Delhi District Court
State vs . Arvind Kumar on 24 December, 2014
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No.09/12)
Unique ID case No. 02404R0108922011
State Vs. Arvind Kumar
FIR No. : 54/11
U/s : u/s. 363/365/376(2)(F)/366A IPC
P.S. : S.P. Badli
State Vs. Arvind Kumar
S/o Late Sh. Ram Kishore,
R/o Village Saidullapur,
Post and PS Safdarganj,
District Bara Banki, UP.
Date of institution of case - 23.04.2011
Date on which, judgment has been reserved 23.12.2014
Date of pronouncement of judgment - 24.12.2014
JUDGMENT :
1 The present case pertains to a differently abled child with SC No. 09/12 State Vs. Arvind Kumar Page Nos. 1 of 34 2 challenged mental faculties. As per the case of the prosecution, the said child N went missing from her house on 16.02.2011. The matter was reported to the police by her father Bikal on 17.02.2011 vide DD No.22A i.e. Ex.PW8/A. A case u/s. 363 IPC was registered on the basis of DD No.22 A and investigations thereof were marked to SI Alok Bajpai. During the course of investigations, IO made efforts to search for the victim child. On 22.02.2011 on receipt of secret information, IO conducted raid at native place of accused Arvind Kumar, with the help of local police of PS Safdargunj, District Bara Banki, UP, and recovered the victim child N from there. The accused Arvind Kumar was also arrested from his residence. Both the victim as well as accused were brought to Delhi and were got medically examined at BSA Hospital and the samples collected from them by the concerned doctors were seized by the IO.
2 On 24.02.2011 the victim N was produced before learned MM for her statement u/s.164 CrPC, however, the learned MM declined to record the statement of victim child while observing that the victim N was unable to tell anything as she was mentally weak. After completing the investigations, charge sheet was prepared and was filed in the Court of learned MM through SHO concerned.
3 Upon committal of this case to the court of Sessions, charges for the offence under Section 363/365/366A/376 (2)(f) IPC was framed against the accused. However, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence. SC No. 09/12 State Vs. Arvind Kumar Page Nos. 2 of 34 3 4 In order to prove its case prosecution has examined 16 witnesses.
Public witnesses 5 The PW1, Reshma Parveen, is the aunt (mausi) of the victim child. She is also chachi (paternal aunt) of the victim as she is married to younger brother of the father of the victim. She deposed that the victim child N was her niece (daughter of elder sister of PW1) and that her family (family of PW1) and the family of her sister Naveeza Begum were residing together with their children. She then deposed that on 16.02.2011 at noon time, the victim child was playing outside, in front of their house, and that when she (PW1) along with her sister went out of their house, her niece (victim N) was not found there. She further deposed that on 17.02.2011, she (PW1), her husband and her brotherinlaw Bikal Khan went to PS S.P. Badli and lodged a report regarding missing of the victim.
6 The PW1 further deposed that on 21.02.2011, IO SI Alok Bajpai informed them that he had got information regarding the victim pursuant to which they all went with him and his staff to District Barabanki, U.P. where they met incharge of PS Safdarjang. She further deposed that SI Alok Bajpai narrated all the facts to said Incharge and thereafter Incharge of PS Safdarjang and one more Police official accompanied them to Village Saidullapur, where they found the victim, playing outside the house of SC No. 09/12 State Vs. Arvind Kumar Page Nos. 3 of 34 4 accused Arvind Kumar. The PW1 further deposed that the victim told her (PW1) that accused had taken her after muffling her mouth. The PW1 then deposed about the arrest of the accused and proved his arrest and personal search memos as Ex.PW1/A and Ex.PW1/B respectively. She also proved the recovery memo of victim child as Ex.PW1/C. The PW1 then deposed about bringing the victim child back to Delhi and getting her medically examined at BSA Hospital. She proved the seizure memo vide which samples taken from the victim were seized by the IO as Ex.PW1/D. 7 During her crossexamination by learned amicus curie, the PW1 deposed that they had handed over the photograph of victim to the Police officials on 17.02.2011. She also deposed that the place from where the victim was recovered, was a thickly populated area and that there were several residential houses in its vicinity. The PW1 denied that they had mistaken the accused Arvind Kumar to be the kidnapper of victim N. 8 The PW2, Sh. Bikal, is the father of the victim child. He deposed that he had two daughters and three sons and that on 16.02.2011 at about 4:00 PM, his eldest daughter (victim), aged about 11 years, who was mentally weak, was playing in a ground in front of State Bank of Bikaner and Jaipur, near his house, and that when he went to call his daughter, she was not found present there and that he could not trace her out despite efforts.
9 He further deposed that on the next day i.e. 17.02.2011, he went SC No. 09/12 State Vs. Arvind Kumar Page Nos. 4 of 34 5 to PS and lodged a report regarding missing of his daughter and proved the said report as Ex.PW2/A. He also deposed about handing over the photograph of his daughter to the IO to enable him to search for her. 10 The PW2 further deposed that on 21.02.2011, SI Alok Bajpai informed him (PW2) telephonically that his daughter (daughter of PW2) was confined at Village Saidullapur and that thereafter PW2, his brother Rashmuddin and his wife Reshma went to P.S. S.P. Badli and from there they all went along with SI Alok Bajpai and one Constable to P.S. Safdarganj from where one Sub Inspector and Constable were joined in investigations and that they all reached at Saidullapur and there PW2 saw his daughter (victim) playing in the ground with other children. The PW2 further deposed that on seeing him, his daughter N came to him and hugged him tightly (Mujhse Aa Kar Chipat Gai). The PW2 further deposed about apprehension of accused Arvind Kumar and proved his arrest and personal search memos as Ex.PW1/A and Ex.PW1/B respectively. He also proved the recovery memo of victim child as Ex.PW1/C. The PW2 then deposed about bringing the victim child back to Delhi and getting her medically examined at BSA Hospital. He proved the seizure memo vide which samples taken from the accused were seized by the IO as Ex.PW2/B. The PW2 also identified the clothes which victim N was wearing when she went missing from her house i.e. one underwear and pair of blue denim jeans as Ex.P1 (colly) and stated that they were the same clothes which had been seized by the doctor at the time of medical examination of the victim child N. SC No. 09/12 State Vs. Arvind Kumar Page Nos. 5 of 34 6 11 The PW3, Rashmuddin, is the uncle (chacha) of the victim child. He is husband of PW1 Reshma Parveen and brother of PW2 Bikal. He deposed that on 16.02.2011 when he returned back from work at about 7:00 PM, he (PW3) came to know that the victim N was missing from the house and that when they were unable to trace out the victim, they went to PS S.P Badli and filed complaint on 17.02.2011. He further deposed about going to village Saidullapur, District Barabanki, and about apprehension of accused Arvind Kumar and proved his arrest and personal search memos as Ex.PW1/A and Ex.PW1/B respectively. He also proved the recovery memo of victim child as Ex.PW1/C. He also deposed about the medical examination of the victim.
12 The PW16, Sh. Raj Kumar Verma, is the pradhan of the village Saidullapur. He deposed that he was an agriculturist by profession and was residing in village Saidullapur with his family and that he was also the Pradhan of the said village and had been its pradhan in the year 2011. The PW16 further deposed that accused Arvind was a resident of their village and that accused had come to Delhi for doing labour work in the area of Badli and that later on he (PW16) came to know that accused Arvind had brought one minor girl to the village, whom accused claimed was the daughter of his friend and that accused kept the said girl for four five days in the village after which police from Delhi came to their village. The PW16 further deposed that the mental condition of the girl was not proper and that when he (PW16) saw her, she was unable to speak properly. He further deposed that he (PW16) had been called by the police in his capacity as the SC No. 09/12 State Vs. Arvind Kumar Page Nos. 6 of 34 7 pradhan of the village and that the father of the child was also present to identify his daughter at that time. The PW16 further deposed that the accused was arrested in his presence vide arrest memo Ex.PW1/A and that the personal search of accused was also conducted vide memo Ex.PW1/B and that thereafter the girl was also taken into possession by police. 13 During the crossexamination by learned amicus curie, the PW16 deposed that he could not tell as to what was the approximate area in which their village was situated and that there were approximately 185 houses in village Saidullapur. The PW16 disclosed the names neighbourers of accused Arvind as Tribhuvan and Ram Sajeevan and stated that the width of the street between the house of accused and that of Ram Sajivan was about 4 feet. The PW16 termed it correct that when the victim child was recovered from their village, she was playing in the street and that he (PW16) had seen the victim child for the first time when Delhi police reached the village. He also stated that he had come to know, after arrival of the Delhi police, that Arvind had brought his friend's daughter to his residence. He further termed it correct that since he was a pradhan of the village, any wrong act committing by covillager was within his knowledge and that none of the covillagers of accused had made complaint about accused Arvind that he had brought a girl from Delhi and that when he (PW16) reached the street from where the girl had been recovered, the Delhi Police and parents of the victim child had already reached there about two three minutes ago. 14 During further crossexamination the PW16 deposed that the co SC No. 09/12 State Vs. Arvind Kumar Page Nos. 7 of 34 8 villagers had given him information that the police was about to arrive in their village and that on arrival of Delhi police, the police officials briefed him about the reason for their visit to their village (village of accused). He also stated that he (PW16) had been informed by covillagers / police officials that accused Arvind had brought the victim child, two / three hours prior to the time when Delhi Police reached their village.
15 During his further crossexamination, PW16 termed it correct that his village was different from village of the accused. He volunteered to state that Majra was the same. A specific Court question was asked from the witness about the distance between his village and the village of accused and in response to the said question, the witness replied that there was a distance of about 800 to 900 metres.
Doctor witnesses 16 The PW6, Dr. Rashmi Khatri, was deputed on behalf of Dr. Richa, who had conducted gynecological examination of the victim vide MLC Ex.PW6/A and deposed regarding the same. The PW6 also deposed that as per observations made by Dr. Richa on MLC of the patient, the hymen of the patient was found ruptured though there was no injury mark found present on the perenial region of the patient. The PW6 also deposed that further opinion had been sought from Dr.Richa, by the police officials, regarding the sexual assault on the patient for which Dr. Richa had asked for sample report / forensic report and that as per MLC the sample / forensic SC No. 09/12 State Vs. Arvind Kumar Page Nos. 8 of 34 9 report was not produced before Dr. Richa for further opinion. 17 During the crossexamination by learned amicus curie, the PW6 was asked whether playing, horse riding, etc. could result in rupture of hymen. The witness replied by stating that it happened only in exceptional cases and not generally. The witness was also questioned whether on examination of a tender aged girl, the hymen would not admit tip of the finger, the witness replied by stating that in tender age girl of 11 years, a tip of finger could be admitted even with intact hymen. The PW6 denied that Dr. Richa had made a wrong observation about the opening of the vagina of the patient. She also denied that in the present case the hymen of the patient had been ruptured while playing.
18 The PW9, Dr. N.K. Singh, was deputed on behalf of Dr. Shadab, who had conducted general medical examination of the accused vide MLC Ex.PW9/A, under supervision of PW9, and deposed regarding the same. 19 The PW10, Dr. Vijay Dhankar, was deputed on behalf of Dr. J.V. Kiran, who had given opinion regarding the potency of accused Arvind vide MLC Ex.PW9/A and deposed regarding the same. He further deposed that after examining the patient, Dr. J.V. Kiran had opined that 'there was nothing to suggest that the patient (accused) is not capable of performing sexual intercourse'.
20 The PW11, Dr. Paramjeet Singh, was deputed on behalf of Dr. SC No. 09/12 State Vs. Arvind Kumar Page Nos. 9 of 34 10 Deepak Kumar, Vice Chairman - Associate Professor and HOD Psychiatrist, Dr. U.K. Sinha, Member - Additional Professor of Clinical Psychology, Dr. Rajesh Kumar - Member - Associate Professor of Psychiatrist and Dr. Suman Khushwaha, Member - Associate Professor of Neurology, all members of the Medical Board which had examined the victim child and prepared report Ex.PW11/A and proved the signatures of each of the doctors of the medical board thereupon. He deposed that he had also interacted with the patient (victim) while she was admitted in IHBAS for her assessment and was well conversant with her history and assessment based on which report Ex.PW11/A was given. He further deposed that since the patient was suffering from severe mental retardation with seizur disorder, she could not relate experiences or remember facts pertaining to her experiences including traumatic experiences and that as per the opinion of the medical board, she was not a competent witness to depose before the Court. Police witnesses 21 The PW15, SI Alok Bajpai is the main investigating officer in the present case and he deposed regarding the investigations carried out by him and the documents prepared by him during the course of investigations. He deposed that on 17.02.2011, investigation of the present case was entrusted to him after registration of FIR Ex.PW2/A and that during investigation, he (PW15) tried to search for the accused as well as the victim child in the nearby area but in vain and that thereafter he got flashed the wireless message and gave information to missing person squad, Doordarshan and SC No. 09/12 State Vs. Arvind Kumar Page Nos. 10 of 34 11 newspaper etc. He then deposed that on 21.02.2011, he (PW15) received an information from a secret informer that the kidnapped girl may be at Barabanki and that he informed the parents of the victim child and that on the evening of the same day, he and one constable and father, uncle (chacha) and aunt (chachi) of victim proceeded for Barabanki, and that on 22.02.2011, they reached to the concerned police station i.e. PS Safdarganj where PW15 made his arrival entry vide DD No.20 i.e. Ex.PW13/A and that thereafter they proceeded to Village Saidullapur, Majra Akbarpur along with the SO and staff of that police station and that after reaching village Saidullapur, he (PW15) called Sh. Raj Kumar Verma, pradhan of the village. He further deposed that Sh. Raj Kumar Verma told him that he had come to know from the covillagers, on the same day, that accused Arvind had brought one mentally unfit girl child about three / four days ago to the village. 22 The PW15 further deposed that Sh. Raj Kumar Verma also pointed out at the house of accused Arvind and that when they reached near the house of accused, they found one girl playing amongst the other children, outside the house of accused Arvind and that the said girl came towards Bikal, her father, and hugged him.
23 A specific court question was asked from the witness, whether the victim recognize her family members easily or not. In response to the question, the PW15 replied in affirmative and further stated that the victim even recognized him (PW15) when she saw him after one year. Another Court question was asked from the witness as to whether the victim had told SC No. 09/12 State Vs. Arvind Kumar Page Nos. 11 of 34 12 anything about the incident to her family members when she met them. The witness responded by stating that the victim made certain sounds and gestures which her chachi (paternal aunt) could understand and interpret and it was she (chachi of victim) who told him whatever the victim child had conveyed to her.
24 The PW15 further deposed that accused Arvind Kumar was apprehended, on the identification of Village Pardhan Raj Kumar, and interrogated and thereafter he was arrested vide his arrest memo Ex.PW1/A and that he was personally searched vide personal search memo Ex.PW1/B and that he also recorded the disclosure statement of accused vide Ex.PW15/A. The PW15 further deposed that the victim child N was also recovered vide recovery memo Ex.PW1/C and that from that place, he (PW15) took the victim child, and her relatives as well as accused and his own staff to the local PS where he made arrival entry at PS Safadarganj, Barabanki, and thereafter they all proceeded for Delhi and arrived at Delhi on 23.02.2011. The PW15 then deposed that he took the victim and the accused to BSA Hospital for the medical examination and that he also called W/Ct. Urmila from PS S.P. Badli and that in the hospital, the victim child was got medically examined by W/Ct. Urmila vide MLC Ex.PW6/A and that accused was also got medically examined vide MLC Ex.PW9/A and that after medical examination of victim child as well as accused, the concerned doctors had handed over their respective exhibits which were taken into possession by him (PW15) vide seizure memos Ex.PW1/D (of victim child) and Ex.PW2/B (of accused) respectively. The PW15 further deposed that SC No. 09/12 State Vs. Arvind Kumar Page Nos. 12 of 34 13 from the hospital itself, he produced the accused as well as the victim child before the Duty MM from where the accused was remanded to one day JC and that the custody of victim child was given to her parents and that he (PW15) also moved an application Ex.PW15/B for recording of statement of victim u/s.164 CrPC but the learned Magistrate observed that the victim was 'an unsound mind baby', and hence, her statement could not be recorded and disposed off the application filed by the IO. The PW15 further deposed that the accused was sent to Tihar Jail and that he (PW15) along with the victim child and her parents and staff came to PS where he recorded statement of concerned witnesses and that exhibits of the case were sent to FSL and that thereafter further investigation was conducted by SI Sandeep Kumar.
25 During the crossexamination by learned amicus curie for accused, the PW15 admitted that from 17.02.2012 till 20.02.2012, he was not having suspicion over anyone for having kidnapped the victim child and that he did not find any witness, at the spot from where the victim child had been kidnapped, who had seen accused taking away the victim child. The PW15 then deposed that the village from where the victim child had been recovered, was having about 50 to 100 kachi jhuggies. He termed it correct that there were other jhuggies neighbouring and in front of the jhuggi from where the victim child was recovered and that when he (PW15) reached that place the victim child was playing with other children in between the cluster of jhuggies and that the jhuggi of the accused was also in the said cluster of said jhuggies. He further deposed that he had not visited jhuggi of Pardhan SC No. 09/12 State Vs. Arvind Kumar Page Nos. 13 of 34 14 Raj Kumar Verma and that he could not state about the distance between the jhuggi of Pradhan and the jhuggi of the accused and that he had made inquiry from several persons in the village, who told him (PW15) that accused Arvind had brought the victim child with him (accused) and that he (PW15) did not note the names of said persons and also did not record their statements. He volunteered to state that the brother and bhabhi of accused had also told him (PW15) that accused had brought the victim child with him 4 / 5 days ago claiming that she was daughter of his friend. The PW15 deposed that he had asked brother and bhabhi of accused to join investigations but they did not agree for the same and that he had mentioned this fact in the case diary.
26 At this stage, the witness was asked to refresh his memory from the case diary, however, he stated that did not want to see the case diary to refresh himself whether or not he had mentioned this fact in it. 27 During his further crossexamination, PW15 deposed that he could not tell without refreshing his memory from the police file whether or not he had mentioned the name of the brother and bhabhi of the accused and the neighbourers in the case diary.
28 At this stage, the witness sought permission to go through the police file and after refreshing his memory, he (PW15) stated that neither the names nor the fact that brother, bhabhi and neighbours of the accused, had given information about accused bringing the victim child to the village, SC No. 09/12 State Vs. Arvind Kumar Page Nos. 14 of 34 15 had been mentioned in the case diary. He, however, stated that the information of arrest of accused was given to Dharmender, brother of the accused, and at that time he (brother of accused) had told the witness that accused had brought the victim child with him 4 / 5 days ago. 29 During further crossexamination by learned amicus curie, the PW15 deposed that he did not take help of any specialized support person like an interpretor, etc. to find out from the victim child as to what had happened with her. He volunteered to state that the victim child used to interact with her chachi, who was also her mausi, even more than her own mother and whatever was told by said chachi Reshma Parveen, after interacting with the victim child, was recorded by him in the statement of Smt. Reshma Parveen u/s.161 CrPC.
30 The PW15 denied that they had mistaken accused Arvind as an offender in the present case as the girl was playing in open area between the cluster of jhuggies in which jhuggi of accused was also located and that they had planted Sh. Raj Kumar Verma as a witness in the case. 31 The PW12, HC Yogender Singh, is a police official, who was posted at PS Safdarganj, District Barabanki, UP, on 22.02.2011 and had joined the investigation of the case with Delhi Police on that day. He deposed about accompanying the police officials of Delhi Police and family members of victim to village Saidullapur for recovery of the victim child and about apprehension of accused from the said village. SC No. 09/12 State Vs. Arvind Kumar Page Nos. 15 of 34 16 32 During the crossexamination by learned amicus curie, the PW12 termed it correct that there were other residential houses adjacent to the house of accused. He further deposed that the girl (victim child) was playing at a distance of 25 mt. from the house of accused Arvind. 33 The PW13, SI Nirbhay Kumar Singh, was posted as Incharge of PS Safdarganj, District Barabanki, UP. He deposed on the lines of PW12 regarding the recovery of the victim child and arrest of the accused from village Saidullapur. He proved the copy of GD No. 20, vide which he and HC Yogender Singh had gone with the officials of Delhi Police and the relatives of victim to Village Saidullapur, as Ex.PW13/A. He further proved the recovery memo of the victim child as Ex.PW1/C and arrest and personal search memos of the accused as Ex. PW1/A and Ex. PW1/B respectively. He also proved the arrival entry i.e. GD No.26, made by him at PS Safdarganj on return back to PS with the officials of Delhi Police, family of the victim, victim child and the accused, as Ex. PW13/B. 34 During the crossexamination by learned amicus curie, the PW13 denied that he had never joined the investigation of the present case or that the diary entries were manipulated later on. He also denied that merely because the victim child was playing in front of his house, the accused Arvind was mistaken as an accused in the present case. 35 The PW5, W/Ct. Urmila, got conducted the medical examination SC No. 09/12 State Vs. Arvind Kumar Page Nos. 16 of 34 17 of the victim child at BSA Hospital and deposed regarding the same. She proved the seizure memo, vide which the samples taken from the victim child by the concerned doctor were seized by the IO, as Ex.PW1/D. She also deposed about production of victim child before the learned duty MM from where the custody of the victim was handed over to her mausi Reshma Parveen.
36 The PW14, SI Sandeep Kumar, is the part investigating officer in the present case. He deposed that on 18.3.2011 further investigation of the case were entrusted to him and that during the course of said investigations, he got sent the exhibits of the case to FSL Rohini through Ct. Narender Kumar. He further deposed about preparation of chargesheet and about filing the same in the Court. He further deposed that he had also obtained the expert opinion from Dr. Richa, SR Gynae, after receiving the FSL result, vide his application i.e. Ex.PW14/A and that Dr. Richa had given her opinion on the back side of the application i.e. Ex.PW14/B wherein she had opined that "possibility of sexual intercourse cannot be ruled out as on clinical examination the hymen was found ruptured". He further deposed that as per the directions of the court, the victim child was also got examined by the medical board at IHBAS for assessment of her mental capacity. 37 During the crossexamination by learned amicus curie for accused, the PW14 deposed that during the period the investigations of the case remained with him, he did not find any witness who had seen accused taking the victim child with him from Delhi to UP.
SC No. 09/12 State Vs. Arvind Kumar Page Nos. 17 of 34 18 38 The PW4, Ct. Narender Kumar, had deposited the exhibits of the case to FSL Rohini and deposed regarding the same. 39 The PW8, HC Krishan Pal, was posted as Duty Officer at PS SP Badli at the relevant time. He deposed that on 17.02.2011 at about 11:30 AM, complainant Bikal came to PS and lodged a missing report of his daughter vide DD No.22A. He proved the true copy of the DD No.22A as Ex.PW8/A. He further deposed about registration of FIR of the present case and proved the computerized copy of FIR as Ex.PW2/A. Formal witnesses 40 The PW7, Sh. Mukesh Kumar, learned ACMM, deposed that on 24.02.2011 an application for recording the statement of the prosecutrix was put up before him and that the prosecutrix was produced before him by IO SI Alok Bajpai. He then deposed that he tried to know about the parentage and age of the victim but she was not able to speak anything and was not able to tell even names of her mother and father. He further deposed that it was apprised to him by the IO and mother of the victim that the victim was not in her sound state of mind and was an unsound mind child and that he (PW7) disposed of the application u/s. 164 CrPC filed by the IO with the observations that the victim was not in a position to give her statement u/s. 164 CrPC.
SC No. 09/12 State Vs. Arvind Kumar Page Nos. 18 of 34 19 41 In the present case the victim child N had not been cited as one of the witnesses by the prosecution. The IO in this regard relied upon the observations made by learned MM that PW7 Sh. Mukesh Kumar, who had declined to record the statement of the victim child u/s. 164 CrPC while observing that the victim was not in a position to give her statement u/s. 164 CrPC being a child of unsound mind. However, the IO was directed to get the victim examined at IHBAS to get an expert opinion regarding the fitness of the victim child to depose before the Court. Accordingly, the victim was got examined by the Medical Board at IHBAS and the report of the Medical Board has been placed on the record and has been proved by PW11 Dr. Paramjeet as Ex.PW11/A. However, when the main IO i.e. SI Alok Bajpai was being examined before the Court as PW15, it was brought out that the victim not only recognized her family members easily but even recognized PW15 (IO SI Alok Bajpai) when she saw him after one year. It was also brought out that the victim had told about the incident, to her family members, when she met them through certain sounds and gestures which her chachi (paternal aunt) could understand and interpret and it was she (chachi of victim) who told him whatever the victim child had conveyed to her.
42 In view of these facts, which were brought during examination of the IO, it was deemed appropriate to exercise powers u/s. 311 CrPC r/w Section 164 of the Indian Evidence Act and to make efforts to examine the victim child in the court to ascertain whether she was a competent witness to depose in the Court regarding the incident. The victim as well as her chachi / SC No. 09/12 State Vs. Arvind Kumar Page Nos. 19 of 34 20 support person Reshma Parveen were summoned for 03.05.2014. Simultaneously date of 05.04.2014 and 26.04.2014 were fixed for pre testimony visits of the victim, to be carried out under supervision of Welfare Officer from the concerned Special Juvenile Police Unit. On 03.05.2014, it was informed that the father of the victim child had expired and due to this reason, she could neither appear for her pretestimony visits nor was present on 03.05.2014. The matter was then listed for appearance of victim child and her chachi / support person Reshma Parveen for 31.05.2014. The victim was called for her pretestimony visits for 17.04.2014 and 24.05.2014 under supervision of the Welfare Officer from SJPU. After interacting with the victim child, it was deemed appropriate to examine her as a witness in the case. The video recording of the proceedings wherein the statement of child witness was recorded was also got done in terms of Section 119 of the Indian Evidence Act.
43 The statement of victim child was recorded with the help of Smt. Reshma Parveen, her mausi / chachi and hence, Smt. Reshma Parveen was administered oath that she would truly and correctly translate the words and gestures made by the victim and that she would not add or delete anything therefrom.
Following preliminary questions were asked from the victim, with the help of support person, to ascertain her capacity and capability to depose as a witness in the Court : SC No. 09/12 State Vs. Arvind Kumar Page Nos. 20 of 34 21 "Ques. Aap Ka Naam Kya Hai ?
Ans.. Nisha.
Q. Aap ke papa ka kya naam hai ?
Ans. Vikal Khan.
Q. Aapki mummy ka kya naam hai ?
Ans. Ammi.
Q. Apke papa kaha hai ?
Ans. The witness made gestures which has been
interpreted by Smt. Reshma Parveen as 'papa
khatam ho gaye' (the father of the child witness had passed away during the pendency of the trial).
Q. Aap ko kya khana acha lagata hai ?
Ans. The witness made gestures which was interpreted by Smt. Reshma Parveen as 'sab achha lagta hai'.
Q. Aapki saheliya hai ?
Ans. Nahi.
Q. Sach bolana acha hai ya juth bolana ?
Ans. The witness made a gesture by nodding
her head up and down to 'Sach bolana' and from side to side in response to 'juth bolna'."
44 Thereafter the following statement of the witness was recorded with the help of support person. This portion of the statement of the witness SC No. 09/12 State Vs. Arvind Kumar Page Nos. 21 of 34 22 is being reproduced hereinunder in order to appreciate the manner in which the victim communicated the incident before the Court : "Q. Beta apko kaun le gaya tha.
Ans. The witness made gestures of closing of eyes and covering her face with dupatta, which was interpreted by Smt. Reshma Parveen, who stated that a person had closed the eyes of the victim and covered her face with dupatta.
Q. Woh jo apko le gaya tha aadmi tha yah
aurat ?
Ans. The witness made nodding gesture to
word 'aadmi' as well as 'aurat'. After sometime she pointed towards the pant and shirt of the learned amicus curie for accused which gesture was interpreted by Smt. Reshma Parveen by stating that it was a man who took the witness.
Q. Woh apko kaha le gaya tha ?
Ans. The witness made gestures which was
interpreted by Smt. Reshma Parveen by stating that 'bahut durr le gaya tha'.
Q. Uss ladke ne apke sath kya kiya tha ?
Ans. The witness made gestures of closing of
the eyes, covering of face with dupatta, pulling by holding hands, slapping and then pointed towards her SC No. 09/12 State Vs. Arvind Kumar Page Nos. 22 of 34 23 private parts, which was interpreted by Smt. Reshma Parveen by stating that the person who took the witness had closed her eyes, covered her face with dupatta, pulled her and then committed wrong act with her.
Q. Uske baad aap ghar kaise aayi ?
Ans. The witness was unable to understand the
question and to answer the same.
Q. Kya waha par aur bachhe the ?
Ans. Ha.
Q. Kya aap aaj uss admi ko pehchan sakti
ho?
Ans. Ha.
At this stage, the wooden partition
between the victim and the accused was directed to be removed. The witness got up and pointed towards the persons sitting in the last row of the chairs in the Court Room.
The witness was then asked to specifically identified the accused. She pointed towards the accused with her finger and not towards the police constable escorting the accused, who was in judicial custody.
At this stage, learned Additional PP pointed out that the witness was making further SC No. 09/12 State Vs. Arvind Kumar Page Nos. 23 of 34 24 gestures after having seen the accused and was questioned further.
Q. Aap aur kya batana chahte ho?
Ans. The witness made gestures of removing
of her clothes which was interpreted by Smt. Reshma Parveen by stating that the accused had removed the clothes of the witness and committed wrong act with her."
45 The crossexamination of the witness was also conducted as under, by learned amicus curie, with the assistance of the support person namely Smt. Reshma Parveen : "Ques. Jab apko accused lekar ja raha tha tab waha aur log bhi the ?
Ans. The witness was explained the question through gestures but was unable to understand the question. She repeatedly pointed out towards the accused stating that he was present.
Q. Kya aap roi thi yah chilayi thi ?
Ans. The witness made certain sounds and
gestures which were interpreted by Smt. Reshma
Parveen that 'ha ro rahi thi or bol rahi thi ammi ....'.
Q. Woh admi apko kaise lekar gaya tha ?
Ans. The witness made sound of "lel" from her
SC No. 09/12 State Vs. Arvind Kumar Page Nos. 24 of 34
25
mouth. The sound was interpreted by Smt. Reshma
Parveen as 'rail'.
Q. Kya rail me aur log bhi the ?
Ans. The witness was explained the question
but was unable to understand it properly and to
answer the question.
Q. Railway Station se uss admi ka ghar kitni
durr tha ?
Ans. The witness made gestures which was
interpreted by Smt. Reshma Parveen as 'durr tha'.
Q. Railway Station se apko woh admi ghar
kaise le gaya tha ?
Ans. The witness made gesture of movement
with both her hands, which was interpreted by Smt. Reshma Parveen as motorcycle.
Q. Kya gaon me apne ro kar kissi ko bataya
ki yeh apko laya hai ?
Ans. The witness made gestures which was
interpreted by Smt. Reshma Parveen as 'yes'.
Q. Kya aap aas pados me khelte thi ?
Ans. The witness made gestures which was
interpreted by Smt. Reshma Parveen as 'yes'.
Q. Kya apne unn bachho ko bataya ki apko
zabardasti laye hai ?
Ans. The witness was unable to understand the
SC No. 09/12 State Vs. Arvind Kumar Page Nos. 25 of 34
26
question and to answer the same.
Q. Yeh aaj jo apne bataya hai woh apko kissi
ne bataya hai ?
Ans. The witness says word 'ammi'. Smt.
Reshma Parveen stated that the witness repeats
names as spoken to her and she has not understood
the question."
46 After closing of prosecution evidence, statement of accused
Arvind Kumar was recorded u/s 313 Cr.P.C. Accused stated that it was a false, fabricated and a blind case and that police officials had failed to apprehend the real culprit and that in order to save themselves, they had falsely implicated him in the present case. He further stated that he was innocent and had been falsely implicated in this case by the police at the instance of the relative of the prosecutrix/victim. He further stated that no such alleged incident had ever taken place. The accused declined to lead evidence in his defence.
47 Arguments have been addressed by learned amicus curie for the accused as well as learned Additional PP for the State. 48 Learned Additional PP has contended that from the statement of victim child and her family members as well as the medical evidence on record, the prosecution has succeeded in proving its case against the accused beyond reasonable doubt and has prayed that accused be SC No. 09/12 State Vs. Arvind Kumar Page Nos. 26 of 34 27 convicted for the charged offences.
49 On the other hand, learned amicus curie for accused has filed written arguments and has contended that the prosecution has miserably failed to prove its case against accused. It is contended that there is no person put forth by the prosecution, who had seen the accused taking away the victim child and that the victim child was recovered from an open ground where not only the jhuggi of accused but jhuggies of other persons were also situated and hence, no conclusion can be drawn that it was the accused who had brought the victim to the village from where recovery of the victim child was effected. It is further contended that there is no person examined by the prosecution who had seen the victim child residing in the jhuggi of the accused. The learned amicus curie has also relied upon the report Ex.PW11/A given by the medical board at IHBAS according to which victim has been opined to be incapable of deposing before the Court. It is contended that the prosecution has failed to link the accused with the charged offences and it is prayed that the accused be acquitted of the charged offence.
50 I have heard the arguments put forward by ld. Addl. PP and have gone through the written arguments filed by learned amicus curie for the accused and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case.
SC No. 09/12 State Vs. Arvind Kumar Page Nos. 27 of 34 28 51 In the present case, accused is alleged to have kidnapped a minor girl, aged about 11 years, and confined her in his house situated at village Saidullapur, Mazra Akbarpur, Post Safdarganj, PS Safdarganj, District Barabanki, UP, with intention to force her or seduce her to have illicit intercourse with him. He is further alleged to have committed rape upon her without her consent and against her wishes.
52 The first issue which arises for consideration is whether the victim N was a "minor" as on the initial date of commission of the offence. No documentary proof of age of the victim has been placed on record by the prosecution. The victim has also not been got examined by the Medical Board for determination of her bone age, however, the age of the victim child N has not been disputed in the present case. Further the prosecution has examined the father of the victim child namely Sh. Bikal as PW2 and her mausa / chacha Rashmuddin as PW3, who have deposed that the age of the victim child was 10 / 11 years at the time of the incident. The testimony of PW2 and PW3 qua the age of the victim child N has gone unrebutted and unchallenged. Hence,the prosecution has succeeded in proving that victim 'N' was a child aged about 10 / 11 years at the time of commission of offence.
53 The next issue which arises for consideration is whether, accused had kidnapped the victim N and had kept her secretly and wrongfully confined at his village Saidullapur at UP and further committed rape upon her between 16.02.2011 to 22.02.2011. Admittedly there is no SC No. 09/12 State Vs. Arvind Kumar Page Nos. 28 of 34 29 person who has seen accused taking away / kidnapping the victim child N. Further nothing has been placed on record by the prosecution, except for statement of PW16 Sh. Raj Kumar Verma that accused had come to Delhi for doing labour area in the area of Badli i.e. the area in which the victim child used to reside. However, even this statement does not show presence of accused in the locality of victim on the day the victim child went missing. The prosecution has relied upon the testimonies of PW1 Smt. Reshma Parveen, PW2 Sh. Bikal and PW3 Rashmuddin, all family members of the victim child N to prove that victim N was recovered from village Saidullapur, outside the jhuggi of the accused and had been taken there by the accused. The prosecution has also relied upon the testimony of PW16 Sh. Raj Kumar Verma, Pradhan of village Saidullapur and other police witnesses namely PW12 HC Yogender Singh, PW13 SI Nirbhay Kumar, police officials of UP team, who had accompanied the investigating officer from Delhi Police namely PW15 Sh. Alok Bajpai, to the village of the accused, to effect recovery of the victim child N. 54 Learned amicus curie for accused has contended that the recovery of the victim child from the ground outside the jhuggi of the accused does not connect the accused with her kidnapping since there were other jhuggies adjacent to and in the vicinity of the jhuggi of the accused and thus accused cannot be held liable for the offence of kidnapping. After perusal of testimonies of PW15 SI Alok Bajpai, PW12 HC Yogender Singh and PW1 Smt. Reshma Parveen, I find considerable force in the submission made by learned amicus curie for accused. From the crossexamination of these SC No. 09/12 State Vs. Arvind Kumar Page Nos. 29 of 34 30 witnesses, it is clearly brought out that not only the place, from where the victim child was recovered, was a thickly populated area but there were other jhuggies neighbouring and in front of the jhuggi of the accused. Further at the time of recovery the victim child was playing with other children between the cluster of jhuggies and the jhuggie of the accused was also part of the said cluster of the said jhuggies. Nothing has been placed on record by the IO which would lead to conclusion that the jhuggi in which accused was residing was in his exclusive possession. It is possible that the brother and bhabhi of the accused were residing in a joint family with the accused. Moreover no witness from the neighbouring jhuggies was joined in investigation by the IO to establish the fact that accused had brought the victim child to his jhuggi on 16.02.2011 and had kept her confined there till 22.02.2011. The prosecution has relied upon testimony of PW16 Sh. Raj Kumar Verma, Pradhan of the village, however, the PW16 had also not seen the victim confined / residing in the jhuggi of the accused. It is clearly brought out from his crossexamination that he had been told by other villagers as well as police officials that the accused had brought the victim child from Delhi and had kept her confined in his jhuggi.
55 During his crossexamination, the IO, PW15 SI Alok Bajpai stated that he had made inquiry from the several persons of the village, including brother and bhabhi of the accused, and had been told that accused Arvind had brought the victim child with him stating that she was daughter of his friend, yet IO did not know names of said persons nor did he record these SC No. 09/12 State Vs. Arvind Kumar Page Nos. 30 of 34 31 facts and the names in the case diary let alone record their statements u/s. 161 CrPC. The only thing PW15 SI Alok Bajpai could point out even after refreshing his memory from the case diary, was that he had given information of arrest of the accused to his brother Dharmender. The IO also stated that the victim child used to interact with her chachi/mausi (PW1) Smt.Reshma Parveen and whatever was told to him by said chachi/mausi Reshma Parveen, after interacting with the victim child, was recorded by him in the statement of Smt. Reshma Parveen u/s.161 CrPC. It is true that these facts viz that the victim N had told Smt. Reshma Parveen through signs and gestures that accused Arvind had taken her with him and that at that time he had covered her face with a cloth and had taken her to his village Saidullapur where he kept her secretly confined with intention to commit wrong act since the victim N was a child with challenged mental faculties, find mention in the statement u/s.161 CrPC of Smt. Reshma Parveen dated 23.02.2011, however, these facts were not deposed by the witness during her testimony before the Court as PW1. Similarly the testimonies of PW2 Sh. Bikal and PW3 Sh.Rashmuddin are devoid of details as to how the victim had reached village Saidullapur though mentioned in their respective statements u/s.161 CrPC dated 23.02.2011. The onus to prove the prosecution case and to elicit the correct facts from material witnesses is on the prosecution but in this case the prosecution has failed to do so.
56 The learned Additional PP has relied upon the testimony of victim child N, who was examined as CW1, in support of her contention that the testimony of CW1 proves the guilt of accused beyond reasonable doubt. On SC No. 09/12 State Vs. Arvind Kumar Page Nos. 31 of 34 32 the other hand learned amicus curie has relied upon the report of Medical Board at IHBAS i.e. Ex.PW11/A to contend that CW1 is not a competent witness and her testimony cannot be relied upon. I have perused the report Ex.PW11/A. According to the said report, the patient (child N) is opined to be suffering from severe mental retardation with seizur disorder and hence, she cannot relate experiences or remember facts pertaining to her experiences including traumatic experiences. Though the victim N has been examined as CW1 and has deposed by way of signs and gestures, which were interpreted for the Court by her support person / chachi / mausi Smt. Reshma Parveen, and has apparently identified the accused, her testimony alone cannot be relied upon to convict the accused specially in view of the report Ex.PW11/A given by the Medical Board at IHBAS. As already observed hereinabove the PW15 SI Alok Bajpai has deposed that he had recorded facts as were told to him by Smt. Reshma Parveen after interacting with the victim child N, who explained them to Smt. Reshma Parveen through signs and gestures. It was thus necessary for the prosecution to establish the facts regarding the incident from the testimony of Smt. Reshma Parveen, however, as is seen from her testimony as PW1, the relevant portion of which has been reproduced hereinabove, Smt. Reshma Parveen has not stated anything about being told by the victim about the manner in which the victim reached village Saidullapur and how and by whom she was taken there and the place where she was kept confined till 22.02.2011. It is pertinent to note that PW1 Smt. Reshma Parveen is the first person with whom the victim N had interacted after her recovery on 22.02.2011 and in these circumstances, omission on the part of the said witness to mention the SC No. 09/12 State Vs. Arvind Kumar Page Nos. 32 of 34 33 relevant details and the prosecution to elicit the same from the witness are by themselves fatal to the prosecution case.
57 The learned Additional PP has relied upon the MLC of the victim i.e. Ex.PW6/A and the subsequent opinion given thereupon by Dr. Richa vide Ex.PW14/B to contend that victim N had been sexually abused by the accused. The submission made by learned Additional PP cannot be sustained because the only conclusion which can be drawn, if at all, from the MLC Ex.PW6/A and opinion Ex.PW14/B is that the possibility of victim being sexually assaulted cannot be ruled out. Though it is unfortunate that the victim child, who is a child with challenged mental faculties, was subjected to sexual assault, the MLC Ex.PW6/A and opinion Ex.PW14/B do not establish accused as person responsible for the alleged sexual assault upon the victim child N. 58 The nutshell of foregoing discussion is that from the testimony of the victim child N as well as other material witnesses examined by it, the prosecution has miserably failed to prove that accused Arvind Kumar had kidnapped the victim child N, a minor aged about 11 years, out of the keeping of her lawful guardian, with intent to cause her to be secretly and wrongfully confined and kept her in his house with intent to force her or seduce her to have illicit intercourse with him. It has also failed to prove that accused had committed rape repeatedly upon the victim child without her consent and against her wishes. Accordingly, I acquit accused Arvind Kumar of the charged offence by giving him benefit of doubt. SC No. 09/12 State Vs. Arvind Kumar Page Nos. 33 of 34 34 File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 24.12.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi.
SC No. 09/12 State Vs. Arvind Kumar Page Nos. 34 of 34
35
FIR No. 54/11
P.S. Sultanpuri
State Vs. Arvind Kumar
13.12.2014
Present: Ld. Addl. PP for the State.
Accused produced from JC with Ms. Naveen Vats, learned proxy counsel for Sh. Shubham Asri, learned amicus curie.
Proxy counsel states that main counsel is not available due to strike call given by the bar, however, written arguments on behalf of accused filed.
At request of learned Additional PP, be listed for arguments on behalf of State on 17.12.2014.
ASJ (NW)01
Rohini/Delhi
13.12.2014
17.12.2014
Present: Ld. Addl. PP for the State.
Accused produced from JC with Sh. Shubham Asri, learned amicus curie.
The undersigned is busy in recording statements of victim children in case FIR No. 193/13 PS Shalimar Bagh and case FIR No.458/14 PS South Rohini and hence, no time left.
Be listed for FA on 19.12.2014.
ASJ (NW)01 Rohini/Delhi 17.12.2014 SC No. 09/12 State Vs. Arvind Kumar Page Nos. 35 of 34 36 19.12.2014 Present: Ld. Substitute Addl. PP for the State.
Accused produced from JC with Sh. Shubham Asri, learned amicus curie.
Regular Additional PP is on leave today.
At request, be listed for FA on 20.12.2014.
ASJ (NW)01
Rohini/Delhi
19.12.2014
20.12.2014
Present: Ld. Addl. PP for the State.
Accused produced from JC with Sh. Shubham Asri, learned amicus curie.
Arguments on behalf of State heard.
Be listed for further arguments if any, otherwise for judgment on 23.12.2014.
ASJ (NW)01
Rohini/Delhi
20.12.2014
23.12.2014
Present: Ld. Addl. PP for the State.
Accused produced from JC with Sh. Shubham Asri, learned SC No. 09/12 State Vs. Arvind Kumar Page Nos. 36 of 34 37 amicus curie.
Further arguments heard.
Be listed for judgment on 24.12.2014.
ASJ (NW)01
Rohini/Delhi
23.12.2014
24.12.2014
Present: Ld. Addl. PP for the State.
Accused produced from JC with Sh. Shubham Asri, learned amicus curie.
Vide separate judgment, announced today in the open Court, accused Arvind Kumar has acquitted of the charged offence. He is in J.C. He be released forthwith, if not required to be detained in any case or proceedings.
File be consigned to Record Room.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 24.12.2014 SC No. 09/12 State Vs. Arvind Kumar Page Nos. 37 of 34