Delhi District Court
State vs . Mohit on 12 December, 2014
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 111/13 )
Unique ID case No. 02404R0209702013
State Vs. Mohit
FIR No. : 295/13
U/s : 366/376(I)/506 IPC &
u/s. : 4 of POCSO Act
P.S. : Sultanpuri
State Vs. Mohit
s/o Sh. Jeevan Lal,
r/o B197, Meer Vihar,
Jain Colony, Mubarakpur Dabas,
Delhi.
Date of institution of case 27.07.2013
Date on which, judgment has been reserved 12.12.2014
Date of pronouncement of judgment - 12.12.2014
JUDGMENT:
1 Briefly stated the case of the prosecution is that a call of quarrel was received at PS Sultan Puri, which was registered vide DD No. 64 A and was assigned to SI Sonu Sharma, who proceeded to the spot with Ct. Shabbir and L/Ct. Sarita. On reaching the spot i.e. house No.193, gali No. 1, Rattan Vihar, IO SI Sonu Sharma made SC No. 111/13 State Vs. Mohit Page Nos. 1 of 30 2 inquiry and came to know that the matter pertained to rape of a minor girl aged about 17 years. He passed on this information to PS Sultan Puri vide DD no. 84B and thereafter, W/SI Neeraj was deputed to inquire into the matter. The W/SI Neeraj also proceeded to the spot and met victim A, who gave her statement Ex.PW5/A, wherein, she stated that she was a student of 8th class and that she had become acquainted with accused about 1 ½ months ago (1 ½ months prior to filing of the complaint). She further stated that about one month ago accused had enticed her and taken her to park near Maszid of F6 Block at about 5:00 PM and committed rape upon her and further threatened her that if she disclosed about it to anyone, he would kill her and her family members since he had already committed murder of two persons earlier. The victim stated that out of fear, she did not disclose about incident to any one. She further deposed that about 15 days ago, accused threatened her and took her to a restaurant at Kirari near Lal Mandir and again committed rape upon her and that about one week ago also, accused came to the house of victim at about 2.30 at midnight and threatened to kill her and thereafter, committed rape upon her. The victim then stated that on 06.05.13 at about 3.00 pm when she was going to take medicine from a doctor at Shani Bazar Market, accused came from behind and caught hold of her hand and asked her to accompany him. The victim got scared. The mother of the victim, who was accompanying the victim, tried to free the victim from the accused but accused threatened the mother of victim and asked her to send the victim with him failing which he would injure her with knife. The victim thereafter returned back to her home with her mother, however, out of fear she did not disclose anything to her mother. On 06.05.13 itself, accused Mohit again went to the house of victim at about 5.00 pm and threatened to kill her family members in the event they failed to solemnize the marriage of victim SC No. 111/13 State Vs. Mohit Page Nos. 2 of 30 3 with accused. When the family members of victim raised alarm, accused ran away from there. Thereafter, on repeated queries by her mother victim informed her about previous acts of accused. The mother of victim gave a call at 100 number, pursuant to which the police reached at spot.
2 After recording the complaint of the victim, the IO sent the victim for her medical examination to the hospital and on basis of the aforesaid statement of victim as well as her MLC got, the present case registered against the accused. 3 During the course of investigations, IO inspected the spot and prepared the site plan at pointing of the victim A. The accused was arrested on 07.05.13 upon identification of the victim and thereafter, he too was sent for medical examination to the hospital. After the medical examination of accused, the exhibits collected from him by the concerned doctor were also seized by the IO. On 07.05.13 IO produced the victim before Ld. MM for her statement u/s 164 Cr.PC and after the statement of victim was recorded, she obtained copy thereof. During the course of further investigation IO got the exhibits of the case sent to FSL. After completing investigation, chargesheet was prepared and filed in this court by the IO.
4 After hearing arguments, charge for the offence under Section 363/366/376 (2)(n)/506 IPC was framed against the accused on 31.07.2013. On 22.07.2014 an amended charge for the offence under Section 363/366/506 IPC and u/s. 5(l) of POCSO Act punishable u/s. 6 of POCSO Act, 2012 was framed against the accused and an alternative charge for the offence under Section 376(2)(n) IPC was also framed against SC No. 111/13 State Vs. Mohit Page Nos. 3 of 30 4 the accused. However, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
5 In order to prove its case prosecution has examined 15 witnesses. 6 The PW1, HC Kailash Chand, was posted as Duty Officer at P.S. Sultanpuri on the intervening night of 06/07.05.2013. He deposed about registration of FIR of the present case. He proved the endorsement made by him on rukka as Ex.PW1/A and computerized copy of FIR as Ex.PW1/B. 7 The PW2, Sh. Vipin Kharab, learned MM, had conducted the proceedings u/s.164 CrPC on 07.05.2013 and proved the same as Ex.PW2/A to Ex.PW2/D i.e. the application filed by IO for recording of statement of victim child u/s.164 Cr.P.C as Ex.PW2/A ; statement of victim child u/s.164 CrPC as Ex.PW2/B ; the certificate given by PW2 as Ex.PW2/C and application for supply of copy of said statement, filed by IO, as Ex. PW2/D. 8 The PW3, Sh. Jeet Bahadur Bhatt, Principal, produced original record from Nigam Pratibha Vidyalaya, Prem Nagar, Kirari, Delhi, wherein the victim child A had been admitted in third class on the basis of admission form and affidavit submitted by mother of the child. He proved the copy of the said admission form and affidavit as Ex.PW3/A and Ex.PW3/B respectively ; the photocopy of relevant entry in the admission register was proved as Ex.PW3/C and the certificate issued by the school regarding the date of birth of victim child A, wherein her date of birth was mentioned as SC No. 111/13 State Vs. Mohit Page Nos. 4 of 30 5 21.10.1997, was proved as Ex.PW3/D. 9 During the crossexamination by learned amicus curie, the PW3 deposed that he could not tell as to who filled the admission form of the child A as he was not Principal of the school at that time and that no age proof of the child i.e. MCD birth certificate, etc. was furnished by the parents of the child at the time of her admission in the school. He admitted that he could not state if the date of birth of the child mentioned by her mother was correct or not. He volunteered to state that the date of birth of any child was mentioned in the school record on the basis of documents and / or affidavit filed by the parents of the child.
10 The PW4, Smt. Sunita, is the mother of the victim child A. She deposed that on the day of the incident, she was going with her daughter A (victim) to doctor's clinic at Shani Bazar Road at about 3:00 PM and that on the way to the clinic, accused Mohit stopped their way and caught hold of her daughter by hand and asked her to accompany him. The PW4 further stated that accused also asked her (PW4) to let her daughter go with him and that PW4 got perplexed and shocked for a while and thereafter she (PW4) tried to get her daughter released from accused. The PW4 further deposed that when she objected to the conduct of the accused, he showed a knife to her and thereafter PW4 raised alarm, hearing which public persons collected at the spot and accused ran away from there while PW4 returned back to her home with her daughter.
11 The PW4 then deposed that on the same day at about 5:00 PM, accused SC No. 111/13 State Vs. Mohit Page Nos. 5 of 30 6 came to their house and after entering her house, accused asked PW4 to get her daughter A married to him and threatened that in case she (PW4) failed to do so, he would kill her and her family members and that on hearing this PW4 came out of her house and raised alarm, on which public persons from neighbourhood gathered there. The accused again ran away from the spot. The PW4 then stated that some public persons called the police and when the police came there it made inquiry from the PW4 as well as her daughter A and also recorded statement of child A after which her daughter was taken for medical examination. The PW4 further stated that her daughter A told her in hospital that accused had committed galatkam with her 7 days ago also and that she (PW4) had stated this fact to the doctor who had examined her daughter A. The PW4 then deposed about giving permission to the concerned doctor for gynecological examination of victim A and about accompanying victim A and police officials to a park near Sukhi Nahar where the police officials prepared site plan of the place where accused had done wrong act with her daughter A. 12 During her crossexamination, the PW4 stated that police had not recorded her statement but immediately thereafter she clarified that police had made inquiry from her and had reduced the same into writing. She, however, could not remember if her statement had been read over to her by the police officials or not. The PW4 also stated that her daughter A was suffering from high fever on the day she was being taken to the doctor. She, however, stated that she had not told this fact either to the police or the doctor who had prepared MLC of victim A. 13 During her further crossexamination, the PW4 stated that she was SC No. 111/13 State Vs. Mohit Page Nos. 6 of 30 7 permanent resident of District Danbhanga, Bihar and that she had come to Delhi about 12 - 13 years ago and that her married had been solemnized at her native State of Bihar. She further stated that victim A was her eldest child and that when she (PW4) had come to Delhi when her daughter i.e. the victim was about 7 - 8 years old. She also stated that victim A was born at her inlaws house and that she had not got registered the birth of her daughter either with the Municipal authority or with village chowkidar. The PW4 denied that her daughter used to attend school at their native place at Bihar. She admitted that her marriage had taken place about 21 - 22 years back. She also stated that her daughter A was born 2 - 3 years after her marriage. 14 During her further crossexamination PW4 stated that her daughter was admitted in a government school in class third at Prem Nagar and that she studied for two years in said school at Prem Nagar and thereafter was admitted in government school at Nithari in class sixth where she studied upto eighth class. The PW4 denied that her daughter was got admitted in the school after 3 - 4 years of her coming to Delhi. She clarified that her daughter A was admitted in government school at Prem Nagar after 2 - 3 years of their coming to Delhi. The PW4 denied that she had understated age of her daughter A to enable her to get admission in the school or that her daughter was above 18 years of age at the time of incident or that she was having consensual relations with accused of her own sweet will or that because of this reason neither she (PW4) nor her daughter had made a complaint or told the doctor, at the time of medical examination of child A, about alleged previous sexual assaults by accused.
SC No. 111/13 State Vs. Mohit Page Nos. 7 of 30 8 15 From the further crossexamination of PW4, it is brought out that she had not stated in her statement Ex.PW4/DA to the police that the accused had stopped their way and had further not told that when she objected to the conduct of the accused, he showed her (PW4) a knife.
16 The PW4 was questioned further regarding the incident at Shani Bazar. The PW4 termed it correct that there was a police assistance booth and police barricades on the Shani Bazaar Road near the place of incident. The PW4 also stated that she had not told to the police officials at the police assistance booth, after the incident, that the accused had caught hold of hand of her daughter while they were going to doctor's clinic at Shani Bazaar Road and had asked her daughter to accompany him. The PW4, however, denied that she had not told about the incident to the police officials as no such incident had ever taken place. The PW4 could not remember where she had put her thumb impression on various papers and documents prepared by the police. She termed it correct that family of accused had left the house situated in the gali where she (PW4) and her family resided, three months prior to the incident dated 06.05.2013. The PW4 denied that her daughter A used to talk frequently from mobile phone of AIRTEL company with last digits 38 on the mobile phone No. 8447909170 belonging to younger brother of accused but in use by the accused. The PW4 denied that accused had not visited their house on 06.05.2013 at 5:00 PM.
17 The PW5, A is the victim child in the present case. She deposed that about one or one and a half months prior to the date of incident, she was studying in SC No. 111/13 State Vs. Mohit Page Nos. 8 of 30 9 class eighth in government school at Village Nithari and that during that period, the road from Nithari Village was under construction and that PW5 used Mubarakpur Road to commute to and fro from her house to the school. She further deposed that accused Mohit used to follow her on the said route and that one day when she (PW5) was going back to her home from her school, accused Mohit met her on the way and asked her to accompany him to the restaurant of his friend and that though PW5 refused, accused took her to said restaurant forcibly and that on reaching there, he took her to a room constructed on one side and committed rape upon her. The PW5 then deposed that she managed to return back to her home but did not tell anything about the incident to her mother or anyone else out of fear, however, she stopped going to the school after that incident. The PW5 further deposed that one day accused came to her house at night at about 2:00 - 2:30 AM and took her forcibly to the bathroom and raped her and further threatened her not to disclose about the incident to anyone or he would kill her (PW5) and her family.
18 The PW5 also mentioned about a previous incident which had taken place prior to the two incidents told by her. She deposed that the accused took her forcibly to an isolated park at FBlock at about 5:00 PM and that he had committed rape upon her for the first time in the said park. The PW5 then mentioned about the incident of 06.05.2013 when at about 3:00 PM, she was going with her mother to take medicine from a doctor, whose clinic was situated at Shani Bazaar Road. She deposed that on that day, accused came from behind and caught hold of her hand and asked her to accompany him and that her mother (mother of PW5) tried to get her released from the grip of the accused, however, accused threatened the mother of PW5 by showing her a SC No. 111/13 State Vs. Mohit Page Nos. 9 of 30 10 knife and that public persons gathered at the spot due to which accused fled away from there and that thereafter PW5 and her mother returned back to their home. 19 The PW5 further deposed that on the same day i.e. 06.05.2013 at about 5:00 PM, accused came to her house, entered inside the house, and asked her mother (mother of PW5) to marry PW5 with accused, failing which he threatened to kill all the family members of PW5. The PW5 further deposed that her mother raised alarm due to which persons from neighbourhood collected there and that thereafter accused ran away from the spot. The PW5 also stated that someone out of the public persons gathered at the spot, called the police at 100 number and that when the police officials came there, her statement Ex.PW5/A was recorded and that thereafter she (PW5) was taken to SGM Hospital for her medical examination and that she was examined vide MLC Ex.PW4/A. The PW5 further deposed about pointing out the place in the park of FBlock, where accused had committed rape upon her, to the IO, who prepared site plan Ex.PW5/B at her pointing out. The PW5 also deposed about pointing out the other places where the accused had raped her i.e. the bathroom and the restaurant pursuant to which site plan Ex.PW5/C and Ex.PW5/D respectively were prepared by the IO. The PW5 then deposed about the arrest of the accused on 07.05.2013 from his old house bearing No.193, Gali No.3, and proved his arrest memo as Ex.PW5/E and personal search memo as Ex.PW5/F. 20 The PW5 next deposed about recording of her statement u/s. 164 CrPC by learned MM and proved the same as Ex.PW2/B. She further alleged that the family members of the accused were still threatening her and her mother not to depose SC No. 111/13 State Vs. Mohit Page Nos. 10 of 30 11 against the accused in the Court.
21 During her crossexamination, the PW5 termed it correct that she had signed Ex.PW5/A, Ex.PW5/B, Ex.PW5/D, Ex.PW5/E and Ex.PW5/F at PS Sultanpuri. She, however, denied that she and her mother had signed / thumb impressioned blank papers at PS. From the further crossexamination of PW5 it is brought out that she had not stated in her statement Ex.PW5/A to the police that during that period, the road from Nithari Village was under construction and that she used to go to school and come back to home via Mubarakpur Road or that accused Mohit used to follow her on that route with his friends.
22 She had also not stated in said statement that one day when she was going back home from her school, accused Mohit met her on the way and asked her to accompany him to the restaurant of his friend to which she refused but accused insisted upon her to go there. She had further not stated in said statement that she managed to come back home but did not tell anything about the incident to her mother or anyone else out of fear and that she stopped going to the school thereafter. She had also not stated in said statement that accused had forcibly taken her to bathroom and there also he committed rape upon her and threatened her not to disclose about the incident to anyone otherwise he would kill her and her family. She had also not stated in said statement that accused had forcibly taken her to a park at FBlock in the evening or that there was no one in the park due to summer season or that as such it was an isolated place at about 5:00 PM. She had also not stated in her statement Ex.PW5/A that accused threatened her mother (mother of PW5) by showing a knife or that public SC No. 111/13 State Vs. Mohit Page Nos. 11 of 30 12 persons had gathered at the spot and due to which accused fled away from there. 23 Similar modifications were brought out in the statement Ex.PW2/B u/s. 164 CrPC made by the victim to learned MM. The PW5 denied that she was having a consensual relationship with the accused or that she had falsely implicated the accused in the present case, at the instance of her family members, as the accused belonged to a different caste. The PW5 also denied that she was in regular contact with the accused on mobile phone No.8447909170 belonging to the brother of the accused. The PW5 further denied that she was above 18 years of age at the time of the incident. 24 During her further crossexamination, the PW5 denied that the park at F Block, remained crowded with children from nearby locality after 4:00 PM. She showed her lack of knowledge about existence of a MCD office and a milk dairy near the park. She could also not state if the said park had four entry / exist points / gates. The PW5 was also not aware if gardeners / care takers remained present in the park throughout the day. As regards the restaurant PW5 denied that the restaurant where accused is alleged to have committed rape upon her was situated in a market place. She, however, expressed her lack of knowledge if there was a shop of Aggarwal Electronics adjacent to the restaurant and if a timber godown was also situated near the restaurant. The PW5 admitted that she had not raised any alarm when accused took her to the park and the restaurant. She volunteered to state that she did not raise alarm out of fear. The PW5 termed it correct that both the park and the restaurant were situated at a considerable distance from her house which was not reachable by foot. The PW5 denied that she used to roam around with the accused on a scooty belonging to the SC No. 111/13 State Vs. Mohit Page Nos. 12 of 30 13 brother of the accused. The PW5 was also questioned regarding the topography of her house. The PW5 termed it correct that nobody could enter their house and reach the bathroom if the main gate of their house was bolted from inside. She further termed it correct that they always slept after bolting the main door of the house from inside. 25 The PW6, HC Ganga Saran, was posted as MHCM of PS Sultanpuri at the relevant time. He produced the original register No.19 and 21 and proved the relevant entries regarding deposit of the case property and sending the same to FSL Rohini as Ex.PW6/A to Ex.PW6/C. 26 During the crossexamination by learned amicus curie, the PW6 denied that the entries were ante dated and ante timed or that he had manipulated the entries subsequently at the instance of IO to suit her case.
27 The PW7, W/Ct. Savita, deposed that on 06.05.2013, at about 11.00 p.m she was informed by the duty officer control room, Pitam Pura that a rape case had been reported from PS Sultan Puri and that she reached PS Sultan Puri and from there she went to the place of incident at H.No193, Sultan Puri, where SI Sonu and Ct.Shabir were already present with the victim and her mother. She then deposed that in the meanwhile IO W/SI Neeraj also reached there and that IO W/SI Neeraj made enquiries from the victim child and recorded her statement and thereafter IO prepared rukka and handed it over to Ct. Shabir for registration of FIR. The PW7 further deposed that she had gone with the IO, victim child and her mother to SGM Hospital for the medical examination of the victim child and that after medical examination, IO obtained MLC of SC No. 111/13 State Vs. Mohit Page Nos. 13 of 30 14 the victim and that IO was also handed over one sealed sexual assault kit by the concerned doctor which was taken into possession by the IO vide memo Ex.PW7/A. 28 During the crossexamination by learned amicus curie, the PW7 admitted that PCR officials and many public persons from the neighbourhood were present at the spot when she (PW7) reached there. The PW7 could not remember if SI Sonu or lady IO, who had reached the spot subsequently, had made any enquiries from the public persons present at the spot or not.
29 The PW8, Ct. Shabeer Khan, had joined the investigation of the case with IO SI Sonu. He deposed that on 06.05.2013, DD No.84 B was received by SI Sonu regarding a quarrel with a lady and that he (PW8) along with SI Sonu reached at the spot i.e. house No.193, Gali No.1, Rattan Vihar, Sultanpuri, Delhi where they found that the matter was of rape case with a minor girl. He then deposed that SI Sonu informed about this fact to the PS at about 11:00 PM and that thereafter L/Ct. Savita and W/SI Neeraj also reached the spot. He further deposed that W/SI Neeraj made inquiries from the victim and recorded the statement of the victim, made her endorsement and prepared rukka thereupon and handed it over to PW8 for registration of FIR. The PW8 further deposed that he and SI Sonu went to PS and took Manish, brother of accused Mohit, who had already been apprehended by public persons being the brother of accused Mohit, with them to PS and that PW8 got the case FIR registered. He further deposed that after registration of FIR, he (PW8) along with SI Sonu left for SGM Hospital leaving Manish with the duty officer in the PS and that he handed over the copy of FIR and original rukka to IO W/SI Neeraj. The PW8 further deposed that thereafter SC No. 111/13 State Vs. Mohit Page Nos. 14 of 30 15 the victim child led PW8, IO SI Neeraj, SI Sonu and mother of victim child to F6 Block Park, Sultanpuri, where IO prepared site plan at her instance and that they went to gali No.3, house No. 300, Rattan Vihar, where the accused Mohit was stated to be residing earlier and that accused was apprehended, at the instance of victim, and thereafter he was interrogated. The PW8 further deposed that thereafter accused was brought to house No.193, Gali No.3, Sultanpuri, Delhi, where he was arrested vide his arrest memo Ex.PW5/E and was personally searched vide personal search memo Ex.PW5/F and that accused made his disclosure statement vide memo Ex.PW8/A. The PW8 further deposed that thereafter he (PW8) along with SI Sonu brought accused Mohit to PS and that the information of arrest of accused Mohit was given to his brother and father.
30 During the crossexamination by learned amicus curie, the PW8 deposed that they reached at the spot at about 11:00 PM. He admitted that place of reporting of incident was a thickly populated residential area and that the lanes in the area were of width of 5 - 5 ½ ft. only and that the size of the plot and houses constructed thereupon was 25 sq. yards only and that many public persons from neighbourhood had collected at the spot when they reached there.
31 During further crossexamination, the PW8 deposed that SI Sonu had made inquiries from the public persons, who had apprehended Manish, brother of accused Mohit, at the spot but was not aware if SI Sonu had recorded the statement of said public persons or not. The PW8 further deposed that he was aware that IO had gone to the spot to conduct inquiry regarding call of quarrel between some women. SC No. 111/13 State Vs. Mohit Page Nos. 15 of 30 16 When a specific question was put to the witness as to whether the public persons present at the spot had told him the names of the ladies between whom quarrel had taken place, the witness stated that on inquiry the call did not turn out to be that of a quarrel between the ladies.
32 The PW8 termed it correct that he had signed various documents and memos at PS Sultanpuri as and when they were drawn up and that IO had prepared site plan of the house from where accused was apprehended.
33 The PW9, Dr. Bina, was deputed on behalf of Dr. Fazil, who had conducted the general examination of the patient - victim vide MLC Ex.PW4/A and made his observations thereupon and deposed regarding the same. 34 The PW10, Dr. M.Das, proved the MLC of accused as Ex.PW10/A by identifying the handwriting and signatures of Dr. Dushyant on it. He also proved the opinion regarding the potency of the accused given thereupon by Dr. Dushyant. 35 The PW11, Ct. Nagaraj K., had taken the exhibits of the case to FSL Rohini vide RC No.3706/2013 and deposed regarding the same.
36 The PW12, W/SI Rakhi, is a formal investigating officer as she had only filed the charge sheet in the present case in the Court and deposed regarding the same. 37 The PW13, Imtiyaz Khan, is the brother of one Ashfaque, employer of SC No. 111/13 State Vs. Mohit Page Nos. 16 of 30 17 accused. He deposed that his brother Asfaque had employed accused at their chicken shop about 10 / 15 days prior to his marriage (marriage of Asfaque) and that one day accused Mohit brought one girl with him at about 1:30 - 2:00 in the noon, in the absence of brother of PW13, and at that time he asked PW13 to give him permission to have lunch inside the hotel and that PW13 allowed him as his brother (brother of PW13) had told PW13 not to say anything to the accused. The PW13 stated that he had asked accused as to who was the girl who was with him and that accused told PW13 that she was his relative ('family se hai') and that he (PW13) did not know what happened thereafter.
38 During his crossexamination, the PW13 deposed that their hotel opened at 12:30 Noon and remained open till 11:30 PM and that many persons visited their hotel for food and that when accused came there with a girl, there was only one customer in the hotel. He further that there were three employees in their hotel at that time.
39 The PW14, W/SI Neeraj, is the main investigating officer in the case and she deposed regarding the investigations carried out by her and the documents prepared by her during the course of investigations. She deposed that on 06.05.2013 at about 10:45 PM, she received an information from duty officer vide DD No.84B that the information about quarrel, which was received vide DD No.64A, was not of quarrel but it was of a rape case. She further deposed that initially DD No.64 A was entrusted to SI Sonu Ram, however, when the case of rape was reported vide DD No.84B same was entrusted to her. She then deposed that she reached at house No.193, Gali No.1, SC No. 111/13 State Vs. Mohit Page Nos. 17 of 30 18 Rattan Vihar, where SI Sonu, Ct. Savita and Ct. Sabeer, Smt. Sunita and her daughter i.e. the victim child A met her and that she made inquiry from the victim child A and recorded her statement Ex.PW5/A, and on the basis of her statement, PW14 made endorsement and prepared rukka Ex.PW14/A and handed it over to Ct. Sabeer for registration of case FIR.
40 The PW14 further deposed that Manish, brother of accused, was also found present at the spot, as he had been apprehended by the public persons and that said Manish was also sent to police station along with SI Sonu Ram and Ct. Sabeer, whereas she herself took the victim child and her mother to Sanjay Gandhi Memorial Hospital for medical examination of the victim child and got conducted the medical examination of the victim child vide MLC Ex.PW4/A, which was handed over to PW14 by the concerned doctor along with samples taken from the victim. The PW14 further deposed that she seized the sealed samples and sample seal vide seizure memo Ex. PW7/A. She further deposed that she recorded the statement of lady Ct. Savita and that in the meanwhile, SI Sonu and Ct. Sabeer also reached the hospital and handed over original rukka and copy of FIR to her (PW14). The PW14 further deposed that thereafter, she along with victim, her mother, SI Sonu Ram and Ct. Sabeer reached the park at F6 Block, Sultan Puri, Delhi, where PW14 prepared the site plan Ex.PW5/B at the instance of victim child, and that from there, they went to Rattan Vihar, where the victim had been residing earlier as tenant along with her family and there, she (PW14) prepared the site plan Ex. PW5/C, at the instance of victim child and that from there, victim led them to the house bearing No. 3/393, Rattan Vihar, where accused used to reside previously and from there, accused Mohit was apprehended and arrested vide SC No. 111/13 State Vs. Mohit Page Nos. 18 of 30 19 arrest memo Ex. PW5/E and thereafter was personally searched vide memo Ex. PW5/F, and that after interrogation, PW14 recorded the disclosure statement of the accused vide Ex. PW8/A. The PW14 further deposed that thereafter, she sent the accused to PS along with Ct. Sabeer and Ct. Sonu Ram and that PW14 went with the victim child and her mother to Kirari, where victim pointed out to a dhaba and stated that accused had taken her there also and had committed rape upon her, but at that time, the aforesaid dhaba was closed and on inquiry, it was revealed that the persons working in the dhaba had gone to their native village for attending some marriage and that PW14 prepared site plan of the said dhaba i.e. Ex.PW5/D at the instance of the victim and that from there, they came to the PS. The PW14 further deposed that she sent the accused in the custody of Ct. Sabeer, to SGM Hospital for his medical examination and got him medically examined vide MLC Ex.PW10/A and that after medical examination of accused, the concerned doctor handed over the samples taken from accused, duly sealed with the seal of SGMH, Mangol Puri, along with one sample seal which she (PW14) seized vide seizure memo Ex. PW14/A. 41 The PW14 further deposed about getting the statement of victim recorded u/s. 164 CrPC and about producing the victim child before concerned CWC on 08.05.2013 and proved the report of CWC as Ex.PW14/B. 42 The PW14 further deposed about sending exhibits of the case to FSL Rohini and about examining the owner of dhaba at Kirari, that had been pointed out by the victim.
SC No. 111/13 State Vs. Mohit Page Nos. 19 of 30 20 43 During the crossexamination by learned amicus curie, the PW14 deposed that she reached at the spot at about 11.30 pm. She admitted that the spot was situated in densely populated area and that many persons from locality were found gathered at the spot and though she had made inquiries from the public persons collected at the spot. She did not record their statements as said persons left without disclosing anything about the incident. The PW14 admitted that Shani Bazar Market was a heavily crowded area.
44 During the further crossexamination, the PW14 deposed that she had reached at the park of F6 block, Sultan Puri at 4.00/4.30 am. She termed it correct that the park of F6 Block, Sultan Puri, was surrounded by residential complex as well as shops and that guard and gardeners were posted in the said park. She volunteered to state that no guard or gardener met her (PW14) when she went there. 45 During her further crossexamination, the PW14 deposed that she had thoroughly examined the house at Rattan Vihar, where victim had been residing earlier with her family, as tenant. She termed it correct that there was only one entrance door to the said house and that the height of the outer wall was about 6/7 feet and that the door of the bathroom opened towards the wall of some other house. 46 The PW14 denied that all the memos and documents pertaining to accused were prepared subsequently in the PS. She also denied that during the course of inquiry and investigations, she became aware of the fact that the victim had left her house on several occasions with some boys, without informing her mother. SC No. 111/13 State Vs. Mohit Page Nos. 20 of 30 21 47 The PW15, Dr. Monika Chopra, was deputed on behalf of Dr. Monika Behl, who had conducted gynecological examination of the victim and deposed regarding the same.
48 After closing of prosecution evidence, statement of accused Mohit was recorded u/s 313 Cr.P.C. Accused stated that he is innocent and had been falsely implicated in this case by the police at the instance of mother of the victim. He further stated that the victim was having a love affair with him and that she wanted to marry him and that the victim used to roam around with the accused of her own sweet will and consent. The accused declined to lead evidence in his defence. 49 Arguments have been addressed by learned amicus curie for the accused as well as learned Additional PP for the State.
50 Learned Additional PP has contended that the prosecution has succeeded in proving its case against the accused beyond reasonable doubt and has prayed that accused be convicted for the charged offences.
51 On the other hand, learned amicus curie has contended that prosecution has failed to prove its case against the accused beyond reasonable doubt. It is also contended that as per the case of the prosecution DD No.64 B regarding quarrel was received at PS Sultanpuri at 5:00 PM in the first instance but the same has been deliberately not produced before the Court and that the subsequent DD No.84 B SC No. 111/13 State Vs. Mohit Page Nos. 21 of 30 22 regarding rape was registered at 9:02 PM after considerable delay and this creates a doubt that the prosecution case was fabricated at the instance of the parents of the victim. It is also contended that there is considerable discrepancy in the complaint, statement u/s. 164 CrPC and the testimony of the prosecutrix. The discrepancy in the testimony of the prosecutrix and that of her mother has also been pointed out since it is claimed that mother of the prosecutrix had mentioned only about one incident of rape which is alleged to have taken place seven days prior to 06.05.2013. It is then contended that the statement of the mother of the prosecutrix contradicts the claim of the prosecution that the victim was less than 18 years of age as on the date of the commission of the offence and that the mother of the prosecutrix had mentioned the age of victim by approximation at the time of her admission in the school and that the prosecutrix was above 18 years of age at the time of commission of offence. It is accordingly, prayed that accused be acquitted of the charged offecnes. 52 I have heard the arguments put forward by ld. Addl. PP as well as 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.
53 In the present case, accused is alleged to have kidnapped a minor girl i.e. victim A, aged about 17 years, from the lawful guardianship of her parents, with intention to force her to have illicit intercourse with the accused. He is further alleged to have committed repeated penetrative sexual assault upon the victim child and of having threatened the victim child and her mother of dire consequences in case victim was not SC No. 111/13 State Vs. Mohit Page Nos. 22 of 30 23 married with the accused.
54 The first issue which arises for consideration is whether victim A was 'a child' less than 18 years of age as on the date of commission of offence. In order to prove that the victim was less than 18 years of age, the prosecution has examined PW3, Principal of the school wherein the victim was admitted in third class. The PW3 Sh. Jeet Bahadur Bhatt produced the original record of the school and proved the photocopies of the admission form and affidavit submitted by mother of the child as Ex.PW3/A and Ex.PW3/B respectively, copy of the admission register as Ex.PW3/C and the certificate issued by the school as Ex.PW3/D. As per the record produced by PW3 the date of birth of the victim is 21.10.1997. From the crossexamination of PW3 it is brought out that no age proof of the child A was taken by the school authorities at the time of her admission in the school.
55 In order to corroborate the record produced by PW3, the prosecution has examined mother of the victim A as PW4. The PW4, however, could not tell the exact date of birth of the victim A. She even could not state the age of her daughter at the time of the incident.
56 During her crossexamination, the PW4 was put specific questions regarding the age of victim A. From the crossexamination of PW4 it is brought out that she was married about 21 - 22 years ago and that her daughter i.e. victim child A was her eldest daughter, who was born 2 / 3 years after her marriage. If the statement made by PW4 is taken to be correct then the age of the victim A comes to be 19 - 20 SC No. 111/13 State Vs. Mohit Page Nos. 23 of 30 24 years at the time of the incident. The PW4 could not state as to on what basis she had mentioned the date of birth of child A as 21.10.1997 in the school record. As rightly pointed out by learned amicus curie a doubt is created regarding the date of birth of the victim A mentioned in the school record in view of the testimony of PW4, Smt. Sunita, mother of the victim A. This is more so as prosecution failed to prove as to on what basis the date of birth of the victim was mentioned in the school record. Admittedly PW4 Smt. Sunita is illiterate and she has stated so in her testimony recorded before the Court. The admission form Ex.PW3/A is duly filled in Hindi language whereas affidavit Ex.PW3/B is in English language. Since PW4 Smt. Sunita is illiterate, the prosecution was required to prove as to who had filled up the particulars given in admission form Ex.PW3/A and affidavit Ex.PW3/B, however, neither PW3 Sh. Jeet Bahadur Bhatt, Principal, nor PW4 Smt. Sunita have been examined to clarify as to who had filled in the particulars given in these two documents. Since the prosecution has failed to prove the basis on which the date of birth of the victim has been mentioned in the school record, not much reliance can be placed on it to draw conclusion that the date of birth of the victim is 21.10.1997 or that she was aged about 16 years at the time of the incident. I am supported in my view in the case of Birdi Mal Singhavi vs. Anand Purohit, 1988 Supp. SCC 601, wherein it was held that no evidentiary value can be given to Date of Birth entry in absence of material on which entry is made. 57 Since the prosecution has failed to prove that the victim A was less than 18 years of age at the time of first incident of commission of offence i.e. 1 ½ months prior to 06.05.2013 when the matter was reported to the police, the provisions of POCSO Act would not be applicable in the present case.
SC No. 111/13 State Vs. Mohit Page Nos. 24 of 30 25 58 The next issue which arises for consideration is that whether accused Mohit repeatedly raped victim A, without her consent and wishes, as stated by her. It is noteworthy that the FIR in the present case has been registered on complaint Ex.PW5/A made by the victim A wherein she has mentioned about three incidents of alleged rape by the accused. The first incident is stated to have taken place about one month prior to 06.05.2013. The victim has stated that on that day at about 5:00 PM, accused enticed the victim A to go with him to park near F6 Block Masjid and thereafter he committed rape upon her. The second incident of alleged rape is stated to have taken place about 15 days prior to 06.05.2013 on which date accused is stated to have taken victim A to a restaurant near Lal Mandir and committed rape upon her. The third incident of alleged rape is stated to have taken place about one week prior to 06.05.2013 when accused went to the house of the victim A at about 2:30 AM and committed rape upon her.
59 The statement of victim u/s. 164 CrPC i.e. Ex.PW2/B was recorded on 07.05.2013. In the said statement also victim has mentioned about three incidents of alleged rape by the accused. The narrations of these incidents, however, is considerably different. The first incident is stated to have taken place about one month prior to 06.05.2013 when the victim was going to bank with her younger sister. It is stated that on that day accused and another boy stopped the victim A and her sister and while the other boy started playing with the younger sister of the victim A, the accused took victim A forcibly to a park and committed rape upon her. The second incident is stated to have taken place about 15 days prior to 06.05.2013. The victim A claims that SC No. 111/13 State Vs. Mohit Page Nos. 25 of 30 26 on that day accused had hidden himself in the bathroom of her house and when she went to bathroom at night, she found him sitting inside and was raped by the accused thereafter. The third incident is stated to have taken place about one week prior to 06.05.2013. The victim A alleged that on that day when she was returning back from school, accused stopped her on the way and took her to a restaurant of his friend and committed rape upon her.
60 The victim appeared before the Court on 22.10.2013 for her testimony and was examined as PW5. The victim A again deposed about three incidents of rape. The first incident is stated to have taken place in park of FBlock at about 5:00 PM. The second incident is stated to have taken place when victim was returning back from school. It is alleged that on that day accused took her forcibly to a restaurant, which she claimed was of his friend, and committed rape upon her in a room constructed on one side of the said restaurant. The third incident is stated to have taken place at about 2:00 2:30 AM when accused went to house of the victim and took victim inside the bathroom of the house and raped her.
61 From abovementioned statements of the victim A i.e. her complaint Ex.PW5/A, her statement u/s. 164 CrPC i.e. Ex.PW2/B and her testimony before Court as PW5, it is seen that there are considerable inconsistencies and discrepancies in the narrations of the victim qua the alleged incidents of rape which make it difficult to rely upon her testimony alone to draw conclusion of guilt of the accused. Thus it is necessary to look for corroboration of the testimony of the victim from testimony of other witnesses examined by the prosecution. It is seen from the record that prosecution has SC No. 111/13 State Vs. Mohit Page Nos. 26 of 30 27 examined Smt. Sunita, mother of the victim, as PW4. As per the case of the prosecution, when the accused stopped victim, on her way to doctor's clinic at Shani Bazar, and also followed her back to her home on the same day i.e. 06.05.2013, the victim told about the alleged acts of rape to her mother Smt. Sunita. This witness i.e. PW4 Smt. Sunita, however, stated that her daughter A told her that accused had committed rape upon her (did galatkam with her) about seven days ago, when they were in the hospital for medical examination of the victim A. This fact is also reflected from the MLC Ex.PW4/A of the victim. The mother of the victim does not mention about being told of any other incident of rape by the victim A. This also creates a doubt about the alleged incidents mentioned by the victim A in her different statements. 62 This is also coupled with the fact that the places where the alleged incidents are stated to have taken place are all public places, save and except the house of the victim A. The park where one of the incidents is stated to have taken place is admittedly a public park accessible to general public. The IO PW14 W/SI Neeraj has stated in her crossexamination, by learned defence counsel for accused, that the said park is not only surrounded by residential complex and shops but there is also a guard and gardener posted in the said park though she did not meet them during her visit. In these circumstances, the possibility of accused forcing himself upon the victim appears to be remote. As already observed hereinabove in her statement u/s. 164 CrPC i.e. Ex.PW2/B, victim has claimed that at the time of the said incident her younger sister was also with her and that she (younger sister of victim A) had been engaged in play by another boy, who was with the accused. Similarly, the restaurant where the accused is alleged to have taken the victim A is also a public place. Besides the customers the SC No. 111/13 State Vs. Mohit Page Nos. 27 of 30 28 other staff and the owner of the restaurant would also have been present when victim A was taken there. In these circumstances, again the possibility of accused forcing himself upon the victim A appears to be far fetched. The third place of incident is the house of the victim A and it is claimed that accused had gone there at 2:30 AM. There is, however, no explanation how the accused entered the house of victim in early hours of morning. The victim has herself stated in her testimony that she and her family always slept after bolting the main gate of the house from inside and that nobody could enter their house and / or the bathroom if the main gate of the house was bolted from inside. Thus the manner in which accused gained access inside the house of the victim A does not stand explained and the possibility of victim A having allowed entry of accused in the house herself cannot be ruled out.
63 Moreover, the victim A has admitted during her crossexamination recorded on 23.10.2013 that the park and the restaurant, where the alleged incidents of rape had taken place, were situated at considerable distance from her house and were not reachable by foot. Admittedly on these occasions accused was not armed with any weapon or object with which he could have threatened the victim A. In these circumstances, the possibility of accused having forced the victim A to go to said places with him does not appear to be feasible. Rather the fact that victim A failed to raise alarm while being taken to these places creates a doubt whether the victim A was actually 'a victim' or 'a consenting party'. Same applies for the incident which is alleged to have taken place at the residence of the victim A. There was ample opportunity for victim to have raised alarm, at least after the incident, and to have accused apprehended by her family members but she failed to do so. In these circumstances, SC No. 111/13 State Vs. Mohit Page Nos. 28 of 30 29 the possibility that everything had happened with the consent of victim A cannot be ruled out and benefit thereof would go to the accused.
64 Coming to the incident of 06.05.2013 when accused is alleged to have stopped the passage of victim and her mother, who were going to doctor's clinic at Shani Bazar, again the possibility such an incident having taken place in a crowded market with police booth and police barricade in vicinity and accused managing to run away does not inspire confidence. It is further the case of the prosecution that on 06.05.2013 itself accused went to the house of the victim A at about 5:00 PM and threatened Smt. Sunita, mother of victim A, to arrange for marriage between him and victim A. It is claimed that when Smt. Sunita raised alarm, accused managed to run away from there. It, however, does not stand explained how Manish, brother of the accused, whose presence at the spot is brought out from testimony of PW8 Ct. Shabeer Khan and PW14 W/SI Neeraj, came to be apprehended by public persons from the spot when accused himself had managed to run away. This issue is all the more relevant considering that at that time neither the accused nor any of his family members were residing in the vicinity of the house of the victim A and are stated to have shifted from said place about 1 ½ months prior to 06.05.2013. In these circumstances, the fact that copy of DD No.64B, vide which the matter was initially reported to the police, has not been produced on record by the IO also become very material. There is no explanation why DD No.64 B has been concealed from the Court and thus delay of about four hours i.e. from 5:00 PM to 9:02 PM, in reporting the matter of rape to the police also does not stand explained satisfactorily.
SC No. 111/13 State Vs. Mohit Page Nos. 29 of 30 30 65 The nutshell of foregoing discussion is that from the testimony of the victim child A as well as other material witnesses examined by it, the prosecution has miserably failed to prove that accused Mohit had kidnapped victim child A, a minor aged about 17 years, with intention to force her for illicit intercourse or knew it likely that she be forced for illicit intercourse or that after kidnapping the victim, on different dates, the accused had committed rape upon her repeatedly on many occasions even at her house, without her consent and against her wishes or that accused criminally intimidated the victim A and her mother to inflict injury on their person or to kill their family members in case victim did not marry him. Accordingly, I acquit accused Mohit of the charged offence by giving him benefit of doubt.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 12.12.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi.
SC No. 111/13 State Vs. Mohit Page Nos. 30 of 30
31
FIR No.295/2013
P.S. Sultanpuri
State Vs. Mohit
11.12.2014
Present : Ld. Additional PP for the State.
Accused produced from JC with proxy counsel.
Arguments heard.
Judgment partly dictated.
Be listed for judgment on 12.12.2014.
ASJ/NW01
Rohini/Delhi
11.12.2014
12.12.2014
Present: Ld. Additional PP for the State.
Accused produced from JC.
Vide separate judgment, announced today in the open Court, accused Mohit 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 12.12.2014 SC No. 111/13 State Vs. Mohit Page Nos. 31 of 30