Delhi District Court
Rathore And Pw-3 Jai Singh vs . on 30 April, 2014
IN THE COURT OF SH. BHARAT PARASHAR, ASJ-01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Case ID No. 02403R0100732013
Date of filing of charge sheet : 07.08.2013
Date of framing of charge : 11.09.2013
Date of final arguments : 31.03.2014
(Accused in the intervening period was not produced from JC
due to Lok Sabha Elections.)
Date of judgment : 30.04.2014
SC No. 111/13
FIR No. 96/13
PS Sagarpur
U/s 363/366/376 IPC
& 4 of POCSO Act
In re:
STATE
Vs.
Aniket Visnoi @ Monu @ Ariyan
S/o Sunil Visnoi
R/o Village & Post Patti Wala Mohalla,
Teh & PS - Kant,
Distt. Muradabad, U.P.
APPEARANCES
Present : Sh. Shiv Kumar, Ld. APP for the State.
Sh. Hari Singh, Ld. Counsel for the accused.
JUDGMENT
1. Briefly stated the case of prosecution as unfolded by the report u/s 173 Cr.P.C. is as under:
2. That on 07.05.13 a missing report was lodged at PS Sagarpur by one Ganesh Rajak regarding his daughter aged about 15 years. It was State v. Aniket Vishnoi @ Monu @ Ariyan Page 1 of 10 stated by him that on 06.05.13 at around 4 PM his daughter left the house and despite his best efforts he was not able to trace her. The information was recorded vide DD No. 15 A and on the basis of it a case U/s 363 IPC was also registered and investigation in this regard was handed over to ASI Yad Ram. Subsequently on the basis of some information received at PS Sagarpur on 17.05.2013, HC Raj Kumar and Ct. Sachin went in search of prosecutrix to Muradabad UP. They were carrying the photograph of the prosecutrix alongwith them to identify her. On the morning of 18.05.13 they found the prosecutrix sitting alongwith the present accused Aniket at the platform of Muradabad Railway Station and accordingly they brought both prosecutrix and accused to Delhi. The prosecutrix was then got medically examined at Deen Dayal Upadhyay Hospital and the doctors collected various samples such as her under garments, nail clippings, pubic hair, pennial swab, vaginal swab, vaginal semen and blood sample etc and sealed them in different pulandas which were collected by the IO. The prosecutrix was thereafter produced before the Court where her statement under S. 164 Cr.PC was got recorded.
3. ASI Yad Ram also collected the I-card of the school of the prosecutrix and her mark sheet from her father wherein her date of birth was recorded as 10.07.99. Thereafter the subsequent investigation was entrusted to SI Chetan Mandia who arrested the accused and also got him medically examined at Deen Dayal Upadhyay Hospital. The doctors also collected certain samples such as under garments, blood gauze piece, pubic hair of the accused and sealed them in separate pullandas and they were also collected by the IO.
4. However in her statement made to the police, the prosecutrix stated that accused had induced her away from her home on the promise of marriage and had taken her to Mumbai where they stayed at the house of one acquaintance who had met them in the train to Mumbai. She further State v. Aniket Vishnoi @ Monu @ Ariyan Page 2 of 10 stated that at Mumbai accused had committed sexual intercourse with her on the promise of marriage. She also stated that accused thereafter took her to Lalapur, UP to her maternal grand mother's house but when she did not allow them to stay at her house so he took her to Muradabad, UP and there they stayed for two days. Accused however again committed sexual intercourse with her over there. At Muradabad, UP they were however apprehended by the police and were thus brought to Delhi. She further stated that earlier also on 06.05.13 accused had committed sexual intercourse with her at the house of one of their neighbour Vimi Chhabra again on the promise of marriage. During subsequent investigation accused also allegedly made a disclosure statement and also pointed out the house of Vimi Chhabra where he had committed sexual intercourse with the prosecutrix.
5. A bed sheet which was there on the bed in the house of Vimi Chhabra when accused had made physical relations with the prosecutrix was also taken into possession. The IO also collected the call detail record of mobile phone No. 8826410659 which was issued in the name of mother of prosecutrix and was allegedly used by the prosecutrix to talk to the accused. The call detail record of mobile phone No. 8477041068 issued in the name of one Arvinder Kumar with which accused allegedly used to talk to the prosecutrix was also collected. Thus upon completion of necessary further investigation charge sheet was prepared and was filed in the court for trial.
6. After due compliance of section 207 Cr.P.C. charge for the offence u/s 363/366/376 of IPC & Section 6 of POCSO Act was framed against the accused to which he pleaded not guilty and claimed trial.
7. Prosecution thereafter in order to prove its case examined 17 witnesses. The accused was thereafter examined u/s 313 Cr.P.C. He State v. Aniket Vishnoi @ Monu @ Ariyan Page 3 of 10 however refused to lead any evidence in his defence.
8. PW-7 was the prosecutrix who in her deposition reiterated the prosecution story while stating that accused had enticed her to Mumbai on the promise of marriage. She also disclosed that prior to leaving Delhi accused had sexual relations with her at the house of one Vimi Chhabra. I shall be discussing her deposition in detail at a later stage of my judgment.
9. PW-6, Ganesh Rajak was the father of prosecutrix who lodged the initial missing report of her daughter with the police. In his deposition he proved the report so lodged by him besides reiterating the proceedings which took place after his daughter was recovered.
10. PW-4, Vimi Chhabra @ Jassi was a neighbour of prosecutrix. She stated that on 06.05.13, prosecutrix had come alongwith accused and stayed together in a room in her house for about half an hour. She stated that later on she came to know that accused had sexual intercourse with the prosecutrix in her house on that day. She further stated that the bed sheet which was there on the bed on that day was also taken into possession by the police.
11. PW-2, Sh. Shushil Singh Rathore, Teacher MCD Primary School, Sagarpur and PW 3 Jai Singh official of SKV No. 2, School, Sagarpur, produced the admission record of the prosecutrix as she used to study in their school. In the school records, date of birth of prosecutrix was recorded as 10.07.99.
12. PW-1, Dr. Shweta Aggarwal had medically examined the prosecutrix vide MLC Ex. PW 1/A and found her hymen torn.
13. PW-5, Dr. Y.N. Maurya, Medical Officer, DDU Hospital proved the medical examination notes made by one Dr. Rohit Walia on the MLC of State v. Aniket Vishnoi @ Monu @ Ariyan Page 4 of 10 prosecutrix as the concerned doctor was no longer available and he was acquainted with his hand writing and signatures.
14. PW-8, Angileena @ Pinky claimed to be married to accused Aniket Vishnoi prior to the present incident. She stated that after her previous husband had left her then she had entered into a love marriage with accused Aniket and later when accused ran away with another girl than at that time she was in Mumbai and accused was in Delhi.
15. PW-9, R.K. Singh was the Nodal Officer, Bharti Airtel who proved the call detail record alongwith Cell ID Chart of mobile phone No. 8826410659.
16. PW-11, HC Raj Kumar had gone to Muradabad, UP alongwith Ct. Sachin on 18.05.13 and found prosecutrix present at the railway station alongwith accused. He accordingly brought them to Delhi and handed them to IO ASI Yad Ram. Later on he joined the investigation alongwith ASI Yad Ram and subsequently with IO SI Chetan Mandia and proved the proceedings conducted in his presence regarding the arrest and medical examination of the prosecutrix and the accused.
17. PW-13, HC Jag Singh was the M(HC)M PS Sagarpur with whom the various sealed pulandas prepared by the doctors after the examination of prosecutrix and accused were deposited by the IO. Later on he sent them to FSL Rohini through Ct. Vinod.
18. PW-12, Ct. Vinod had taken the sealed pulandas to FSL on 23.05.13 vide RC No. 40/21/13.
19. PW-14, Pawan Singh was the Nodal officer, Idea Cellular Ltd. who proved the call detail record alongwith Cell ID chart of mobile phone No. 8477041068.
State v. Aniket Vishnoi @ Monu @ Ariyan Page 5 of 1020. PW-15, HC Chet Ram was the duty officer PS Sagarpur who recorded FIR Ex. PW 15A in the present case.
21. PW-16, ASI Yad Ram and PW 17 SI Chetan Mandia were the two Investigating Officers. In their deposition they proved the proceedings so carried out by them besides proving the various memos prepared during the course of investigation.
22. PW-10, W/Ct. Gayatri had joined the investigation with IO ASI Yad Ram when prosecutrix was got medically examined at DDU hospital and doctors handed over the sealed pulandas to her which she later on gave to IO ASI Yad Ram.
23. Before closure of the prosecution evidence, Ld. Counsel for accused also made a statement on 19.02.14 that he does not dispute the correctness or veracity of the medical examination report of the prosecutrix or that of the accused or the proceedings u/s 164 Cr.PC carried out by Ld. M.M. Gomti Manocha while recording statement u/s 164 Cr.PC of the prosecutrix. He thus stated that the said record may be taken as proved without formal examination of the concerned witnesses.
24. In his statement U/s 313 Cr.PC accused however stated the case of the prosecution to be false and the prosecution witnesses to be deposing falsely.
25. I have heard the arguments as addressed by Ld. Counsel for accused and Ld. APP for the State.
26. It was submitted by Ld. Defence Counsel that the prosecutrix got the present case falsely registered as she was pressurizing the accused to marry her and accused was refusing to do so. It was also submitted that no such incident of rape at all took place and the entire State v. Aniket Vishnoi @ Monu @ Ariyan Page 6 of 10 story has been fabricated now in order to pressurize the accused to marry her. It was also submitted that the father of the prosecutrix got the present false case registered due to enimity. It was further submitted that the prosecutrix has contradicted the story of prosecution when she stated that at Muradabad she and accused were first apprehended by Muradabad police and from there they were brought to Delhi by the Police officials. It was pointed out that PW-11, HC Raj Kumar on the contrary stated that on the basis of some information received by him he had gone to Muradabad and found the prosecutrix alongwith the accused at the railway station Muradabad and from there brought them to Delhi.
27. On the other hand Ld. APP strongly opposed the contentions of Ld. defence Counsel stating that not only the deposition of the prosecution witnesses is cogent and convincing but even otherwise nothing could come out in the cross-examination of prosecutrix or her father which could show that they were deposing falsely in any manner. It was also submitted that in view of the provisions of Section 29 and Section 30 POCSO Act which raises a mandatory presumption against the accused in any prosecution for the offence U/s 6 POCSO Act that he has committed the offence unless the contrary is proved further clinches the case of the prosecution in its favour. It was submitted that accused has miserably failed to even prove by preponderance of probabilities much less beyond shadows of reasonable doubts that no such act of rape was committed by him. Accused was thus prayed to be convicted.
28. I have carefully perused the record.
29. At the outset I may state that in so far as the age of prosecutrix being less than 18 years or her date of birth being 10.07.99 as recorded in her school records is concerned the same stands proved beyond any dispute on record. The deposition of PW-2 Sushil Singh State v. Aniket Vishnoi @ Monu @ Ariyan Page 7 of 10 Rathore and PW-3 Jai Singh, in this regard completely remained unimpeached at the altar of cross examination. Even in the cross- examination of prosecutrix also no suggestion to the contrary was put to her in this regard. It thus, clearly stands proved that as on the date of alleged offence prosecutrix was even less than 16 years of age.
30. Coming now to the deposition of prosecutrix who is the sole star witness of the prosecution. I may state that it is apparent that accused and the prosecutrix had developed a liking for each other. Infact in her cross examination as conducted by Ld. Counsel for accused, she replied in affirmative to a question that she and accused had developed liking for each other and a love affair started between them. In her deposition she gave vivid details of the entire episode as to how accused induced her away initially to Mumbai and then to Muradabad and had sexual relations with her on the promise of marriage. She also stated that prior to leaving Delhi she had met accused in the house of Vimi Chhabra also and accused had sexual relations with her over there again on the promise of marriage. This fact also stood corroborated from the deposition of PW 4 Vimi Chhabra and whose deposition in this regard was not disputed on behalf of accused in his cross-examination.
31. Infact in the cross-examination of the prosecutrix it was not even suggested to her that accused had not taken her either to Mumbai or to Muradabad or never had sexual relations with her. On the other hand questions were put to her as to whether she raised any hue and cry or objected to when accued had sexual relations with her. Certainly the prosecutrix stated that she did not object when accused established sexual relations with her but clarified that accused had promised her of marriage.
32. Moreover in the cross-examination of PW 11 HC Raj Kumar who had gone to bring petitioner and accused to Delhi from Muradabad, it State v. Aniket Vishnoi @ Monu @ Ariyan Page 8 of 10 was suggested that the prosecutrix and accused were already in the custody of Muradabad police or that he took their custody from Muradabad police only. This suggestion further fortifies the aforesaid conclusion that accused had indeed gone to Muradabad alongwith proseuctrix. A contradiction certainly did appear in the deposition of HC Raj Kumar vis-a- vis that of the prosecutrix as she stated that she and accused were first apprehended by the Muradabad police and from there the Delhi police officials took their custody. PW 11 HC Raj Kumar on the other hand stated that prosecutrix and accused were found by him at the railway station Muradabad. However this contradiction ceases to have any significance as the factum of accused having gone to Muradabad alongwith prosecutrix and their subsequent apprehension from Muradabad stands well established not only from the other evidence led on record but accused himself has also not disputed the same. Moreover, nothing could be elicited in the cross-examination of either prosecutrix or any other prosecution witness which could suggest that prosecutrix was in any manner deposing falsely or that no such incident took place. There is thus no reason to doubt the deposition of the proseuctrix to the effect that accused had sexual relations with her on a number of occasions at Delhi, Mumbai and Muradabad on the promise of marriage.
33. From the aforesaid nature of evidence led by the prosecution on record, it clearly stands established that accused did have sexual relations with the prosecutrix, not only in the house of PW-4 Vimi Chhabra in Delhi but also at Mumbai and at Muradabad. This conclusion which clearly emerges out from the evidence also finds support from the mandatory presumption as available to the prosecution U/s 29 POCSO Act 2012. Accused on the other hand has certainly failed in proving to the contrary even by preponderance of probabilities much less beyond shadows of reasonable doubts.
State v. Aniket Vishnoi @ Monu @ Ariyan Page 9 of 1034. Moreover the suggestion put to PW-6 Ganesh Rajak, father of the prosecutrix that accused was falsely implicated in the present case due to previous enimity, on the face of it appears to be a vague suggestion. Nothing has been shown as to on what ground such previous eneimity existed between the parties.
35. In the light of my aforesaid discussion when the substance of the accusation that accused not only had sexual relations with the prosecutrix on the promise of marriage but even induced her away to Mumbai and Muradabad again on the promise of marriage stands proved beyond shadows of all resonable doubts, the sole question which now remains to be discussed is as to what is the effect of consent of the prosecutrix in all the aforesaid acts of the accused. Clearly when prosecutrix was minor and was even below the age of 16 years, her consent becomes completely immaterial and is of no consequnce. The prosecutrix clearly stated that accused induced her away on the promise of marriage. She also stated that accused established sexual relations with her repeatedly on the promise of marriage. This inducement also clearly explains as to why prosecutrix did not object to the acts of the accused or did not raise hue and cry when accused established physical relations with her.
36. In view of my aforesaid discussion, I am thus of the considered opinion that prosecution has been clearly successful in proving its case beyond shadows of all reasonable doubts against accused for the offences U/s. 363/366/376 IPC and also for the offence U/s 6 POCSO Act 2012. I accordingly convict him thereunder.
ANNOUNCED IN THE OPEN COURT (BHARAT PARASHAR)
TODAY i.e. 30.04.2014 Additional Sessions Judge-01
New Delhi District
Patiala House Courts, New Delhi
State v. Aniket Vishnoi @ Monu @ Ariyan Page 10 of 10