling reasons which necessitate the Court to seek corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime and her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the Court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. I am supported in my view by judgment in case titled as Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. & Anr., AIR 2003 SC 818 and Vishnu Vs. State of Maharashtra, AIR 2006 SC 508. Let us examine the statements / testimony of prosecutrix in the present case to see if it can be relied upon to draw conclusion of guilt of the accused.
SC No. 33/13 State Vs. Bimal Page Nos. 12 of 24 13 33 The prosecutrix is alleged to have been taken away on 15.11.2012 by accused and was recovered on 02.12.2012. On the same day statement of prosecutrix was recorded u/s.161 CrPC wherein she deposed as under : "Mein (prosecutrix) r/o Ranbir Ka Makaan, Gaon Punjab Khod, Delhi, me apne mata - pita ke sath rehti hu ; isi makaan me Bimal naam ka ladka bhi apne bhai - behein ke sath rehta hai ; mere mata - pita ke kheto me jane ke baad Bimal aksar mujhse milta julta wah batchit karta rehta tha ; jo dinak 15.11.2012 ko Bimal mujhe ghar se behla fuslakar apne sath apne gaon Mohammadpur, Uttar Pradesh, me lekar gaya tha ; jo waha pahuchane ke baad Bimal mujhe kai dino tak idhar udhar ghumata raha aur mere sath galatkam bhi kiya jo usne meri marji ke bina kai bar mere sath galatkam kiya ; Bimal ne mere se shadi bhi ki thi ; jo Bimal mujhe wapas Delhi lekar aaya jo aaj dinak 02.12.2012 ko Bimal mujhe kahi le jane ke liye railway station ke bahar sadak par bus stand ke paas khada tha jo samay karib 9:00 AM mere pitaji ki pehchan par hum dono ko apne pakad liya wah hamare se puchtach ki, Bimal Kumar ko apne giraftar kiya aur meri Sanjay Gandhi Hospital Mangol Puri me doctori janch karwai aur hum dono ko Court me pesh kiya, Bimal ko jail bhijwaya aur maine judge ke samne bayan diye ; jo me apne bayan ki tahid karti hua jo Bimal Kumar mujhe behla phuslakar shadi karne ki niyat se lekar gaya tha wah mere SC No. 33/13 State Vs. Bimal Page Nos. 13 of 24 14 sath galatkam kiya jiske khilaf karwahi ki jate."
34 The statement of prosecutrix u/s.164 CrPC Ex.PW1/B was recorded on 02.12.2012, wherein she deposed that she was studying in fifth class and that her family comprised of herself, her mother, father and three sisters and that she knew accused Bimal since four / five months being her neighbour. On 15.11.2012 accused took her to Pul to buy Bathuwa and from there he took her in a bus to his native village at Mohamadpur, UP, and that on 19.11.2012 he got married to her at Unao Court. She further stated that on 25.11.2012 and 26.11.2012 he did galatkam with her. She then stated that when they were returning from a fair, they stopped at Ausam and accused did galatkam with her in a chappar in the fields and that when Bimal was taking her somewhere her father and police saw them at the New Delhi Railway Station and caught them.
35 The prosecutrix appeared to depose before the Court as PW4 and her statement was recorded on 06.08.2013 wherein she deposed as under : "I along with my family is residing in the house of Ranbir as tenant. Accused Bimal, who was correctly identified by the witness through the design of wooden partition in the Court, was also residing as tenant in one of the room of house of Ranbir with his one brother and one sister. My father is agriculturist and both my parents used to go to the fields daily for the purpose of agriculture. When my parents used to leave for the field and younger brothers SC No. 33/13 State Vs. Bimal Page Nos. 14 of 24 15 and sisters used to go to school, accused Bimal used to come at my room and asked me to talk to him and he used to tell me that he would marry me and would take me along with him at his native place.
On 15.11.2012, it was occasion of Bhaiya Dhuj, accused took me along with him to his native village at Village Mohammadpur, Uttar Pradesh. There accused committed galatkam with me many times against my wishes and without my consent.
Court Ques. What do you mean by 'galatkam' ?
Ans.: Usne galatkam mere kapde nikal kar kiya tha. Apne
kapde bhi nakale the. Usne mere sath sharirik (physical)
sambandh banaye.
The accused took me to his maternal uncle, who was an advocate, and who got married the accused with me forcibly. Accused committed said galatkam with me for 10 - 11 days repeatedly. We were caught by the police on 02.12.2012 from the place in U.P. where the maternal uncle of accused was residing. Again said, it was from Old Delhi Railway Station. My father was also with the Police. Accused Bimal was arrested by the Police. I was taken to Sanjay Gandhi Hospital for my medical examination. My statement was recorded by the Police. I was also taken to Court for my statement u/s.164 CrPC and my statement Ex.PW1/B was recorded which bears my signatures at point "A"."
SC No. 33/13 State Vs. Bimal Page Nos. 15 of 24 16 36 During her crossexamination by learned amicus curie the witness made several improvements in her deposition as PW4, over and above her statement u/s.161 CrPC dated 02.12.2012, and her statement u/s.164 CrPC Ex.PW1/B. In her testimony before the Court, she deposed that she knew accused since last about 67 months prior to the incident and that the room of accused was adjacent to her room and that there were 4 rooms on the first floor where she was residing with her family and that she never complained against the conduct of accused to her parents as the accused used to pretend to be very innocent in front of her parents and that her sisters were not aware of the fact that accused used to visit her house in their absence. She denied the suggestion that she was having a love affair with the accused or that she insisted the accused to marry her.
37 During her further crossexamination, the PW4 stated that on 15.11.2012 she left her home at about 2:00 PM for purchasing coconut for the purpose of Bhaiya Dhuj and on the way, accused took her to Kanjhawala in a TSR and from there he had taken her in a bus to Anand Vihar and from there, they took another bus at about 7:00 PM and reached village Mohammad Pur on next day early morning. She then clarified to state that it was not a TSR but a small goods vehicle like TSR and that the driver was known to the accused and that the said vehicle was green from front and had four wheels. She then deposed that when she was going to purchase Coconut, the driver of the Tempo, who was friend of accused, pulled her inside the vehicle and closed her mouth so she could not raise alarm and that the said driver was telephonically told by accused to bring her at Kanjhawala where accused was waiting for her. The prosecutrix could not tell the name of the said driver, however, she stated that she had told the SC No. 33/13 State Vs. Bimal Page Nos. 16 of 24 17 police that the tempo driver had pulled her in the tempo and closed her mouth. She also deposed that the tempo driver had held her mouth with one hand and was driving the tempo with the other and that she had not bitten the tempo driver to free herself and that it took them about 10 - 15 minutes to reach Kanjhawala and that she did not raise alarm at Kanjhawala as she did not know anyone. The prosecutrix then clarified to state that nobody would have listened to her. She further volunteered to state that the said driver had given a bribe of Rs.25,000/ to the police to have his name removed from the case. She denied the suggestion that she did not raise alarm as she had gone willingly with the accused. During her further crossexamination, the prosecutrix deposed that there was a lot of crowd in the bus in which they went from Kanjhawala to Anand Vihar. She admitted that she did not raise alarm or inform the passengers, conductor and driver of the bus that accused was taking her forcibly without her consent. She volunteered to state that it was so as accused had made her sit on one side of the seat. The prosecutrix further deposed that after reaching Anand Vihar, she saw that there were many buses at that place. She admitted that she did not try to run away on the way inside Anand Vihar bus station. She claimed that it was so as accused was holding her. The prosecutrix also deposed that accused had gone to purchase ticket at Anand Vihar and that the ticket counter was at a distance of about 5 6 steps from where she was standing. She admitted that she did not raise any alarm nor did she try to run away at that time. She further admitted that there was a lot of crowd at Anand Vihar Bus Station at that time. She explained that she had not raised alarm nor tried to run away as the accused had already called 2 - 3 of his acquaintances to Anand Vihar Bus Station. The prosecutrix denied the suggestion that no one knowing the accused was present at Anand Vihar Bus Station when they reached there. The prosecutrix admitted that she SC No. 33/13 State Vs. Bimal Page Nos. 17 of 24 18 did not raise any alarm in the bus in which they sat from Anand Vihar. The prosecutrix further deposed that after reaching at Mohammadpur, accused took her to his house where his mother and sister were present and that at Mohammadpur, one friend of accused came to pick up them from the Station on his bicycle and that she sat on the carrier of the cycle while accused sat on the rod between the handle and the seat of the cycle and that the same was driven by friend of the accused. The prosecutrix admitted that she did not try to run away, however, she stated that it was because she was far away from home and for this reason, she did not raise any alarm. 38 During her further crossexamination, the PW4 stated that there were houses adjacent to the house of accused in the village. She admitted that she did not raise alarm in the Mohalla of accused. She also deposed that the mother, father and sister of accused were present at his home and that she had told the mother of accused that accused had kidnapped her on which his mother objected to it and scolded the accused. She stated that at that time the accused had slapped his mother. During her further crossexamination, prosecutrix stated that she was kept in a hut in the fields which was outside the house of accused and that she did not cook food and that the accused used to bring food from outside and that accused bought clothes for her with his Mama and that she had not accompanied him to the market for purchasing the said clothes. The PW4 denied the suggestion that she had accompanied accused to the market and purchased a saree with him or that she had thereafter given her blouse for stitching or that she used to go out with the accused during the period she was staying with him at his village or that she had taken a pink suit with her when she left her home. She denied that accused did not have any maternal uncle, who was advocate, by SC No. 33/13 State Vs. Bimal Page Nos. 18 of 24 19 profession. The PW4 admitted that when she had gone to Court with the accused, she did not inform anyone that accused had brought her forcibly and that she had mentioned her age as 22 years in the documents prepared in the Court and that her photographs were also affixed on the said documents. She also stated that photographs of her marriage with the accused were also taken and that their photograph was taken in a photo studio. The prosecutrix termed it correct that accused was from a different caste. However, she denied the suggestions that her parents were aware of her love affair with the accused or that they were against her marriage with the accused since the accused was from a different caste. She denied that her father and police officials had brought her from the village of accused or that when her father and police officials found her there, at that time also, she did not want to return back to her parental house as she had accepted accused as her husband. The prosecutrix denied that she had gone with the accused of her own free will as they were having an affair or that she was above 18 years of age at the time when she went away with the accused. She denied that accused had not enticed her in any manner or that she had accompanied him of her own free will or that she herself wanted to marry the accused or that she had herself established physical relations with the accused of her own free will after marrying him in the Court.
39 When the three statements of the prosecutrix i.e. her statement u/s.161 CrPC, her statement u/s.164 CrPC Ex.PW1/B and her deposition as PW4 recorded on 06.08.2013, reproduced hereinabove, are considered, then it is seen that prosecutrix has continuously changed her version.
SC No. 33/13 State Vs. Bimal Page Nos. 19 of 24 20 40 Further the statement of prosecutrix also creates a doubt whether there was any enticement or taking away of the prosecutrix by the accused. Though in her statement as PW4 in her examination in chief prosecutrix reiterated that she had been enticed by accused to go with him to his native village on 15.11.2012 where he committed galatkam (rape) upon her many times against her wishes and consent, from the crossexamination of the prosecutrix material facts emerged which create doubt regarding her being enticed or taken away by the accused. In her crossexamination prosecutrix has stated that she knew accused since 6 - 7 months prior to the incident. She also stated that the room in which she and her family was staying as a tenant was adjacent to the room in which accused was staying as tenant and that there were four rooms on the first floor (including the room in which she and her family and accused were residing) and five rooms on the ground floor all of which were occupied by the tenants. The prosecutrix admitted that she never complained against the conduct of accused to her parents. She gave explanation saying that it was so as accused used to be pretend to be very innocent in front of her parents. She subsequently however, admitted that neither her sister nor her mother were aware of the visits of accused. This fact is an indicator that accused could not have visited the room of prosecutrix without her consent.
41 Further in her subsequent crossexamination prosecutrix stated that on 15.11.2012 i.e. the day of incident, she left her house at about 2:00 PM to purchase coconut for Bhaiyaduj and that on her way accused met her and took her to Kanjhawala in TSR and from there he took her in a bus to Anand Vihar from where they took another bus at about 7:00 PM and reached Mohamadpur. She then improved her earlier SC No. 33/13 State Vs. Bimal Page Nos. 20 of 24 21 statements wherein she had stated that she had met accused on her way to market and stated that it was not the accused but a friend of accused, who had taken her in the said vehicle. In her jest to justify her improvement the prosecutrix stated that the tempo driver, who was a friend of accused, was in constant touch with the accused and that he had caught on to her by her hand and was driving the vehicle with the other hand. It is difficult to comprehend how any person could have driven a tempo like vehicle with one hand or could have continued to do so if the prosecutrix had shown any resistance or raised alarm. Admittedly, the said driver had only held the prosecutrix by her hand and prosecutrix could have easily raised alarm if she so desired. Moreso, when the said driver was a rank stranger to the prosecutrix. There is no explanation why in these circumstances, the prosecutrix who was pulled in the tempo against her will, by the friend of the accused, did not make any effort to free herself or to raise alarm while she was being taken to Kanjhawala. Further on the one hand prosecutrix claims that she did not know the name of the tempo driver and on the other, she stated that said tempo driver had given Rs.25,000/ to police to have his name struck off from the case. If the prosecutrix had not revealed identity of the tempo driver to the police then it is difficult to comprehend how she could give his particular to the police for the police to identify him and then for the said tempo driver to bribe the police in the manner stated by the prosecutrix. It is also apparent from the crossexamination of the prosecutrix that no effort was made by her to offer any resistance to the accused or to raise alarm while she traveled with him in bus from Kanjhawala to Anand Vihar and further when they reached Anand Vihar Bus Station from where accused purchased tickets and while traveling with accused from Anand Vihar to his village at Mohammadpur. The explanation given by prosecutrix for not raising alarm at these places / journeys despite availability of public SC No. 33/13 State Vs. Bimal Page Nos. 21 of 24 22 persons is not convincing and creates doubt if she was at all forced by the accused to accompany her. The subsequent crossexamination of prosecutrix makes it further more clear that prosecutrix had accompanied the accused willingly to his native village and got married to him in a Court. Even assuming that prosecutrix could not escape from the clutches of the accused from his house where his parents and sister were present, there is no explanation why during her subsequent stay in a hut, in fields outside the house of the accused, where she was staying separately with the accused, she did not make any effort to free herself. As per the version given by the prosecutrix, accused used to go to bring food and clothes for her during this time and at that time he used to leave her behind in the hut. Despite this prosecutrix made no effort to bid her escape. Rather she accompanied accused to the Court and got marriage documents prepared wherein she gave her age as 22 years and thereafter also had her marriage photographs taken in a photo studio. The entire conduct of the prosecutrix creates a doubt regarding her role as a victim who was forcibly taken away from the guardianship of her parents to be forced to marry the accused and subsequently subjected to rape. It is apparent that there were ample opportunities for the prosecutrix to raise alarm or to escape from the clutches of the accused which she failed to do so. This is all the more material considering that prosecution has failed to establish prosecutrix was less than 18 years of age as on the date of commission of offence. Moreover there is delay of about six days in registration of the case FIR. Admittedly the prosecutrix had gone missing from her house on 15.11.2012 and her parents came to know about it on the same day yet the case FIR was registered only on 21.11.2012 at 9:35 PM. Though PW8 father of prosecutrix states that he was waiting for the brother of prosecutrix to bring back prosecutrix to her house, the delay is still not explained sufficiently and is against the normal course of SC No. 33/13 State Vs. Bimal Page Nos. 22 of 24 23 conduct to be followed by father / parents whose grown up daughter goes missing from the house.
42 In the present case from the facts and circumstances of the case more particularly testimony of prosecutrix, the element of 'taking away' or 'enticement' is found to be lacking. In view of the material on record, it appears that prosecutrix was willing and consenting party and it seems that everything has happened with her sweet will. In these circumstances, the factum of kidnapping of prosecutrix does not stand proved. I am supported in my view by judgment in case titled as Bunty vs. State (G.N.C.T.) of Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011 by the Hon'ble Delhi High Court, wherein it was held that : "8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had travelled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...."
43 It would also be relevant to refer to the case titled as " S. Varadarajan Vs. State of Madras, AIR 1965 SC 942", wherein while distinguishing between " taking"
and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India that : SC No. 33/13 State Vs. Bimal Page Nos. 23 of 24 24 "There is a distinction between " taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian."
44 The nutshell of foregoing discussion is that from the testimony of the prosecutrix as well as other material placed on record, the prosecution has failed to prove that accused had kidnapped prosecutrix on 15.11.2011 out of lawful guardian of her father or that he had kidnapped the prosecutrix with intent to force her or seduce her to have illicit intercourse or that he had compelled prosecutrix to marry him or that after kidnapping and getting married to her, accused had committed rape upon prosecutrix against her wishes and without her consent. Accordingly, I acquit accused Bimal of the charged offences, giving him benefit of doubt for the offences u/s. 363/366/376 IPC.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 16.09.2013) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
SC No. 33/13 State Vs. Bimal Page Nos. 24 of 24
25
FIR No. 254/12
P.S. Kanjhawala
16.09.2013
Present: Ld. Addl. PP for the State.
Accused produced from JC with counsel Ms. Sadhna Bhatia, learned amicus curie.
Further arguments heard.
Put up for judgment at 4:00 PM during the course of the day.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 16.09.2013 At 4:10 PM Present: Ld. Addl. PP for the State.
Accused produced from JC with counsel Ms. Sadhna Bhatia, learned amicus curie.
Vide separate judgment, announced today in the open Court, accused Bimal has been acquitted of the charged offence.
Accused is in custody, be released forthwith, if not wanted in any other case. File be consigned to Record Room.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 16.09.2013 SC No. 33/13 State Vs. Bimal Page Nos. 25 of 24