Delhi District Court
State vs 1. Kapil Dev Sharma S/O Munni Lal on 21 January, 2011
IN THE COURT OF SH. RAMESH KUMAR - II, LD. ADDITIONAL
SESSIONS JUDGE - 0I : North East / KARKARDOOMA COURTS:
DELHI.
Case ID Number. 02402R0608722006
Sessions Case No. 65/2006
Assigned to Sessions. 17.11.2006
Arguments heard on 12/01/11
Date of order. 21.01.2011
FIR No. 272/2006
State Vs 1. Kapil Dev Sharma s/o Munni Lal
Sharma r/o D352, Gali No.8,
Bhajanpura, Delhi.
Police Station New Usmanpur
Under Section 328/363/365/368/376/506 IPC
JUDGEMENT
1. Station House Officer of Police Station New Usmanpur had filed a challan vide FIR no. 272/2006 dated 28.07.2006 u/s 363/365/368/328/376/506 IPC for the prosecution of accused Kapil Dev Sharma in the court of Ld. Metropolitan Magistrate and Trial Court after compliance of section 207 Cr. PC committed this case for trial before this court. State Vs. Kapil Dev Sharma SC No.65/2006 1/27
2. In brief facts, of the case are that from complaint of PW2 Babu Ram police had received a complaint dated 25.07.2006 Ex.PW4/A regarding missing of prosecutrix showing doubt upon accused Kapil Bhardwaj and on the basis of complaint police had registered the present FIR Ex.PW7/A dated 28.07.2006 regarding missing of prosecutrix. Accordingly, during the course of investigation police arrested accused Kapil Dev Sharma vide arrest memo Ex.PW6/A.
3. On the basis of material available on record ld. predecessor of this court framed a charges vide order dated 22.09.2007 against accused Kapil Dev Sharma for the offences punishable u/s 328/363/366/368/376/506 IPC to which accused did not plead guilty and claimed trial.
4. In order to prove its case prosecution has examined 16 witnesses namely PW1 Prosecutrix, PW2 Babu Ram Saini - complainant, PW3 Lady Ct. Noorjahan, PW4 HC Nepal Singh, PW5 W/ASI Anuradha, PW6 HC Satish Chand, PW7 SubInspector Chand Singh, PW8 HC Ramesh Chand, PW9 SubInspector Jawahar Singh, PW10 Ct. Adesh Kumar, PW11 Kusum Lata, PW12 Satish Kumar, PW13 Ct. Ram Pal Singh, PW14 Dr. M.Das, PW15 Dr. Rashmi Khatri and PW16 Sh. Ravinder Singh - Ld. MM who recorded the statement of prosecutrix u/s 164 Cr.P.C.
State Vs. Kapil Dev Sharma SC No.65/2006 2/27
5. PW1 prosecutrix deposed that on 24.07.2006 when she was going to market to purchase some goods, on the way accused Kapil Dev Sharma met her and dragged her into his coaching centre. From there accused took her to ISBT, Kashmere Gate in a TSR and from there accused again boarded TSR and took her to Sarai Kale Khan, from there accused took her to Mathura by bus and from there he took her to Bhopal by train and from there he took her to Nasik. She further deposed that in Nasik accused stayed in a hotel with her for two days and accused committed 'Galat Kaam' with her and accused made physical relations with her against her consent. She further deposed that from there accused took her to Shirdi by bus and in Shirdi accused kept her in a hotel for four days. She also deposed that accused made physical relations with her in the hotel also at Shirdi and thereafter, accused brought her Delhi by train. She further deposed that accused took her to some house in Sonia Vihar and in Sonia Vihar also accused made physical relations with her. She further deposed that from there accused took her to one Advocate in Delhi namely Sh. Neeraj Sharma but she do not remember his chamber number. On 24.08.2006 her statement recorded by Ld. MM u/s 164 Cr.P.C. Ex.PW1/A. She further deposed that family members of accused including his brother namely Deepak Sharma used to threaten her whenever met her. State Vs. Kapil Dev Sharma SC No.65/2006 3/27
6. This witness was cross examined by Ld. defence counsel at length. In the cross examination she deposed that she did not raise any alarm when the accused dragged her inside his coaching centre. She further deposed that she could not meet any police officials during the way to Kashmere Gate from Bhajanpura. She further deposed that she did not get any chance to told any public person or railway staff or police that accused was taking her Bhopal under threat. She deposed that some clothes were made available by the accused as she was having saree of her mother and further accused has purchased clothes from a shop at Mathura. Both accused and prosecutrix went to purchase the clothes. The market at Mathura was crowded but prosecutrix did not ask anybody there that accused was enticing her. In her statement under section 164 Cr.P.C. she deposed that both the accused and prosecutrix stayed at Nasik in a hotel and in her statement u/s 164 Cr.P.C. she did not disclose that accused had made physical relation against her will. She further deposed that in her statement u/s 164 Cr.P.C. she had deposed that accused has threatened her to kill if she would tell anybody regarding this fact but same has also not been mentioned in statement u/s 164 Cr.P.C. She further deposed that during her stay in Sonia Vihar other persons i.e. owner of that house were present but she did not tell to the owner of the house at Sonia Vihar or any neighbour that accused had enticed her and committed 'galat kaam' with her. On the question whether she stayed along with accused Kapil in Sonia Vihar as husband and wife, State Vs. Kapil Dev Sharma SC No.65/2006 4/27 she remained mum and did not reply to this question and on question whether the prosecutrix at any time tried to ring her parents and or try to run away from Sonia Vihar during her stay, on this question also this witness remains mum and did not reply.
7. On the question whether greeting cards Ex.PW1/DX2, PW1/DX3 and love letters total seven pages collectively Ex.PW1/DX4 and diary Ex.PW1/DX5 are in your handwriting prosecutrix admits that same are in her handwriting. She further deposed that she had gone to Divya Polyclinic and Diagnostic Centre at Vikas Marg in a chamber of doctor alone where she did not told to the doctor that accused had enticed her away. She further deposed that accused had made physical relation first with her in his coaching centre, was made before the Ld. MM during recording statement u/s 164 Cr.P.C. But this fact is not mentioned in the statement u/s 164 Cr.P.C.
8. PW2 Babu Ram Saini who is father of prosecutrix. He deposed that prosecutrix is his daughter and was studying in class 9th on the date of her missing and she was studying coaching centre of accused Kapil Dev Sharma. He further deposed that he lodged DD No.6A regarding missing of his daughter. He proved his statement recorded with police Ex.PW2/A. He further deposed that he had handed over the photocopy of date of birth State Vs. Kapil Dev Sharma SC No.65/2006 5/27 certificate issued by MCD to the police official and same was seized vide seizure memo Ex.PW2/B. The photocopy of progress report issued by Govt. Girls Sr. Secondary School, Yamuna Vihar, Delhi of his daughter pertaining to 9th standard is Mark P3. This witness was cross examined by Ld. defence counsel. During his cross examination this witness deposed that he did not make any statement to the police after 28.07.2006 even on 17.08.2006 when her daughter joined his company. He further deposed that he was not aware whether the prosecutrix had gone from her house after taking some articles or not even he did not make any call to PCR on 100 number till 25.07.2006 or made any written complaint. He further deposed that prosecutrix appeared in 10th standard from Open School in April 2006. He further deposed that he did not make any statement before the police against the accused after 17.08.2006 when prosecutrix return back to his house.
9. PW3 Lady Constable Noorjahan, she is the witness who produced the prosecutrix before the court along with her advocate where her statement u/s 161 Cr.P.C. was recorded by the Investigating Officer. In her statement u/s 161 Cr.P.C. she had stated that she wanted to go with her parents. On this, court had set free the prosecutrix.
10.PW4 HC Nepal Singh is a formal witness. He is the witness of recording of DD No.6A.
State Vs. Kapil Dev Sharma SC No.65/2006 6/27
11.PW5 W/ASI Anuradha is the witness who brought the prosecutrix to GTB Hospital for her medical examination. This witness has handed over MLC as well as one sealed pullanda with the sample seal of the hospital to the Investigating Officer which was seized vide seizure memo Ex.PW5/A.
12.PW6 HC Satish Chand is the witness who arrested accused vide arrest memo Ex.PW6/A and conducted personal search of accused Ex.PW6/B. with the permission of the court on making surrender of the accused before the court. This witness also brought accused to GTB Hospital for his medical examination. This witness after medical examination received a sealed pullanda from the hospital which he handed over to the Investigating Officer vide Ex.PW6/C.
13.PW7 SI Chand Singh is the formal witness and he had recorded FIR No. 272/2006 Ex.PW7/A u/s 363 IPC.
14.PW8 HC Ramesh Chand is a formal witness being MHC (M) Malkhana. This witness had received pullandas which he has sent to FSL, Rohini.
15.PW9 SI Jawahar Singh is the material witness being the Investigating Officer. He deposed that on 28.07.2006 father of the prosecurtix Babu Ram met him in the Police Station and got recorded his statement against State Vs. Kapil Dev Sharma SC No.65/2006 7/27 accused Kapil Dev. On statement of father of prosecutrix he prepared rukka Ex.PW9/A and then registered FIR through Duty Officer. This witness also recorded supplementary statement of father of prosecutrix. This witness deposed that he had recorded the statement of prosecutrix u/s 161 Cr.P.C. with the permission of Ld. MM and after recording her statement prosecutrix was set free. This witness had moved application before court of Ld. MM Sh. Ravinder Singh to get record the statement of prosecutrix u/s 164 Cr.P.C. which was recorded on 24.08.2006. This witness states that on 02.09.2006 accused Kapil Dev made his surrender before the court of Ld. MM from where this witness had arrested the accused with the permission of the court. After one day police remand the accused was produced before court on 03.09.2006 from where he was sent to JC. On completion of investigate, this witness handed over case file to SHO who prepared challan and submitted the same in the court. During his cross examination this witness deposed that prior to 24.07.2006 to 25.07.2006 the father of prosecutrix did not inform the police regarding missing of the prosecutrix. This witness deposed that Ld. MM did not ask the prosecutrix that she had left her house on her own or was enticed by the accused. This witness further deposed that at the time of recording of statement u/s 161 Cr.P.C. the relatives of prosecutrix were present in the court at the distance of 10 to 15 feets. This witness further deposed that on 17.08.2006 the prosecutrix mentioned her age 18 ½ in her statement u/s State Vs. Kapil Dev Sharma SC No.65/2006 8/27 161 Cr.P.C. This witness further deposed that he did not investigate the case at the places Mathura, Shridi, Pune and Bhopal. This witness further deposed that prosecutrix was aware with place Sonia Vihar where he stayed with the accused.
16.PW10 Ct. Adesh Kumar. This is the witness who handed over copy of FIR and rukka to ASI Jawahar Singh.
17.PW11 Kusum Lata, PGT (Social Studies), GGSSS, B2, Yamuna Vihar, Delhi appeared in the witness box. She deposed that she is PGT in Social Studies at Govt. Girls Senior Secondary School, Yamuna Vihar and this witness has produced admission register of prosecutrix for year 2003 wherein date of birth of the prosecutrix was 20.12.1988 which is Ex.PW11/A. In her cross examination, this witness has shown her ignorance whether any document regarding his date of birth was annexed by the parents of prosecutrix. This witness further deposed that the name of prosecutrix was struck from the role due to long absence from the school. This witness was again called for cross examination. At this time this witness produced application form of admission of prosecutrix in her school wherein date of birth of prosecutrix is mentioned as 20.12.1988 which is Ex.PW11/B. State Vs. Kapil Dev Sharma SC No.65/2006 9/27
18. PW12 Satish Kumar, Sub Registrar, Birth and Death, Shahdara North Zone, MCD, Delhi. This witness had brought birth register of year 1988 and as per the said register there is one entry at serial No.7751 dated 30.12.1988. He further deposed that as per the said entry a female child was born to Rama Devi wife of Babu Ram r/o C58/22A, Gali No.5, Gamri Extension and as per the said record the date of birth of female child is 29.12.1988 and photocopy of the said register is Ex.PW12/A.
19.PW13 Ct. Ram Pal Singh is also formal witness who deposit the sealed pullanda to FSL Rohini.
20.PW14 Dr. M. Das, Medical Officer, GTB Hospital. This witness had conducted medical examination vide Ex.PW 14/A of accused Kapil Dev Sharma brought by Ct. Satish.
21.PW15 Dr. Rashmi Khatri, Gynecologist. This witness had conducted medical examination Ex.PW15/A of prosecutrix wherein age of prosecutrix was stated to be 17 ½ who was brought by W/ASI Anuradha. In the history, this witness had deposed that prosecutrix having history of absconded with boy Kapil Dev and she stayed with the boys for eight days. She also having history of sexual relationship with the boy and this witness State Vs. Kapil Dev Sharma SC No.65/2006 10/27 deposed that last intercourse was done on 24.07.2006. This witness found no fresh injury, mark on the body of prosecutrix. This witness had advised the bone XRay to determine the age of prosecutrix.
22.PW16 Sh. Ravinder Singh, Ld. MM, District Courts, Saket, New Delhi. This witness on application Ex.PW16/B had recorded the statement of prosecutrix u/s 164 Cr.P.C.
23.After prosecution evidence, statement of accused u/s 313 Cr.PC was recorded where accused denied all the allegations put against him. In his statement u/s 313 Cr.P.C. he had denied of having taken obscene photograph of prosecutrix from his mobile or he had mixed anything in the cold drink and blackmailed her and committee 'galat kaam' in his coaching centre. He had led the evidence of four defence witnesses i.e. DW1 Ajeet Singh, DW2 Rekha, DW3 Raj Kumar Verma and DW4 Dr. T.K. Vohra in his defence.
24.DW1 Ajeet Singh who is assistant Nodal officer from Idea Cellular Ltd. who deposed that call detail from the period of 24.05.2006 to 24.08.2006 of idea mobile nO.9891613837 is not available in his system.
25.DW2 Rekha who is a summoned witness. This witness deposed that she State Vs. Kapil Dev Sharma SC No.65/2006 11/27 know that prosecutrix used to go to tuition at the residence of accused Kapil Dev Sharma where he was running coaching centre. This witness further deposed that she had also taken coaching from the coaching centre of accused for three months about four years back.
26.DW3 Raj Kumar Verma, this witness is the landlord of house of Sonia Vihar where prosecutrix and accused stayed. This witness further deposed that both accused and prosecutrix represented themselves as wife and husband. This witness further deposed that both these accused and prosecutrix were living freely without showing any pressure or confinement and both prosecutrix and accused used to visit local market and other places with other cotenants.
27.DW4 Dr. T.K. Vohra consultant radiologist. This witness had seen XRay report pertaining to the bone age already Ex.PW1/DX7. This witness further deposed that he had given report regarding age of prosecutrix on X Ray Plates which were brought to him by which the age of prosecutrix was 18 to 20 years on 12.08.2006. This witness did not examine prosecutrix physically.
28.After recording of defence evidence, case was fixed for final arguments. ARGUMENTS State Vs. Kapil Dev Sharma SC No.65/2006 12/27
29. Ld. APP for state, Sh. Zenual Abedeen argued that accused had enticed the prosecutrix with intention to commit rape upon her and in this regard a complaint showing doubt upon accused was filed with the Police Station accordingly case under section 363/376/365/368/328/506 IPC was registered. Ld. APP further argued that on the day of commission of offence the prosecutrix was aged about 17 ½ years. In the year 2006 prosecutrix was in 10th standard and according to documentary evidence date of birth of prosecutrix is 20.12.1988. Ld. APP for state submits that prosecutrix was taken by the accused without the consent of the guardian and according to medical report accused had committed rape upon the prosecutrix hence, he has committed the offence punishable 376 & 363 IPC. Ld. APP for state relies upon the statement of prosecutrix wherein the prosecutrix has stated that accused had committed galat kaam with her by putting some stupifying substance in cold drink when she was going to market and accused dragged her into coaching centre. Further Ld. APP rely his case on the statement of PW2 Babu Ram father of prosecutrix who has made complaint to the police and shown his doubt upon the accused. Ld. APP submits that since the statement of prosecutrix and statement of father of prosecutrix support the case of prosecution, therefore, the present case is squarely covered under the ingredients of 375 IPC and the statement of prosecutrix is sufficient to convict the accused for offence charged as State Vs. Kapil Dev Sharma SC No.65/2006 13/27 prosecution has proved its case beyond reasonable doubt.
30.On the other hand, Sh. C.S.S. Tomar counsel for accused submits that accused has been implicated falsely in the present case. Ld. counsel for accused insisted upon the conduct of the prosecutrix with the accused and he insisted upon the love letters written by the prosecutrix to the accused and photographs of accused and prosecutrix which shows the willingness of prosecutrix. For the purpose of conviction u/s 376 IPC Ld. counsel for accused pointed out that age of prosecutrix must be 16 years and in the present case age of prosecutrix is 17 ½ years on the date of alleged commission of offence, hence accused cannot be convicted under the provision of 376 IPC. Ld. counsel for accused pointed out different statements of prosecutrix, first statement dated 17.08.2006 which Ex.PW1/B wherein the prosecutrix had stated that she was in 12th and for the last three/four months she was not feeling well at home so that she was not willing to live at her home, and in that statement she had shown her ignorance with any identity of accused Kapil Bhardwaj. And in another statement dated 22.08.2006 prosecutrix stated that statement dated 17.08.2006 she had given under the pressure of counsel for accused Kapil Bhardwaj and further her statement u/s 164 Cr.P.C. Ex.PW1/A made before Ld. MM wherein she had deposed that she used to take tuition from accused Kapil Sharma and when one day she was going to Bazar from her State Vs. Kapil Dev Sharma SC No.65/2006 14/27 house accused Kapil dragged her into his coaching centre, thereafter, Kapil took her to various places and committed galat kaam. Ld. counsel further insisted his arguments on medical report where the age of prosecutrix is 17 ½ years. On the basis of love letters and photographs Ld. counsel for accused states that this shows the maturity and understanding capacity of the prosecutrix and when the prosecutrix is so mature and capable to understand the negative and positive effect of her steps in her life then why this prosecutrix did not disclose this fact to any member of her family. Since the prosecutrix was in relation with accused. Ld. counsel for accused further submits that the prosecutrix visited almost half part of India but no police person or public person met her from whom she could have asked for help even while staying at Sonia Vihar which is very much near to the parental house of prosecutrix but she did not try to ran away from the confinement of accused. Neither she raised any alarm for help from the landlord or from any public person. On these observations, ld. counsel submits that prosecutrix is consenting party in the present case. Hence, accused cannot be convicted under section 376 IPC and he prayed for acquittal of accused on these grounds. Ld. counsel for accused pointed out that in her cross examination prosecutrix had admitted that love letters written to accused were in her handwriting. She also admits the photographs with the accused. Further in her cross examination this witness has admitted that coaching centre of accused is in busy crowded State Vs. Kapil Dev Sharma SC No.65/2006 15/27 market. During the course of argument ld. counsel for accused cited various judgments of Hon'ble Supreme Court of India titled as 'S. Vardrajan Vs. State of Madras AIR 1965 942' wherein this hon'ble court made a distinction between taking and allowing a minor to accompany a person. This judgment guide for the purpose of section 361 IPC where the minor leaves her father protection knowing and having capacity to know the full import what she is doing voluntarily joins the accused persons, the accused cannot be said to have taken her away from the keeping of her unlawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused persons or active participation by him in the formation of intention of minor to leave the house of guardian. (Para 9.).
31.In case 'State of Karantaka Vs. Suresh Babu, Pukraj Porral AIR 1994 Supreme Court 1966' wherein Hon'ble Supreme Court has held that prosecutrix went with the accused voluntarily at different places and age of prosecutrix was sixteen years but medical evidence shows that she could be of 18 years. In evidence prosecutrix stated that accused did something with her which he ought to not have done. It cannot be inferred from this evidence that accused had intercourse with her. Offence u/s 376 IPC is not made out.
State Vs. Kapil Dev Sharma SC No.65/2006 16/27
32.In judgment 'Suresh Babu Vs. State of Kerala, 2001 (2) Crimes 313 of Kerala High Court'. This judgment states that prosecutrix was in love with accused left her house and joined accused and stayed in the house of friend of accused. Accused could not be said to have taken or enticed her.
33.Further during the course of argument Ld. counsel placed copy of judgment of Hon'ble High Court of Delhi case titled as 'Kulwant Singh Vs. State of GNCT of Delhi'. In that case age of prosecutrix was 17 years and age of accused was 18 years as girl was enough mature and had taken decision to run away with a boy of utmost of her age. The appellant at the time of incident was 18 years if prosecutrix is around 17 years of age had run away with him. In this case this Hon'ble court had not considered that appellant should be convicted u/s 363, 366 and 376 IPC.
34.Ld. counsel for accused has also relied upon judgment of Hon'ble Supreme Court in case of 'State of Himachal Pradesh Vs. Suresh Kumar @ Chhotu AIR 2009 Supreme Court 1109'. In that case it was claimed by the prosecutrix that she was below the 16 years of age if her consent if any was of no consequence wherein the age of prosecutrix as below 16 years was not established and acquittal of accused was held proper. State Vs. Kapil Dev Sharma SC No.65/2006 17/27
35.Arguments heard. Record perused. On perusal of record it is revealed that present case was registered on the complaint of PW2 wherein doubt was shown upon accused Kapil Dev Sharma. PW1 prosecutrix gave two different statements u/s 161 Cr.P.C. of different dates one dated 17.08.2006 Ex.PW1/B and other dated 22.08.2006. In her statement dated 17.08.2006, she states that she was not willing to live at her house and on that pretext she left her house by wearing one pair clothes and about having Rs.2,000/ from her house and she reached at Sarai Kalen Khan Bus Adda and then to Mathura and so on she travelled on different places. In her statement u/s 161 Cr.P.C dated 22.08.2006 she states that she had given statement dated 17.08.2006 under the influence of accused Kapil Bhardwaj and his advocate.
36.The deposition of prosecutrix on two different dates i.e. 17.08.2006 and statement dated 22.08.2006 are totally contradicted . In her statement to the police dated 17.08.2006 she had stated that she had left the house at her own as she was not feeling well and her statement dated 22.08.2006 just opposite to her statement. In this statement she stated that she had given her statement 17.08.2006 due to the fear of Kapil Bhardwaj and his advocate and alleged that one day Kapil committed galat kaam against my wish and further in her statement before Ld. MM u/s 164 Cr.P.C. Ex.PW1/A she never stated that accused Kapil Sharma had committed 'galat kaam' against State Vs. Kapil Dev Sharma SC No.65/2006 18/27 her will. Medical evidence of prosecutrix also does not show any physical injury on her person neither on her private part even to the doctor prosecutrix did not disclosed that accused Kapil Sharma has committed rape against her will.
37.For the purpose of offence of rape it would be relevant to discuss the definition of rape has been given under section 375 IPC. Section 375 IPC is being reproduced as under: "375. Rape - A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First. Against her will.
Secondly. Without her consent.
Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. With or without her consent, when she is under sixteen years of age.
State Vs. Kapil Dev Sharma SC No.65/2006 19/27 Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Explanation. Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
Section 376 IPC which is reproduced hereunder:
Section 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever,
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii)on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or State Vs. Kapil Dev Sharma SC No.65/2006 20/27
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution' or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) Commits rape on a woman when she is under twelve years of age; or
(g) Commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub section.
Explanation 2 "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment of persons during convalescence or State Vs. Kapil Dev Sharma SC No.65/2006 21/27 of persons requiring medical attention or rehabilitation.]
38. Rather PW15 Dr. Rashmi Khatri stated that prosecutrix absconded with boy Kapil Sharma (22 years) to Bhopal stayed with the boys for eight days and had sexual intercourse with the boy. Further PW15 stated that no fresh injury mark on the body of patient ( prosecutrix) judgment 'Gokul Vs. State of U.P. 2003 Cri.L.J. 1100' (relied) and her vaginal smear was taken and sealed and in the cross examination this witness clearly states that she cannot say that hymen was old or newly torn. On the point of enticing of prosecutrix by accused Judgment 'S. Vardhrajan Vs. State and Kulwant Singh Vs. Govt. of NCT of Delhi.' (relied).
39.The statement of prosecutrix is highly improbable as same has not been corroborated by medical evidence. Even FSL report shows that blood was detected but blood sample was putrefied hence no opinion was given.
Secondly, semen could not be detected on exhibits. No clothes of prosecutrix and accused were seized by the doctors.
40.Further, age of prosecutrix is 17 ½ years and she stayed at different places with the accused and in her evidence before the court she had deposed that institute of accused is in highly populated area and the places like railway station, bus adda and Shridi temple visited are public places where public at large number are always present and it cannot be said that prosecutrix was State Vs. Kapil Dev Sharma SC No.65/2006 22/27 unconscious during her entire journey. Even during her stay at Sonia Vihar Delhi she did not disclose this fact that accused has forcibly taken her or committing rape upon her against her will. In his defence accused has examined DW3 Raj Kumar Verma s/o Ram Naresh Verma, aged about 50 years r/o House No. A1/98, First Pusta, Sonia Vihar, Delhi who is the landlord of this house where prosecutrix stayed with the accused as wife and husband. This witness has stated that prosecutrix used to visit alone to local market and sometimes with the accused. Even one or two household articles are still lying at the said rented room. Age of prosecutrix is not disputed.
41.In my opinion too it is not possible for single man to rape a woman without any resistance at all when subjected to forcibly intercourse, the victim is likely to offer some resistance to protect her body from injury in form of bruises, abrasions, etc. that would offer physical evidence regarding the incident which is missing in the present case. As per the prosecutrix story rape was committed upon prosecutrix against her will.
42.Hon'ble Allahabad High Court in case titled as 'Gokul Vs. State of U.P., State Vs. Kapil Dev Sharma SC No.65/2006 23/27 2003 Cri. L.J. 1100' (relied) wherein it has been held that prosecutrix though went to market in the company of other persons returned back with the accused alone. Plea of prosecutrix that accused dragged her, throw her on ground behind bushes and forcibly raped inspite of her resistance. No injury was found on the body of prosecutrix in the medical examination. Prosecutrix was to held to be consenting party.
43.To bring the case of prosecution under the definition of rape on the ground of injury, there must be some injury on the body of prosecutrix. No doubt hymen of prosecutrix was found torn but in cross examination doctor has gave opinion that it cannot be said that hymen was old or newly torn.
44.If a lady is ravished by forcible intercourse then the injury (external) must appear on her person whereas in the present case no external injury was found on the body of prosecutrix. In my view these submissions and admissions raised doubt upon the story of the prosecution as no injury is found on the body of prosecutrix. Chemical analysis also recorded no semen or blood, as blood sample was putrefied, even nothing was found either on pubic hair or vaginal swab of prosecutrix.
45.On her statement where she states that she did not find any police officials State Vs. Kapil Dev Sharma SC No.65/2006 24/27 or public person from whom she might have asked to help her. Even in her entire tour with accused she did not find any person to whom she could make a complaint it is highly improbable and unbelievable and it is very strange that country like India which is having population of 125 crores but none of the 25% people of that population she could find to make any complaint or ask help. Even when accused took her to Kashmere Gate ISBT by TSR she did not find any police personnel or any public person. It is highly unbelievable. Even her stay at Sonia Vihar with accused, which is very close to the residence of prosecutrix she did not disclose this fact that accused had enticed her and committing rape with her against her will. Rather she enjoyed Sonia Vihar by visiting market with the family members and other cotenants of landlord. Even the diary Ex.PW1/DX5 shows that the prosecutrix was in deep love affairs with the accused.
46.Since the technology has been changed during these days and it is natural that technology effect the mental level of the person and since the culture of society has also been changed, hence duties lies upon the shoulders of parents and children too that they must think before moving their step into either direction whether it is good. Crime against the woman is also a kind of terror against the woman and as society have become vigilant in the case of terrorist, society need to be vigilant in such cases also. State Vs. Kapil Dev Sharma SC No.65/2006 25/27
47.As in the present case, the age of prosecutrix was 17 ½ years and was studying in class 12th on the day of incident and writing of love letters by prosecutrix to the accused and her expression therein shows that she was quite mature and medical report also support that no physical injury was found on the body of prosecutrix.
48.In compliance of judgment of Hon'ble Supreme Court in case titled as 'State of Himachal Pradesh Vs. Suresh Kumar @ Chhotu, AIR 2009 SC 1109' wherein it has been held that :
"Prosecutrix was below the 16 years of age if her consent if any was of no consequence wherein the age of prosecutrix as below 16 years was not established and acquittal of accused was held proper."
49.Further in judgment of Hon'ble High Court of Delhi in case titled 'Kulwant Singh Vs. State of Govt. of NCT of Delhi' in criminal appeal No.715 of 2008 decided on 18.08.2010 wherein it has been held :
"In that case girl was mature enough and had taken a decision to run away with the boy of her own age as he was 18 years of age and prosecutrix was around 17 years of age. This court had not considered that appellant should have been convicted under section 376, 366 and 363 IPC."
State Vs. Kapil Dev Sharma SC No.65/2006 26/27
50.In my view, it would be dangerous to pass a conviction merely on the statement of prosecutrix without corroboration. Hence, 114 A of Evidence Act is not applicable to the present case. Having considered all facts and circumstances as mentioned above, I am of the considered opinion that the prosecution has failed to prove the charge against accused beyond reasonable doubt. Accordingly, under the facts and circumstances of the case, I hereby acquit the accused Kapil Dev Sharma by giving him benefit of doubt from charges. In terms of directions of Hon'ble High Court of Delhi accused Kapil Dev Sharma is directed to execute fresh bail bond in sum of Rs.20,000/ with one surety in the like amount for the period of six months. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 21.01.2011 (RAMESH KUMARII) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS: DELHI State Vs. Kapil Dev Sharma SC No.65/2006 27/27