Delhi District Court
The State vs . on 3 January, 2017
IN THE COURT OF SH. PAWAN KUMAR MATTO:
ADDL. SESSIONS JUDGE01 (WEST):
TIS HAZARI COURTS: DELHI.
SC No.: 213/15 (Old No.)
57333/2016 (New No.)
FIR No.: 704/14
PS : Patel Nagar
U/S : 363/376 of IPC & Sec.6 of POCO Act
The State
(Govt. of NCT of Delhi)
Vs.
Ramesh Rathore
S/o Sh. Roop Chand Rathore
R/o T650/BN15, Gali no.20, Durga Mohalla,
Baljeet Nagar, New Delhi.
...... Accused
Date of Institution : 07.11.2015
Date of arguments : 03.01.2017
Date of judgment : 03.01.2017
JUDGMENT:
1 Brief facts of the case are that, in the case in hand, the FIR has been registered on the statement of the mother of the prosecutrix 'PD' (presumed name of the mother of prosecutrix), wherein, she has alleged that she has two sons & two daughters and the prosecutrix 'S' (presumed name of the prosecutrix) is her third child & she is about 17years of age and on dated 20.09.2014 at about 7.00 pm, she has gone from her house without giving any information and also alleged that accused Ramesh, who lives in her street, also used to make talk with the prosecutrix many times and accused Ramesh has also disappeared and the family's members of accused Ramesh were not giving any FIR No.704/14 PS Patel Nagar State Vs. Ramesh Rathore Page 1 of 13 information & she believed that accused Ramesh has induced & kidnapped away to the prosecutrix & she waited for the prosecutrix, but, she did not return & she has filed such complaint Ex.PW2/A and on the basis of such complaint filed on dated 22.09.2014, FIR u/s 363 of IPC was registered in PS Patel Nagar. On returning of the prosecutrix, her statement U/s 164 of Cr.PC was recorded and the accused was arrested on 06.10.2015 & since then, he is behind barrs.
2 On completion of the investigation, the chargesheet was filed U/s 363/376 IPC and Sec. 6 of POCSO Act. Copy of charge sheet was supplied to the accused and on finding of the primafacie case, the charges U/s 363/366/376 of IPC & Sec.6 of POCSO Act were framed against the accused, to which, the accused pleaded not guilty and claimed trial. Accordingly, the accused was put on trial and the matter was fixed for the evidence of the prosecution.
3 In order to prove its case, prosecution has examined two witnesses today.
4 Prosecutrix 'S' has been examined as PW1. She has deposed that "MAI APNI MARZI SE JODHPUR, DARSHAN KARNE KE LIYE GAI THI. MUJJE KOI ZABARDASTI KARKE NAHI LE KAR GAYA YE. ISKI KOI BHI GALTI NAHI HAI". She has further deposed that "MAI JODHPUR NAAGNESHI MATA KE DARSHAN KE LIYE GAI THI OR MAI VAHA PAR RUKI NAHI THI. HUM RAAT KO TRAIN SE GAYE THE, SUBAH DARSHAN KARNEN KE BAAD, DOPHAR KO DUBARA TRAIN PAKAD KAR, PURANI DELHI RAILWAY STATION PAR WAPIS AA GAYE" and she has also deposed that her mother had telephoned to the accused and she & accused went to police station and she has also deposed that "MERE SATH KOI ZOR ZABARDASTI RAMESH NE NAHI KI THI". Since, this witness has resiled from her previous statement, so, Ld. APP for the State had sought permission to crossexamine this witness. After hearing, this witness was declared FIR No.704/14 PS Patel Nagar State Vs. Ramesh Rathore Page 2 of 13 hostile & the Ld. APP for the State, was allowed to crossexamine this witness. During her crossexamination by the Ld. APP for the State, she has admitted it to be correct that her statement u/s 164 of Cr.PC Ex.PW1/A was recorded by the Ld. Metropolitan Magistrate and she has correctly identified her thumb impression thereon at point A, but she has denied that she had told to the Ld. Metropolitan Magistrate that physical relations were developed between her & accused and further deposed that "MAINE DAR KE MARE BOL DIYA HOGA, BUT HUMARE BEECH AISE KOI BAAT NAHI HAI". She has denied that she had told to the police officials that sexual relations were also developed between her & accused Ramesh in the room of accused. She has also denied that she had shown the room of accused to police. She has also denied that she has been won over by the accused. This witness has also been crossexamined by Ld. Counsel for accused and during her cross examination by Ld. Counsel for accused, she has deposed that she does not know about her age and admitted that she had told her age as 20years at the time of recording of her statement u/s 164 of Cr.PC Ex. PW1/A by Ld. Metropolitan Magistrate. She has also admitted it to be correct that she had undergone a Bone Maturity test and as per report Ex.PW1/D1, her age is more than 20 years. She has also admitted it to be correct that she has never been kidnapped or raped by the accused.
5 Whereas, the complainant, who is the mother of the prosecutrix 'PD' (presumed name of mother of prosecutrix) has been examined as PW2 and she has deposed that she has two sons & two daughters and the prosecutrix 'S' (presumed name of the prosecutrix) is her third child. In the year 2014, accused Ramesh had taken away to the prosecutrix. She has further deposed that she does not know, as to where this accused had taken to the prosecutrix and she had filed a complaint Ex.PW2/A to the police and she has correctly identified her thumb impression at point A thereof. This witness has also been crossexamined by Ld. Counsel for accused and during her crossexamination by Ld. Counsel for accused, she has denied that the age of prosecutrix was about 20 years in the FIR No.704/14 PS Patel Nagar State Vs. Ramesh Rathore Page 3 of 13 month of September, 2014. She has denied that accused Ramesh never kidnapped to the prosecutrix or that she had lodged a false complaint against accused Ramesh or that she has concocted a false story and filed a false complaint after due delibration and after considerable delay. She has deposed that she is an illierate lady & she has admitted that she does not know as to when the prosecutrix was born. She has also admitted it to be correct that she does not know the real age of the prosecutrix and she has denied that she has deposed falsely.
6 I have heard the Ld. Counsels for the parties.
7 After examination of PW1 & PW2, the Ld. APP for the State has submitted that the matter may be adjourned for examination of the remaining prosecution's witnesses, whereas, Ld. Counsel for accused has opposed the same and submitted that since, the prosecutrix & her mother (complainant) have been examined & since the prosecutrix has failed to support the case of the prosecution, so, he has prayed for closing the evidence of the prosecution & also prayed for acquittal of the accused.
8 Since, the prosecutrix has been examined & crossexamined today and the perusal of the record shows that, in the case in hand, FIR was registered on the statement of the mother of the prosecutrix, wherein, she has alleged that prosecutrix was kidnapped away by accused Ramesh and she has filed her complaint on dated 22.09.2014, which is Ex.PW2/A. Since, this complainant had disclosed the age of prosecutrix as 17years at the time of filing this complaint, but, at the time of crossexamination of this complainant, she has admitted that she does not know as to when the prosecutrix was born, whereas, the perusal of record shows that prosecution has placed on record the report of ossification of the prosecutrix, in accordance with which, the prosecutrix had undergone the test of ossification on dated 19.11.2014 for the purpose of determination of her age and as per the FIR No.704/14 PS Patel Nagar State Vs. Ramesh Rathore Page 4 of 13 report of the ossification placed on record by the prosecution, the prosecutrix had disclosed her age as 20years at the time of her test of ossification, whereas, as per report of the doctors, her age is 17years & 6months and at the time of recording of statement of prosecutrix u/s 164 Cr.PC, the prosecutrix had told her age as 20years. Since the prosecutrix, during her examination in the court, has categorically deposed that she has never been kidnapped or raped by accused Ramesh, so, in the given circumstances, the testimonies of PW1 & PW2 are inconsistent & contradictory on the material points and from the testimony of the prosecutrix, it is clear that the testimony of prosecutrix is contradictory to her statement recorded u/s 164 of Cr.PC, which is Ex.PW1/A, the testimony of PW2 & complaint Ex.PW2/A. So, in the considered opinion of this court, it will be futile to adjourn the matter for examination of the remaining witnesses of the prosecution. Accordingly, the evidence of the prosecution is closed by order, as, in the considered opinion of this court, no fruitful purpose would be served to examine the remaining witnesses of the prosecution, who are formal in nature, as the case of the prosecution cannot be resulted in conviction of the accused, even if remaining witnesses of the prosecution are allowed to be examined.
9 Since, nothing incriminating evidence has come on the record against the accused Ramesh Rathore, therefore, the statement of the accused U/S 313 Cr.P.C is dispensed with.
10 Since, Their Lordship of the Hon'ble Supreme Court was pleased to hold in case 'Suraj Mal Vs. State (Delhi Administration) AIR 1979 Supreme Court 1408' was pleased to hold that:
"it is well settled that where witnesses make two inconsistent statements in their evidence either on one stage or at two stages, the testimony of such FIR No.704/14 PS Patel Nagar State Vs. Ramesh Rathore Page 5 of 13 witness become unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witness."
11 Similarly, Their Lordship of the Hon'ble Supreme Court in case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi) and Hari Singh Vs. State (NCT of Delhi) (2012) 8 SCC 21'.
"In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the crossexamination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of FIR No.704/14 PS Patel Nagar State Vs. Ramesh Rathore Page 6 of 13 every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar test to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
12 Their lordship of High Court of Delhi in Rameshwar Giri V. State, 211 (2014) Delhi Law Times, 508, was pleased to observe : "16. As held by the Supreme Court in AIR 1965 SC 942, S. Varadarajan V. State such an act would tantamount to 'taking'. The observations of the Apex Court in this context are as under:
"The offence of 'kidnapping from lawful guardianship' is defined thus in the first paragraph of Section 361 of the Indian Penal Code:
"Whoever taken or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship'
8. It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping.........11. It must, however, be borne in mind that there is a distinction between 'taking : and allowing a minor to accompany FIR No.704/14 PS Patel Nagar State Vs. Ramesh Rathore Page 7 of 13 a guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful quardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.
12. It would, however, be sufficient if the prosecution establishes that through immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to 'taking'."
"17. This version is further fortified by the fact that the victim was admittedly known to the accused as he was residing in the same street since the last 2 years. The fact that the accused was known to the victim is also admitted by both PW6 and PW7 i.e. the mother and father of the victim. PW5 had accompanied the appellant for sightseeing; they did sightseeing for one hour in Delhi; then by a TSR, the appellant took her to the railway station; people were gathered there to purchase tickets. Tickets were purchased by the appellant from the railway station from where he took her to Bihar which would be a more than one day journey. The victim stayed in the village of the appellant 23 days. She was never threatened by the persons living in that house/ 56 ladies were also present. Other persons from the village also came to meet her. The MLC of the victim also shows that there was no injury upon her person. This corroborates the argument of the Learned Counsel for the appellant that the victim was not subjected to any force.
18. This Court thus necessarily draws the conclusion that the victim was a consenting party with the accused. The offence of rape as defined under Section 375 of the IPC (unamended) is not made out as for the purposes of rape to qualify as a minor, the victim should be less than 16 years. As FIR No.704/14 PS Patel Nagar State Vs. Ramesh Rathore Page 8 of 13 noted supra, the victim was aged 15 years & 9 months on the date of the offence i.w. just about three months short of the age of 16. Being in the age of discretion; this Court is of the view that she was conscious of her act in accompanying the accused and it cannot be said to be an act of force. The accused is entitled to an acquittal for the offence under Section 376 of the IPC. He is accordingly acquitted of the said charge.
13 Since, in case in hand, the FIR was registered on the statement of the mother of the prosecutrix i.e. PW2, wherein, she has alleged that she believed that accused Ramesh had induced & kidnapped away to the prosecutrix, who is about 17years of age, but, at the time of her examination in this Court, she has deposed that she does not know as to when the prosecutrix was born and the prosecturix had admitted that she had disclosed her age as 20years at the time of recordng of her statement u/s 164 of Cr.PC Ex.PW1/A and she has admitted during her crossexamination that she has never been kidnapped or raped by accused Ramesh. Thus, the testimony of the prosecutrix is found to be inconsistent to the testimony of PW2 and complaint Ex.PW2/A. 14 So, taking into consideration the material inconsistencies & contradictions in the testimonies of PW1 & PW2, this court is inclined to hold that the testimonies of PW1 & PW2 are inconsistent, suspicious, unreliable & untrustworthy, so, the same do not inspire any confidence, and since, the charges against this accused were framed u/s 363/366/376 of IPC & Sec.6 of POCSO Act, and the prosecutrix has admitted, when examined in this Court, that she has been neither kidnapped nor raped by accused Ramesh. Therefore, I am inclined to hold that the prosecution has failed to prove that accused has committed the offences punishable u/s 363/366/376 of IPC & Sec.6 of POCSO Act beyond reasonable doubt. Accordingly, accused Ramesh Rathore is acquitted of the charges framed against him. The accused Ramesh is ordered to be released on furnishing the bail bond in the sum of Rs.10,000/ with one surety of like amount, as per the provision of Section 437(A) of Cr.P.C, for next six months to ensure his FIR No.704/14 PS Patel Nagar State Vs. Ramesh Rathore Page 9 of 13 presence in the Hon'ble appellate court and on filing of bail bond and surety bond, the file be consigned to the Record Room.
Announced in the open court (PAWAN KUMAR MATTO)
today i.e. on 03.01.2017 Additional Sessions Judge01(West)
Tis Hazari Courts, Delhi
FIR No.704/14 PS Patel Nagar State Vs. Ramesh Rathore Page 10 of 13
FIR No.
704/14
PS Patel
Nagar
State Vs.
Ramesh Rathore
03.01.2017
Present: Ld. APP for the State.
Accused in JC with Ld. Counsel Sh. S. S. Wani.
The matter is fixed for evidence of prosecution.
IO SI Arti present.
Prosecutrix along with Ms Jaishree Priya, Supporting Person from DLSA is present.
Mother of prosecutrix is also present.
Let the prosecutrix be examined at first instance in camera proceedings, in the court room of vulnerable witnesses. Accused is made to sit in the 'accused's room' and the prosecutrix is made to sit in the room, made for the vulnerable witness along with 'supporting person' Ms Jaishree Priya, from DLSA. Ld. APP for the State has put the questions before me and I passed over the questions to the supporting person and the supporting person asked the questions to the prosecutrix.
During her examination in chief, the Ld. APP for the State has sought permission to crossexamine this witness, as she has resiled from her previous statement. This witness is declared 'hostile' and the Ld. APP for the State is also allowed to cross examine this witness. Accordingly, she has been crossexamined by Ld. APP for the State. She has also been crossexamined by Ld. Counsel for accused.
The complainant i.e. the mother of prosecutrix has been examined as PW2 'in camera'. The accused is made to sit behind the curtains, so that he may not come into eye contact with the witness. She has also been crossexamined by the Ld. Counsel for accused.
FIR No.704/14 PS Patel Nagar State Vs. Ramesh Rathore Page 11 of 13After crossexamination of this witness, Ld. APP for the State has submitted that the matter may be adjourned for remaining evidence of the prosecution, whereas, Ld. Counsel for accused has vehemently opposed the submission of Ld. APP for the State and submitted that since, the complainant, who is the mother of the prosecutrix & the prosecutrix have failed to support the case of the prosecution, so, it will be futile to adjourn the matter for remaining evidence of the prosecution and prayed for closing the evidence of the prosecution.
Since, in the case in hand, the FIR was registered on the statement of the mother of the prosecutrix and the testimonies of both the prosecution witnesses are inconsistent & the prosecutrix has failed to support the case of the prosecution against accused, so, in the considered opinion of this court, even if, the remaining witnesses of the prosecution (who are formal in nature) are allowed to be examined, even then, the case of the prosecution cannot be resulted in the conviction of accused Ramesh Rathore.
So, in the considered opinion of this court, it will be futile to adjourn the matter for examination of the remaining witnesses of the prosecution. Accordingly, the evidence of the prosecution is closed by order and as, in the considered opinion of this court, no purpose would be served to examine the remaining witnesses of the prosecution, who are formal in nature.
Since, nothing incriminating evidence has come on the record against accused Ramesh Rathore, therefore, the statement of accused U/S 313 Cr.P.C is dispensed with.
Heard the Ld. Counsels for the parties.
Vide my separate judgment of even date, accused Ramesh Rathore has been acquitted of the charges framed against him. The accused Ramesh Rathore is ordered to be released on furnishing of the bail bond in the sum of Rs.10,000/, with one surety of like amount, for a period of six months, to ensure his FIR No.704/14 PS Patel Nagar State Vs. Ramesh Rathore Page 12 of 13 appearance in the Hon'ble High Court, as per the provisions of Section 437A of Cr.P.C.
At this stage, Ld. Counsel for accused seeks adjournment for 04.01.2017 for furnishing of the bail bond / surety bond u/s 437A Cr.PC.
Accordingly, the matter stands adjourned for 04.01.2017 for furnishing of the bail bond and surety bond u/s 437A Cr.PC.
(Pawan Kumar Matto) Additional Sessions Judge 01(West) 03.01.2017 FIR No.704/14 PS Patel Nagar State Vs. Ramesh Rathore Page 13 of 13