Delhi District Court
State vs Accused Persons on 3 October, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI Unique Case I.D. No.02402R0355762009 SC NO.153/13 Date of Institution :19.03.2010 FIR No.185/09 Date of Argument : 28.09.2013 PS Nand Nagri Date of Order :03.10.2013 U/S 363/366/376/201/34 IPC State Versus Accused Persons 1 Nitin, S/o Babu Lal, R/o C-3/26, Nand Nagri, Delhi 2 Fateh Singh @ Ravi, S/o Babu Lal, R/o C-3/17, Nand Nagri, Delhi (Since expired) JUDGMENT
The facts in brief of the prosecution case are that on 12.06.2009, ___x_____, w/o ___y_____, R/o ________________z____________, Delhi, herein after referred to as the complainant, lodged a report at PS Nand Nagri alleging that her daughter, ___z-1______, herein after referred to as the prosecutrix, had gone to answer the call of nature on 11.06.2009 at about 4.00 A.M. but she did not return. She came to know that Nitin, S/o Sh. Babul Lal, R/o C-3/26 Nand Nagar, herein after referred to as the accused SC No.153/13 State vs. Nitin & Anr. Page 1 of 30 had taken her by enticing. On the basis of her statement, FIR No. 185/2009, under Section 363 IPC at PS Nand Nagri was recorded. The police flashed the message about missing of the prosecutrix. Document regarding age of the prosecutrix was seized. On 17.06.2009, the prosecutrix was recovered and recovery memo was prepared. She was taken to GTB hospital where she was medically examined. Doctor also took her samples and handed over the same to the W/Ct. Anita Bhagat, who had taken her for medical examination. Her hymen was found torn. The IO took the the pullinda containing samples into possession after preparing seizure memo. The prosecutrix was produced before Ld. M.M. on 25.06.2009 and her statement under Section 164 of the Code of Criminal Procedure, herein after referred to as the Code, was recorded. On 02.07.2009, anticipatory bail application for accused Ravi was filed. Directions were issued for conducting of his TIP as the prosecutrix did not implicate him in her statement under Section 164 of the Code. Accused Ravi refused to join the TIP proceedings. Accused Nitin was arrested on 18.07.2009. His arrest memo and personal search memo were prepared. He was interrogated and his disclosure statement was recorded. Accused Nitin was taken to GTB hospital where he was medically examined vide MLC and his samples were taken by the Doctor which were handed SC No.153/13 State vs. Nitin & Anr. Page 2 of 30 over to Ct. Rajiv, who took him to the hospital. It was opined that there was nothing to suggest that he could not perform sexual intercourse. The samples were seized vide seizure memo. Initially, all the samples were deposited in Malkhana and subsequently, these were sent to FSL for testing and FSL result was received. After completion of investigation police filed a charge-sheet against both the accused for their trial for offences punishable under Section 363/366/376/201/34 IPC.
2. Ld. Metropolitan Magistrate after supplying of copies of charge sheet and documents to the accused persons committed this case to the court of sessions and the case was assigned to Ms. Nisha Saxena, Ld. ASJ, Karkardooma Courts, Delhi.
3. Vide order dated 07.04.2010, the court opined that there was prima facie sufficient material on record for framing of charge against both the accused for the offences punishable u/s 363/328/366 IPC and against accused Nitin for the offence punishable u/s 376 IPC. Therefore, charges against both the accused for their trial for the said offences were framed and read over to them in vernacular language. They pleaded not guilty and claimed trial.
SC No.153/13 State vs. Nitin & Anr. Page 3 of 304. The prosecution, in order to prove its case examined ASI Sumitra Devi as PW1 and partly examined the prosecutrix Ms. ____z-1_____ as PW2.
5. During the pendency and at this stage of trial, accused Fateh Singh @ Ravi expired. After receiving his death verification report and postmortem report, the Court ordered on 21..11.2012 that proceedings against accused Fateh Singh @ Ravi stood abated.
6. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
7. The prosecution further examined prosecutrix as PW-2; Jeet Singh Rawat as PW3; Deepak Shastri as PW4; Lady Constable Anita as PW5; Ct. Rajeev as PW6; HC Tilak Raj as PW7; Ct. Alok Kumar as PW8; HC Kailash as PW9; _____x___, the complainant as PW10; Ct. Shiv Dutt as PW11; Retired SI Iqbal Ahmad as PW-12; W/ASI Santosh as PW-13 and Dr. Ankita, Senior Resident, GTB Hospital as PW-14.
8. After closing of prosecution evidence statement SC No.153/13 State vs. Nitin & Anr. Page 4 of 30 of the accused u/s 313 of the Code was recorded. All the material and incriminating evidence was put to him. The accused admitted that he was residing in the locality of the prosecutrix and that he was arrested on 18.07.2009 and his arrest memo and personal search memo were prepared and that he was medically examined at the GTB hospital on the same day and that PW-6 Dr. Rajiv prepared his MLC Ex. P-A and opined that he was capable to perform sexual intercourse and that on 18.07.2009 he was produced before Ld. M.M. and police after taking his two day police remand took him to Haridwar where he led the police to Hotel Shiv Lok near Har Ki Podi, Haridwar from where IO PW-9 obtained documents from the reception and seized vide memo Ex. PW-3/B and that PW-3 Jeet Singh Rawat, Manager of the hotel deposed that he stayed in that hotel on 11.06.2009 or that PW-3 proved copy of record as Ex. PW-3/A and that he had again led the police to Yamuna Bazar Arya Samaj Mandir and on his pointing, pointing out memo Ex. PW-8/A was prepared and that PW-4 Deepak Shastri of that temple deposed in the Court that he went to the temple on 13.06.2009 along with photocopy of religion conversion certificate Ex. PW-4/C and that his marriage with PW-2 was solemnized according to Arya Samaj customs and that he handed over a photocopy of marriage certificate Ex. PW-4/B to the IO and that that document SC No.153/13 State vs. Nitin & Anr. Page 5 of 30 was seized vide memo Ex. PW-4/A and marriage certificate Ex PW-2/DF was earlier issued by the temple and that PW-4 proved affidavit of the prosecutrix as PW-4/D, conversion certificate as Ex. PW-4/E and ID proof as Ex. PW-4/F and his affidavit as Ex. PW-4/G and that ossification report was also placed on record as mark X and that PW-2, the prosecutrix, PW-3 and PW-4, the manager and receptionist of Hotel at Haridwar and PW-10, the complainant correctly identified him. He denied rest of the prosecution evidence and pleaded that he and the prosecutrix were in love since 2007. The parents of the prosecutrix did not agree for their marriage. On 11.06.2009, the prosecutrix asked him to marry her and without informing her parents, she accompanied him to Haridwar. They stayed there for one day. On Har Ki Podi, the photographer took their photographs. On 12.06.2009, they returned to Delhi. They went to Shahi Hospital where the prosecutrix got her bone age determined and in the report Doctor opined that she was 19 years of age. On 13.06.2009, they went to Arya Samaj Mandir and the prosecutrix converted her religion from Muslim to Hindu and also changed her name as _z-2_ and thereafter she married with him with her free will. Several photographs had already been filed on record. Thereafter, they went to the house of the sister Meenakshi. His brother came to know that they were staying at the SC No.153/13 State vs. Nitin & Anr. Page 6 of 30 house of Meenakshi. He came there, took the prosecutrix with him and dropped her at her house. After 5/6 days, he was arrested. The prosecutrix married elsewhere with other boy of Kolkatta. Whatever was done, it was done with the consent of the prosecutrix. He pleaded that he was innocent.
9. I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for accused and perused file.
10. In order to prove its case that accused committed an offence of causing hurt by means of poisons etc., punishable u/s 328 IPC, prosecution has to prove firstly that accused administered either poison or stupefying, intoxicating or unwholesome drug to the prosecutrix; secondly, that drug/intoxicating pills were administered to the prosecutrix with the intention to commit or to facilitate the commission of an offence or knowingly it to be likely that he will thereby cause hurt to the prosecutrix; and thirdly, that after consuming the drug/intoxicating pills, the hurt was caused to her.
11. In order to prove its case against the accused for the offence of rape punishable u/s 376 IPC, prosecution SC No.153/13 State vs. Nitin & Anr. Page 7 of 30 has to prove firstly, that sexual intercourse was committed with the prosecutrix; secondly, that sexual intercourse was committed with her either forcibly against her will and without her consent or on getting her consent by administering intoxicating pills.
12. In order to prove its case that accused committed an offence of kidnapping, abducting or inducing women to compel marriage, etc. punishable u/s 366 IPC, prosecution has to prove firstly that the prosecutrix was either kidnapped or abducted by the accused and secondly, the prosecutrix was abducted and kidnapped with the intention that the prosecutrix may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced to do illicit intercourse.
13. It has been argued on behalf of the Ld. Defence Counsel that prosecution has failed to prove its case against the accused beyond reasonable suspicion and shadow of doubt. The prosecutrix married with the accused with her own will. She was aged about 17 ½ years. Her bone age was got conducted in which she was shown as 19 years of age. She went with the accused of her own will. It has also been argued that there are material contradictions SC No.153/13 State vs. Nitin & Anr. Page 8 of 30 in the testimonies of witnesses and these have created doubt in the truthfulness of the prosecution case. In support of his arguments Ld. Defence Counsel relied on a case Deep Chand @ Diput vs. State 2000 (1) JCC (Delhi) 49 wherein it was observed by the Hon'ble High Court that :
"On consideration of the evidence on record, it is one of those exceptional cases where both the girls Santosh and Asha categorically stated that they had gone voluntarily. There was no promise, persuasion, inducement or allurement of any kind emanating from the appellant. On the contrary both Asha and Santosh were anxious to go for outing with the appellant. Santosh had gone to the extent of stating that in case she was not taken with them, she would commit suicide. In the instant case both these girls had in fact persuaded the accused appellant to take them for outing. The appellant can not be held guilty of enticing or taking away Asha and/or Santosh. In view of the evidence on record, it is difficult to endorse the findings of the learned Additional Sessions Judge, Delhi. Accordingly, the appeal filed by the appellant is allowed and appellant Deep Chand's conviction under Section 363 I.P.C. is set aside and he is acquitted of this charge."
14. Ld. Defence Counsel further relied on a case Rajendera @ Raju Vs. State of Maharashtra 2002 (3) JCC 1995 wherein the Apex Court observed that:
"Therefore, the finding that the appellant adopted deceitful means to abduct PW1 or PW22 cannot be sustained. In order to constitute offence of 'abduction' a person must be carried off illegally by force or deception, that is, 'to compel a person by force or deceitful means to induce to go from one place to another'. In the instant case, neither of these two ingredients are established."SC No.153/13 State vs. Nitin & Anr. Page 9 of 30
15. Ld. Defence Counsel further relied on a case Shyam and another Vs State of Maharashtra, 1995 CRI. L. J. 3974 wherein the Apex Court observed that:
"***She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the so-called "taking", it does not seem that the prosecutrix was truthful in that regard."
***It seems she was a wiling party to go with Shyam the appellant on her own and in that sense there was no 'taking' out of the guardianship of her mother***"
16. Ld. Defence Counsel further relied on a case Narvan @ Naran Vs. State of Rajasthan 2007 (2) JCC 1202 wherein the Apex Court observed that evidence of the prosecutrix, if acceptable, is sufficient to establish charge of rape against the accused but where her evidence is so artificial and full of material contradictions, same cannot be accepted and conviction based thereon cannot be sustained.
17. Ld. Defence Counsel further relied on a case Narender Kumar Vs State (NCT of Delhi) 2012 (5) LRC wherein the Apex Court observed that:
"Where evidence of prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there SC No.153/13 State vs. Nitin & Anr. Page 10 of 30 being no injury on her person even through her version may be otherwise, no reliance can be place upon her evidence.
Prosecutrix was knowing appellant prior to incident - If evidence of prosecutrix is read and considered in totality of circumstances alongwith other evidence on record, in which offence is alleged to have been committed, her depositions does not inspire confidence - Prosecution has not disclosed true genesis of crime - Benefit of doubt extended to appellant - Conviction set aside."
18. Ld. Defence Counsel further relied on a case Naresh Kumar Vs State (NCT of Delhi) 2012 (7) LRC wherein the Delhi High Court observed that where prosecutrix had willfully accompanied with the accused and had stayed with him on her free will and was consenting party. The offences under Section 376 or 363 IPC are not made out.
19. Ld. Defence Counsel further relied on a case Hira Lal Vs. State of Haryana 1994 CRI. L.J. 2471 wherein P&H Court observed that a mere opinion of Doctor in absence of ossification test, that age of prosecutrix was about 17 years was no consequence but she was above 18 years. The fact that she moved with the accused without complaining to anyone proved that she was consenting party.
20. On the other hand, Ld. Additional Public SC No.153/13 State vs. Nitin & Anr. Page 11 of 30 Prosecutor argued that prosecution witnesses have proved the case beyond reasonable suspicion and doubt. Testimonies of prosecution witnesses are reliable and trustworthy and accused is liable to be convicted. She also argued that minor discrepancies may be ignored in view of the principles of law laid down in case of State v. Jai Hind, 2012 VI AD (Delhi) 170 wherein it was held that:
"32. ***In Rameshwar v. State of Rajasthan, AIR 1952 SC 54 where the Court held:
"The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."*** "38. In State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurances to her testimony, SC No.153/13 State vs. Nitin & Anr. Page 12 of 30 short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
21. Let us now analyze the evidence of prosecution in the light of principles of law laid down in above referred cases.
The age of the prosecutrix, PW-2
22. The prosecutrix on this aspect deposed that she had studied up to 6th class in Raja Ravi Verma Sarvodya Kanya Vidhyalaya, Nand Nagri, Delhi. She had seen the original progress report Ex. PW-2/C. On perusal of these documents, I find that Ex. PW-2/C is a Progress Report of prosecutrix. Her date of birth has been mentioned in this document on 13.09.1991
23. PW-10, ___x__ mother of the prosecutrix deposed that prosecutrix was born on 13.09.1991 at her house. She studied up to 6th class. She was missing from her house since 11.06.2009 when she had gone to ease herself at about 4.00 AM. PW-10 had told her age as 50 years in the Court. In cross examination she stated that her SC No.153/13 State vs. Nitin & Anr. Page 13 of 30 age might be 18/19 years at the time of her marriage. Irfan was born after 4/5 years of her marriage. Shamim was born after 3 years since the birth of Irfan. The difference of age between Irfan and ___z-1___ is about 5/6 years. At the time of incident ___z-1___ was 17 years and 8 months. She denied the suggestion that prosecutrix was more that 18 years of age at the time of incident. If age of prosecutrix is determined on the basis of cross examination then, age of Irfan comes to about 26 years, the age of Shamim comes to 22 years and the age of prosecutrix comes to 16 years.
24. In the cross-examination, prosecutrix stated that X-Ray of her hand was taken on 12.06.2009. Mark X is a document issued by Shahi Hospital, Jungpura, Bhogal, Delhi mentioning the bone age of prosecutrix above 18 years. It is well settled law that a fluctuation of 1 or 2 years upward and downward is always possible.
25. PW-4 proved the affidavit of prosecutrix as Ex. PW-4/E. In her affidavit, age of prosecutrix has been mentioned as 18 years. It has been argued by Ld. Defence Counsel that the prosecutrix was major at the time of alleged incident. The affidavit referred to herein above reflects age of prosecutrix as 17 years and 8 months on the date of occurrence.
SC No.153/13 State vs. Nitin & Anr. Page 14 of 3026. It would be appropriate to reproduce relevant provisions of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, which run as under:
"12. Procedure to be followed in determination of the age.- ***(3) In every case concerning a child or juvenile in conflict with law, the age determination enquiry shall be conducted by the court or the board or, as the case may be, the committee by seeking evidence by obtaining-
(a) (i)The matriculation or equivalent certificate, if available; and in the absence thereof;
(ii) The date of birth certificate from the school (other than a play school) first attended and in the absence whereof;
(iii) The birth certificate given by a Corporation of a Municipal Authority or a Panchayat;
(b) And in the absence of either (i), (ii) or (iii) of clause
(a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of juvenile or child. In case exact assessment of age cannot be done the court or the board or as the case may be, the committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year and while passing order in such case shall, after taking into consideration such evidence as may be available or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in absence thereof clause (b) shall be conclusive proof of the age as regard such child or the juvenile in conflict of law."
27. Turning to the case in hand, I find that the only document regarding age of the prosecutrix is Provisional Progress Report, Ex. PW-2/C mentioning the date of birth of the prosecutrix as 13.09.1991. IO PW-12 in his cross SC No.153/13 State vs. Nitin & Anr. Page 15 of 30 examination stated that he did not visit the school to verify the authenticity of the progress report produced by the complainant. He did not record the statement of the Principal of the School from where the progress report of the prosecutrix was issued. He did not get the bone age of the prosecutrix determined during his investigation. He did not take any birth record of the prosecutrix from the MCD. The first document which should be taken into consideration for determining the age of the prosecutrix is matriculation or equivalent certificate and that is not available in the present case. Thereafter, Date of Birth Certificate issued by the School is also not there in the present case. Thirdly, the Birth Certificate issued by the Corporation is also not available in the present case. Therefore, in the absence of these three documents, the age determined by use of X-ray may be looked into. As per admission of the prosecutrix, PW-2, her age was determined in Shahi Hospital, Jungpura, Bhogal, Delhi on 12.06.2009. After taking X-ray of bone age of the prosecutrix, the Doctor came to the opinion that her age was above 18 years.
28. My attention goes to a case Ajmer Singh and another v. State of Haryana, II-1989(1) Crimes 424, wherein it was held by P&H High Court that:
SC No.153/13 State vs. Nitin & Anr. Page 16 of 30"It is not necessary for the accused to substantially prove their plea. Suffice it to say that if the accused succeeds in creating a doubt, they would be entitled to benefit of it."
In view of the reasons and discussion and evidence on record and particularly discussed herein above it is held that the prosecutrix was more than 18 years of age on the date of committing of alleged offences.
Kidnapping/abduction and rape of the prosecutrix
29. PW-2 on this aspect deposed that accused Nitin present in the Court used to reside in her locality. In the first week of June 2009, he came near her house and started saying that he loved her and asked her to come down otherwise he would come upstairs. On 11.06.2009, accused put a handkerchief over her mouth and forcibly put her inside a van. She started feeling headache. He gave her small sedative tablets and made her to eat same forcibly. After taking tablets, she started feeling drowsy. Accused Nitin took her to ISBT. Co-accused Ravi was also in the van when she regained her consciousness, she found herself in Haridwar. Accused took her inside a room and again forcibly made her to eat sedatives. She was confined in a room for 3 day. Accused Nitin during these 3 days committed rape on her. Thereafter, she was brought to the house of their sister Meenakshi situated at Shahdra. Accused Nitin committed galat kaam, i.e. he inserted his SC No.153/13 State vs. Nitin & Anr. Page 17 of 30 penis into her vagina. She was kept there for 2 days and on both the days, accused Nitin committed rape on her. From there the accused took her to a temple and forcibly married with her. The accused put vermilion on the parting of her hair and put mangalsutra around her neck. She was again took to his sister's house where she was again raped. She went to the place of her parents and she narrated the incident to her mother. She was taken to GTB hospital where she was medically examined and she was also produced before Ld. M.M. where she made her statement.
30. In cross-examination, the prosecutrix stated that accused was known to her since the marriage of elder sister. She did not remember in which year marriage of her sister was performed. Accused Nitin used to visit her house frequently. They were not having any visiting terms with the family of accused Nitin. His house is situated in the third lane from her house. She admitted that she used not to wake up early in the morning in the month of June, 2009, i.e. during the period of incident. She explained that she woke up early only on 11.06.2009 and there was residential houses of Mohammedans near her house and that many other persons of the Muslim community in her neihbourhood used to wake up early in the morning to offer Namaj in those days and that during that period they used SC No.153/13 State vs. Nitin & Anr. Page 18 of 30 to sleep on the roof of their house and that she used to wake up at 4.00 AM to pray Namaj and the mosque is about 5 minutes walking distance from her house. She denied the suggestion that there was love affair between her and the accused. However, she admitted that on 11.06.2009, she had opened the door of the stairs after seeing accused Nitin at her door. She did not try to wake up other family members. She explained that she opened the door as she used to consider him as her brother. He took her to ISBT in a van and she admitted that ISBT is a busy place. She did not recollect the duration of time for which she remained present at ISBT. She was taken to Haridwar in van. She did not know the time which was taken by van from Delhi to Haridwar. There was no halt on the way from Delhi to Haridwar. Accused took a hotel at Haridwar. Many persons were present there. She did not raise alarm as accused had given threat to kill her and her family members in case she raised alarm. She denied the suggestions that she accompanied Nitin to Haridwar with her free will or that she visited many places at Haridwar with accused Nitin. After 2 days, accused Nitin left Haridwar and brought her to Shahdra at the residence of his sister Meenakshi. From Haridwar to Shahdra they came by bus and she did not make noise any time as she was under threat. After alighting from the bus accused took her SC No.153/13 State vs. Nitin & Anr. Page 19 of 30 to his sister's house at Shahdra in a auto. She did not tell the auto driver. She explained that she was under threat. She did not see the police while going from Delhi to Haridwar and coming back to Delhi and going to the house of sister of accused at Shahdra. She admitted that on 13.06.2009 she was taken to Arya Samaj Mandir, Yamuna Bazar, Delhi. She denied the suggestion that she solemnized marriage with accused Nitin in that temple. However, she did not dispute taking of 25 photographs, Ex. PW-2/D-1 to Ex. PW-2/D-25. She did not change her name from ___z-1___ to __z-2_. However, she admitted signing on a document Ex. PW-2/D-E which contained her photograph at point A and signature at point B. She admitted that she did not tell either to the police or Ld. MM that accused showed her specimen signatures or that she was under
threat. She did not complain to Panditji in the temple at the time of marriage that she was forced to marry. She explained that because due to threat given by the accused, she did not make any complaint to Panditji. She denied the suggestion that she was fully conscious at the time of her marriage. She did not raise alarm on the way. She explained that as there was threat by the accused and the knife was shown to her. She did not remember from where photographs by putting the signatures on marriage certificate and conversion certificate, Ex. PW-2/DB and Ex.SC No.153/13 State vs. Nitin & Anr. Page 20 of 30
PW-2/DE were taken.
31. After considering the arguments of Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel and on analyzing the prosecution evidence on record, I come to the conclusion that prosecution has failed to prove its case against accused beyond suspicion and shadow of doubt. The reasons which support my conclusion are firstly, that there are material contradictions, inconsistencies in the statement of prosecutrix, for example, with regard to presence of the accused, in her statement Ex. PW-2/B made before Ld. MM, she stated that on 11.06.2009 at 4.00 AM in the morning, she stood after offering prayer (Namaz) and saw from her terrace that accused Nitin was standing on the ground. He was known to her brother and he was climbing the stairs to come on the terrace. She asked him not to stand there and she climbed down and asked him to go from that place. In the Court as PW-2, she stated that in the first week of January, 2009, the accused came to her house and started saying her that he loved her and he asked her to come down otherwise he would come upstairs. Thus, there is material differences between the two statements.SC No.153/13 State vs. Nitin & Anr. Page 21 of 30
Presence of co-accused Fateh Singh @ Ravi and manner of abduction
32. The prosecutrix in her statement Ex. PW-2/B stated before Ld. MM that when she asked the accused to go away from that place, the accused put a cloth on her mouth. His brother Naveen was also present. Both of them put her forcibly in the van and thereafter, she was made to eat sedative tablets. In the Court as PW-2, she stated that on 11.06.2009, accused put a handkerchief over her mouth and put her inside a van. She started feeling headache. She gave her small sedatives tablets and made her to eat forcibly. After taking tablets, she started feeling drowsy. The accused Nitin took her to ISBT. Accused Fateh Singh @ Ravi was also in the Van.
Visit of ISBT and taking of the prosecutrix to Haridwar by bus or by van
33. Prosecutrix in her statement Ex. PW-2/B in this regard deposed that both the accused put her in the van forcibly and gave her sedative tablets and when she regained her conscious, she found herself in Haridwar. In the Court, she stated that after taking tablets, she started feeling drowsiness. Accused Nitin took her to ISBT. Accused Ravi was also present in the Van. When she regained her consciousness, she found herself in Haridwar. Sometimes, SC No.153/13 State vs. Nitin & Anr. Page 22 of 30 she deposed that she was taken to Haridwar by Bus and sometime, she stated that she was taken to Haridwar by Van.
34. The prosecutrix in her statement Ex. PW-2/A before Ld. MM did not mention about use of knife at any place. In the cross examination, the prosecutrix stated that at the time of photographs, she was under threat as knife was in the hand of accused present in the Court, i.e. Nitin as well in the hand of accused Fateh Singh @ Ravi (since expired). She admitted that she did not tell this fact to others.
35. On considering the nature of evidence, inconsistencies and contradictions, I come to the conclusion that the inconsistencies and contradictions found in the testimony of prosecution witnesses, narrated herein above are material contradictions and these contradictions are not liable to be ignored as laid down in case of State v. Jai Hind (Supra) relied upon by the Ld. Additional Public Prosecutor. Conversely, the principles of law laid down in a case Narvan @ Naran Vs. State of Rajasthan (Supra and Narender Kumar Vs State (Supra) support the plea of Ld. Defence Counsel. These inconsistencies and contradictions have created SC No.153/13 State vs. Nitin & Anr. Page 23 of 30 reasonable suspicion and shadow of doubt in the truthfulness of the testimonies of the prosecutrix.
36. Secondly, although, the prosecutrix as PW-2 deposed that the accused after confining her in a room for three days committed rape on her and he also committed sexual intercourse with her forcibly after solemnization of marriage forcibly, yet there is sufficient evidence on record to establish that the prosecutrix was consenting party. The first reason which support my decision in this regard is that the prosecutrix did not raise any alarm at any stage, i.e. either on seeing the accused firstly in the early morning at about 4.00 AM or when she was present at ISBT or when she traveled in a bus from Delhi to Haridwar to and fro and during the stay at Haridwar or during visiting different places at Haridwar or at the temple where alleged forcible marriage had taken place. Non raising of alarm creates doubt in the truthfulness of the case and leads to the conclusion that prosecutrix was a consenting party.
37. The provisions of law laid down in a case Naresh Kumar Vs State (Supra) and Hira Lal Vs. State of Haryana (Supra) relied on by Ld. Defence Counsel further support my decision in this regard.
SC No.153/13 State vs. Nitin & Anr. Page 24 of 3038. The second reason for my decision is that the prosecution examined PW-3, who was working as Manager in Hotel Shiv Lok near Har Pauri, Haridwar where the accused and prosecutrix stayed on 11.06.2009 and 12.06.2009. He proved the photocopy of entry as Ex. PW-3/A and seizure memo of the above said entry as Ex. PW-3/B. In cross examination he stated that the girl did not make any complaint to him. Staff consisting of 2/3 persons was sitting along with him at the time when the accused and the girl reached there. The girl did not raise any alarm and the girl remained happy with the accused. They had gone to Ganga Snan and to attend the Arti in the evening. The girl did not make any complaint at the time of checking out of the hotel. Testimony of PW-3, thus support the case of the accused that the prosecutrix was a consenting party.
39. The third reason of my decision is that PW-6 Purohit working in the Arya Samaj Mandir, Yamuna Bazar, Delhi, 110 006 proved the seizure memo regarding taking into possession photocopy of Religion Conversion Certificate and the marriage certificate as Ex. PW-4/A. He also proved the marriage certificate as Ex. PW-4/B and conversion certificate as Ex. PW-4/C and the certificate of marriage as Ex. PW-2/DF and the conversion certificate as SC No.153/13 State vs. Nitin & Anr. Page 25 of 30 Ex. PW-2/DE, conversion of religion with photocopy of ID Proof as Ex. PW-4/D, Ex. PW-4/E and Ex. PW-4/F and photocopy of affidavit as Ex. PW-4/G. In cross examination, he also admitted that the girl was happy at the time of marriage. He did not observe any conduct of her to presume that she was under threat or pressure. The testimony of PW-4 has thus supported the defence of the accused.
40. The fourth reason of my decision is that the accused, during cross examination of the prosecutrix put so many photographs to the prosecutrix. She admitted those photographs as correct and these were exhibited as Ex. PW-2/D-1 to Ex. PW-2/D-25. A perusal of these photographs does not show any coercion or fear on the face of the prosecutrix. In some of the photographs, she is looking happy and even smiling. The prosecutrix also admitted two more photographs as Ex. PW-2/DA and Ex. PW-2/DB as correct. In the background, the scene of Haridwar is visible. The girl is not looking scared. These photographs further supported the defence of the accused that the prosecutrix was a consenting party.
41. Last reason of my decision is that principles of law laid down in Deep Chand @ Diput vs. State (Supra) and SC No.153/13 State vs. Nitin & Anr. Page 26 of 30 Rajendera @ Raju Vs. State of Maharashtra (Supra) relied by Ld. Defence Counsel further supported the prosecution case on this aspect.
42. Thirdly, it is not in dispute that prosecutrix is a girl professing Muslim religion and accused is a boy professing Hindu religion. The age of the prosecutrix has also been adjudicated herein above as more than 18 years. The accused told his age 25 years in the statement under Section 313 of the Code recorded on 04.09.2013. Both of them residing in the neighborhood. The plea of accused in these circumstances seems to be correct that there was love affair between the parties and both the accused and prosecutrix left together but they could not stay together due to difference of religion.
43. Fourthly, my attention goes to a case reported as Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, wherein it was inter alia held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."
The principles of law laid down in above case are SC No.153/13 State vs. Nitin & Anr. Page 27 of 30 applicable on the facts of present case and therefore, it is held that accused is entitled to get benefit of doubt as in the present case two views, one, leads to his innocence and another leads to his involvement in the crime are possible.
44. Fifthly, the prosecution evidence has failed to achieve the standard of proof of proving its case against the accused as held in a case Ashok Narang v. State, 2012 II AD (Delhi) 481, wherein Delhi High Court has, inter alia, held that testimony of a single witness in a criminal trial is acceptable but the evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, and must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. The offence of rape is a heinous one which carries grave implications for the accused if convicted. Therefore, the degree of proof had to be of a high standard and not a mere possibility of committing the said offence.
45. Lastly, it is one of the basic principles of criminal jurisprudence that let hundreds of criminal may go unpunished but one innocent person should not be punished. This principle is applicable in the present case. It SC No.153/13 State vs. Nitin & Anr. Page 28 of 30 would be just fair and appropriate, if accused is given benefit of doubt as the prosecution has failed to prove its case against him beyond any reasonable suspicion or shadow of doubt.
CONCLUSION
46. Consequent upon above reasons, discussion and evidence on record and particularly discussed here in above, it is held that prosecution could not prove its case beyond any reasonable suspicion and shadow of doubt against the accused Nitin, that he in furtherance of his common intention with accused Fateh Singh @ Ravi (since expired) committed offence of causing hurt by poisonous substance, etc. punishable under Section 328/34 IPC; or offence of kidnapping/abducting or inducing a woman to compel her for marriage, etc. punishable under Sections 363/366/34 IPC or offence of rape on the prosecutrix punishable under Section 376 IPC. Resultantly, accused is acquitted for the offences punishable under Sections 328/34 IPC; 363/366/34 IPC and 376 IPC.
47. However, in view of provisions of Section 437 A of the Code accused is directed to furnish within a week bail bond/surety bond in the sum of Rs.20,000/- with one SC No.153/13 State vs. Nitin & Anr. Page 29 of 30 surety of like amount for the period of six months.
48. After furnishing of surety bonds, file be consigned to Record Room.
Announced in the Open Court Dated: 03.10.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.153/13 State vs. Nitin & Anr. Page 30 of 30