Delhi District Court
State vs . 1) Jaswant Yadav @ Sonu on 21 February, 2013
1
FIR No. 306/2010
PS Adarsh Nagar
30IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST & OUTER DISTRICT : DELHI
Sessions Case No. : 60/13
Unique ID No. : 02404R0271942012
State Vs. 1) Jaswant Yadav @ Sonu
S/o Sh. Abhi Chand Yadav
R/o Village Balkua,
PS Haanta, PO Vikram Vishanpur
Distt. Deoria, U.P.
2) Abhi Chand Yadav
(Father of accused no. 1)
Sh. Late Sh. Sukhdev Yadav
R/o H. No. 5, Village Balkua
PS Rampur, Distt. Deoria, U.P.
(Discharged vide order dated 07/06/2012)
3) Shrimati
(Mother of accused no. 1)
W/o Abhi Chand
R/o Village Balkua
Tehsil Deoria, Distt. Deoria, U.P.
(Discharged vide order dated 07/06/2012)
1 of 56
2
FIR No. 306/2010
PS Adarsh Nagar
4) Ragini
(Sister of accused no. 1)
W/o Sh. Anil Yadav
R/o H. No. 61, Gothar,
Sulpur Village, Distt. Deoria, U.P.
(Discharged vide order dated 07/06/2012)
FIR No. : 306/2010
Police Station : Adarsh Nagar
Under Sections : U/S 363/366/376/34 IPC
Date of committal to session Court : 19/01/2012
Date on which judgment reserved : 18/02/2013
Date of which judgment announced : 21/02/2013
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under: That on 18/12/2010, a complaint upon the direction of the Court u/s 156 (3) Cr.P.C. for the registration of the case u/s 376/366/363/506/341/120 IPC was received in the Police Station - Adarsh 2 of 56 3 FIR No. 306/2010 PS Adarsh Nagar Nagar. The said complaint was filed before the Court of Chief Metropolitan Magistrate, Delhi by the complainant/prosecutrix (name withheld being a case u/s 376 IPC) against accused 1) Jaswant Yadav @ Sonu, 2) Abhi Chand,
3) Smt. Vimla Devi and 4) Ragini which is to the effect that, the complainant/prosecutrix is a minor girl and her date of birth is 14/05/1994 now she is pursuing 11th class in education and is law abiding and peace loving citizen. In December, 2009 when the father of the complainant/prosecutrix had gone to his native village in U.P. the accused no. 1 & 2 who were residing nearby the house of the complainant/prosecutrix and requested her to accompany them as some function is to be held at the house of the accused no. 4/Ragini. Accused no. 1 also assured the complainant/prosecutrix that the function will be held in a day and also in Delhi and after attending the function he would be back prior to the evening. As the accused no. 1 was residing near the house of the complainant/prosecturix and the father of the complainant/prosecutrix know him and having good relations, therefore, the complainant/prosecutrix ready to accompany him in good faith and went to the house of accused no. 4 on reaching there she (prosecutrix) came to know that there was no any function to be held and thereafter, on being asked the accused no. 4 told to the 3 of 56 4 FIR No. 306/2010 PS Adarsh Nagar prosecutrix that no function is to be held rather her brother who is loving the prosecutrix and also want to get marry with her and for this her entire family is interested. Accused no. 4 further told that as Sonu/accused no. 1 has no good record and is joining bad societies, but after marriage with the complainant, he will mend himself and after getting marry they will inform her father and also make agree. Accused no. 4 intentionally with malafide design fraudulently detained the complainant and thereafter, the accused no. 4 after devised the plan of kidnapping and detaining for a prolong period with a purpose to illegally perform the marriage, whereas the complainant was minor and she (complainant) also disagreed as she had been abducted by the accused no.1 fraudulently. Accused no. 4 sent both the accused no.1 and complainant/prosecutrix to Mumbai where cousin brother of accused no.1 namely Thakur Yadav was residing. The complainant/prosecutrix stayed there upto three month under threat and also sustained (beating given) by accused no. 1, the complainant/prosecutrix came under panic and also undergone huge depression under threat of accused no. 1. Accused no.1 committed rape upon her against her will and wish continuously. After three months, when the complainant/prosecutrix started saying and also showed her willingness to meet her parents the accused no. 1 gave beating and 4 of 56 5 FIR No. 306/2010 PS Adarsh Nagar thereafter took her to his native village, U.P where the accused no. 2 & 3 were residing. When the father of the complainant in search of the complainant reached to the house of the accused no. 1, 2 and 3 the accused no. 2 started saying that he can perform marriage only when the father of the complainant will pay amount of Rs. 1,50,000/. Accused no. 2 and 3 had also not allowed the complainant to meet her father, rather the accused no. 1 sold out the entire ornaments and under the apprehension of arrest took the complainant and reached to Ludhiana, Punjab. Once again the father of the complainant started searching but he could not found the complainant. Even in Ludhiana, the accused no. 1 raped the complainant continuously and also gave beating. The complainant could not dare to speak as the accused no. 1 was always giving threats and whenever, even at the time of rape the complainant tried to resist the accused from committing rape, the accused no. 1 started beating and threatening to kill her. In the first week of July, 2010 the father of the complainant received a call by one Gurmeet Singh Rangi who had intimated the father of the complainant about the serious beating given by the accused no. 1 to the complainant upon this intimation, the father of the complainant reached to Ludhiana, Punjab and on 06/07/2010, he returned from there alongwith the complainant. The father of the 5 of 56 6 FIR No. 306/2010 PS Adarsh Nagar complainant took the complainant to Police Station and requested the Police of register the proper FIR but the Police did not register the report on one pretext to another whereas the concerned Police official made entry in his record vide DD No. 51B dated 09/07/2010 but to no result. When the concerned Police officials did not lodge FIR against the aforesaid accused persons the complainant once again lodged written complaint to the DCP Ashok Vihar on dated 02/08/2010 but to no result. The accused no. 1 with the help of accused no. 2 to 4 abducted/kidnapped the complainant under criminal conspiracy and has committed rape upon her against her will and wish. In this way accused persons have committed the offences u/s 363/366/365/376/342/506/120B IPC.
On the said complaint the case was got registered. The investigation was handed over to W/ASI Saroj Devi. During the course of investigation W/ASI Saroj Devi obtained the age proof of the prosecutrix from her CGSS School, Azad Pur in which her date of birth is 14/05/1994. She was got medically examined at BJRM Hospital vide MLC No. 27529/10 and the Doctor did not feel necessary to take the exhibits of the prosecutrix due to case being old. On 27/06/2011,statement of the prosecutrix u/s 164 6 of 56 7 FIR No. 306/2010 PS Adarsh Nagar Cr.P.C. was got recorded. On 12/10/2011, accused Jaswant @ Sonu was arrested. His medical examination was got conducted at BJRM Hospital vide MLC No. 32789/11 and the sealed exhibits given by the doctor after his medical examination were taken into Police possession. Statements of the witnesses were recorded.
Upon completion of necessary further investigation challan u/s 363/366/376/34 IPC was prepared against accused Jaswant Yadav @ Sonu. The investigation against accused Abhi Chand, Smt. Vimla Devi and Ragini was pending and on their arrest supplementary challan will be filed against them.
2. Since the offences u/s 376/366 IPC are exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C., the case against accused Jaswant Yadav @ Sonu was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after hearing on charge prima facie a case u/s 363/34, 366/34, 365 and 376 IPC 7 of 56 8 FIR No. 306/2010 PS Adarsh Nagar was made out against accused Jaswant Yadav @ Sonu. Charge was framed accordingly by the Ld. Predecessor Court which was read over and explained to accused Jaswant Yadav @ Sonu to which he pleaded not guilty and claimed trial.
4. Subsequently, during the course of further investigation, Abhi Chand Yadav, Shrimati and Ragini were arrested and upon completion of necessary further investigation supplementary challan u/s 363/366/376/120B/34 IPC was prepared against them and was sent to the Court for trial.
5. Since the offences u/s 376/366 IPC are exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C, supplementary challan/case against accused Abhi Chand Yadav, Shrimati and Ragini was committed to the Court of Session u/s 209 Cr.P.C.
6. Upon committal of the supplementary challan/case to the Court of Session, after hearing on charge, the Ld. Predecessor Court vide order dated 07/06/2012 discharged the accused Abhi Chand, 8 of 56 9 FIR No. 306/2010 PS Adarsh Nagar Shrimati and Ragini.
7. In support of its case against accused Jaswant Yadav @ Sonu prosecution has produced and examined 11 witnesses. PW1 W/Ct. Kamlesh, PW2 HC Ram Bharose, PW3 W/Ct. Deepa, PW4 Mrs. Sunita Devi, Vice Principal, Govt. Girls Senior Secondary School, Azadpur Colony, Delhi, PW5 Ct. Amit Kumar, PW6 HC Radhey Shyam, PW7 Mrs. Vimla Devi, PW8 Sh. Sachinder Nath Yadav, PW9 The Prosecutrix, PW10 W/ASI Saroj Devi and PW11 Sh. Gurmeet Singh.
8. In brief, the witnessography of the prosecution witnesses is as under : PW1 W/Ct. Kamlesh is the DD Writer, who tendered her examinationinchief by way of affidavit Ext. PW1/1 and proved the DD No. 51B Ext. PW1/A. PW2 HC Ram Bhorse is the Duty Officer who tendered his examinationinchief by way of affidavit Ext. PW2/1 and proved the copy of 9 of 56 10 FIR No. 306/2010 PS Adarsh Nagar FIR Ext. PW2/A and his endorsement on the rukka Ext. PW2/B. PW3 W/Ct. Deepa tendered her examinationinchief by way of affidavit Ext. PW3/1 signed by her at PointA & B and deposed that on 23/06/2011, she went to BJRM Hospital with W/ASI Saroj Devi, prosecutrix, her mother Bimla and got and got conducted the medical examination of the prosecutrix vide MLC No. 27529/11, E. No. 59508/11 and after her medical examination handed over the MLC of the prosecutrix to W/ASI Saroj Devi.
PW4 Mrs. Sunita Devi, Vice Principal, Govt. Girls Senior Secondary School, Azadpur Colony, Delhi who produced the record regarding the date of birth of the prosecutrix and deposed that as per School record, the date of birth of prosecutrix is 14/05/1994 and proved the copy of the admission register Ext. PW4/A, copy of school leaving certificate of prosecutrix Ext. PW4/B and deposed that the date of birth mentioned on Ext. PW4/A is on the basis of SLC of the previous school, copy of which is Ext. PW4/C. PW5 Ct. Amit Kumar who joined the investigation with IO 10 of 56 11 FIR No. 306/2010 PS Adarsh Nagar PW10 ASI Saroj on 12.10.2011 and deposed on the investigational aspects and proved the arrest memo of accused Jaswant Yadav @ Sonu Ext. PW5/A, his personal search memo Ext. PW5/B, seizure memo of the sealed exhibits handed over by the doctor after medical examination of the accused Ext. PW5/C signed by him at point 'A' (Ex. PW5/C is also disclosure statement in the evidence of PW8 - Sachinder Nath Yadav).
PW6 HC Radhey Shyam is the MHC(M) who deposed regarding the depositing of blood sample duly sealed with one sample seal of MS BJRM Hospital, in the malkhana on 12/10/2011 by W/ASI Saroj Devi and proved the relevant entry No. 3640/11 of the Register No. 19 Ex. PW6/A. PW7 Mrs. Vimla Devi is the mother of the prosecutrix who deposed regarding the facts of missing of her daughter/prosecutrix and on the investigational aspects which she joined and proved the MLC of the prosecutrix already Ext. PX6 thumb impressed by her at Point Mark X1.
PW8 Sh. Sachinder Nath Yadav is the father of the prosecutrix, 11 of 56 12 FIR No. 306/2010 PS Adarsh Nagar who also deposed regarding the facts of missing of his daughter/prosecutrix and of her recovery and on the investigational aspects which he joined and proved the arrest memo of accused Jaswant Yadav @ Sonu already Ext. PW5/A, personal search of accused Jawant Yadav @ Sonu already Ext. PW5/B, disclosure statement of accused Jaswant Yadav @ Sonu already Ext. PW5/C (also Ext. PW10/A) and also proved his (PW8) statement Ext. PW8/PX1.
PW9 The prosecutrix, is the victim who deposed regarding the incident and proved her statement made to the police Ext. PW9/A signed by her at point 'A' and also proved the statement made to the Magistrate, u/s 164 Cr.P.C Ext. PW9/B signed by her at point 'A' (also Ext. PX3 Colly).
PW10 W/ASI Saroj Devi is the Investigating Officer (IO) of the case who deposed on the investigational aspects and besides proving other memos also proved disclosure statement of accused Jaswant already Ext. PW10/A (also Ext. PW5/C) and deposed that she also collected the age documents of the prosecutrix Ext. PW10/B (also Ext. PW4/B) & Ext. PW10/C (also Ext. PW4/C) and also proved the application for recording 12 of 56 13 FIR No. 306/2010 PS Adarsh Nagar the statement of the prosecutrix u/s 164 Cr.P.C Ext P2 and application for obtaining the copy of the statement u/s 164 Cr.P.C. Ext. P4.
PW11 Sh. Gurmeet Singh is the driver of the auto/three wheeler who deposed that in the month of July, 2010 at about 5.30 PM he was going to Ludhiana city from his house with his three wheeler auto. He saw in front of Tandari railway station that one boy and one girl were quarreling with each other and the girl gave signal to him to stop his three wheeler and he stopped his three wheeler on her directions. The girl told him that she wants to go to the police chowki. He took the girl in his three wheeler to police post Dandarikalan where the police chowki incharge obtained the mobile phone number of the prosecutrix from her and made call to her father. Thereafter, on the directions of the father of prosecutrix and police chowki incharge, he took prosecutrix to his house. After two days, father of prosecutrix came at his house and thereafter they reached at the police chowki Dandarikalan and thereafter prosecutrix was handed over to her father.
The testimonies of the material prosecution witnesses shall be 13 of 56 14 FIR No. 306/2010 PS Adarsh Nagar dealt with in detail during the course of the appreciation of the evidence.
9. It is to be mentioned that the Ld. Predecessor Court on 15.02.2012 had recorded the statement of Jaswant Yadav @ Sonu 'on oath' wherein the accused has not disputed the proceedings u/s 164 Cr.PC conducted by Ms. Shunali Gupta, Ld. MM on 27.06.2011. The proceedings u/s 164 Cr.P.C contained in the sealed envelope were taken out. The envelope is Ext. PX1, application of IO for recording the statement is Ext. PX2, proceedings u/s 164 Cr.P.C is Ext. PX3 (running into five pages) and the application of the IO for obtaining the copy of the proceedings is Ext. PX4. Accused has deposed that he has no objection, if Ms. Shunali Gupta, Ld. MM be not examined as a witness. Accused also admitted his MLC bearing no. 32789 dated 12.10.2011 Ext. PX5 prepared by Dr. Ganesh Kumar and Dr. Yatender Singh. Accused also admitted the MLC of prosecutrix bearing no. 27529 dated 23.10.2011 (be read as 23/06/2011) Ext. PX6 prepared by Dr. Meet and Dr. Sumitra. The accused had also stated that he has no objection if Ms. Shunali Gupta, the Ld. MM be not examined as a witness. The witnesses Dr. Ganesh Kumar, Dr. Yatender Singh, Dr. Meet and Dr. Sumitra need not be called as witnesses. In view of which the witnesses 14 of 56 15 FIR No. 306/2010 PS Adarsh Nagar Ms. Shunali Gupta, the Ld. MM, Dr. Ganesh Kumar, Dr. Yatender Singh, Dr. Meet and Dr. Sumitra were ordered by the Ld. Predecessor Court not to be called as witnesses.
10. Statement of accused Jaswant Yadav @ Sonu was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication. He opted to lead defence evidence and in his defence examined one witness namely DW1
- Pawan S/o Sh. Maharaj Singh.
DW1 - Pawan has deposed that he works in an iron plant. He knows accused Jaswant Yadav @ Sonu since, 2009. Jaswant Yadav @ Sonu telephoned him in April, 2010 and told that he got married with prosecutrix (name withheld) and he wanted to come to Ludhiana for job and also requested him for arrange (arranging) a room for them. Accused Jaswant Yadav and his wife - prosecutrix came to Ludhiana in the beginning of May, 2010. They stayed over there being husband and wife and remained there for about two months i.e. till June, 2010 thereafter, they came to Delhi for some marriage in the inlaws of Jaswant Yadav @ Sonu. After about 15 days they both came back to Ludhiana and remained there till July. Accused Jaswant 15 of 56 16 FIR No. 306/2010 PS Adarsh Nagar Yadav was doing some job in Ludhiana.
The testimony of the defence witness shall be dealt with in detail during the course of appreciation of evidence.
11. Ld. Counsel for the accused submitted that prosecution has failed to prove its case beyond reasonable doubt and the accused has been falsely implicated in this case because the most important witness of prosecution - PW7 who is the mother of the prosecutrix did not put her finger against accused person to connect him with crime. She stated that when they came back after 1015 days from their native village they came to know that their daughter has gone with accused. She also stated in her examinationinchief that she had gone to Ludhiana along with her husband. It is important to mention here that neither the father of the complainant made complaint to the Police nor the mother of the complainant. In the crossexamination of the PW7 she admitted that her daughter Pooja did not tell her that her daughter prosecutrix (name withheld) had been taken away forcibly by the accused. Vol. She stated that complainant had gone with accused Jaswant on account of her friendly relation (DOST KE NATE GAYE 16 of 56 17 FIR No. 306/2010 PS Adarsh Nagar THI).
Ld. Counsel for accused further stated that the most important part of the testimony of PW8 - Sachinder Nath Yadav, father of the complainant is that "I did not make any complaint to the Police because I was assured by Ami Chand that as and when my daughter and accused are found they would be got married but I should arrange for Rs. 1½ lacs for the said marriage". It is clear that the father of the complainant was very much assured that his daughter will be get married and they (Ami Chand father of the accused) will arrange their (of accused and prosecutrix) marriage after some time. PW8 stated in his examinationinchief that he had gone to Ludhiana all alone but in the examinationinchief of PW7, the mother of the complainant has stated that she also accompanied with the father of the complainant. The most important part of crossexamination of the PW8 is "It is correct that when my daughter was missing, I did not lodge any missing report with the Police. I did not inform any person from my community or in my relation regarding the missing of my daughter". It is also stated by the witness that his daughter Pooja did not inform him that prosecutrix had been taken forcibly by anybody. It is very important to mention here that PW8 who is the father of the complainant did not inform the local Police at the 17 of 56 18 FIR No. 306/2010 PS Adarsh Nagar native village of the accused or the Pardhan of the village Panchayat that the accused and his family had taken away his daughter and were not permitting him to meet her unless he pay them a sum of Rs. 1,50,000/ Ld. Counsel for accused further submitted that the testimony of PW9 - Prosecutrix is self contradictory. She stated in her crossexamination that she was known to the accused ever since she came to Delhi and she also stated that she did not know him well but later i.e. 6/7 months prior to the incident she knew him well. Ld. Counsel for accused argued that she remained with accused for about 5/6 months with her consent and she never tried to run away from accused. She lived in Mumbai, Village of accused and Ludhiana alongwith accused and she never tried to run away because she was going with accused with her own free will and she got married in the Mumbai. She lived in three different State but she did not inform to any person about the kidnapping of herself. She did not even inform to Police during travel from one place to another place. She lived in a rental accommodation in Ludhiana but even there she did not tell to the neighbours. The story setup by prosecutrix is cock and bull story and after legal advice and under pressure of her parents she made complaint against the accused.
Ld. Counsel for accused further submitted that the testimony of 18 of 56 19 FIR No. 306/2010 PS Adarsh Nagar PW10 - W/ASI Saroj Devi clear the things and facts of this case. In her crossexamination, PW10 admitted that prosecutrix herself had told her that she was residing with the accused as his wife. It is important to mention here that IO i.e. PW10 did not investigate the present case properly, she had not gone with prosecutrix to the places where both of them lived together. She also did not make the witness of the neighbours who lived along with the accused and prosecutrix. She also did not take the call details of the mobile phones of the accused father and mother of the prosecutrix.
Ld. Counsel for accused further submitted that the testimony of PW11 - Sh. Gurmeet Singh is not believable because he stated that neither prosecutrix told him anything nor he made inquiry from the prosecutrix. Prosecutrix stated in her examinationinchief and crossexamination that she told everything to the PW11. Ld. Counsel for the accused submitted that there is no material on record against the accused person to connect him with the present incident.
12. While the Ld. Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor 19 of 56 20 FIR No. 306/2010 PS Adarsh Nagar and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
13. I have heard the Ld. Addl. PP for the State and Sh. Shivender Vishwas, Ld. Amicus Curiae for the accused and have also carefully perused the entire record.
14. The charge for the offences u/s 363/34, 366/34, 365, 376 IPC against accused Jaswant Yadav @ Sonu is that in December, 2009 after calling the prosecutrix (name withheld) D/o Sh. Sachindra Nath Yadav, aged about 15 years, at his neighbouring house, he alongwith coaccused Hari Chand, Shri Vati and Ragini kidnapped the prosecutrix from the lawful guardianship of her parents and that on the above said date and place he alongwith his coaccused named above kidnapped the prosecutrix with the intention that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced or illicit intercourse and that on the above said date and place he kidnapped the prosecutrix with intend to cause that she may be 20 of 56 21 FIR No. 306/2010 PS Adarsh Nagar secretly and wrongfully confined and during period December, 2009 to July, 2010 he kept confined the prosecutrix at Mumbai and Devaria, UP and that between December, 2009 to July, 2010 he committed rape upon prosecutrix at Mumbai and to (at) his native village Balkuan, PS - Hata, District Devaria, UP.
15. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX:
16. PW4 Mrs. Sunita Devi, Vice Principal, Govt. Girls Senior Secondary School, Azadpur Colony, Delhi in her examinationinchief has deposed that the date of birth of the prosecutrix is 14.05.1994. She is now left the school after passing out from class 10th in the year 2009 and proved the copy of the admission register Ext. PW4/A, copy of school leaving 21 of 56 22 FIR No. 306/2010 PS Adarsh Nagar certificate Ext. PW4/B, SLC Ext. PW4/C of the previous school on the basis of which the date of birth mentioned on Ext. PW4/A. PW7 Mrs. Vimla, mother of the prosecutrix in her cross examination has deposed that her daughter was born in the native village. She only have a janam patri, but her date of birth was not registered. She does not recollect how many years ago her marriage was solemnized. When she got married, she was hardly 14 years. Vol. her gauna took place after five years. She could not tell the year, when her daughter was born but it was after 34 years of gauna.
PW8 Sh. Sachinder Nath Yadav, father of the prosecutrix in his examinationinchief has deposed that the prosecutrix is his eldest daughter and her year of birth is 1994 but he does not recollect the exact date.
During his crossexamination PW8 - Sachinder Nath Yadav has deposed that : "I was married in the year 1981. Vol. my gauna took place after five years. My daughter was born after 1314 years of the gauna. Vol. she was born in the year 1994. It is wrong to suggest that my daughter was born 22 of 56 23 FIR No. 306/2010 PS Adarsh Nagar 34 years of gauna and her date of birth mentioned in the school certificate is wrongly mentioned as 1994 only to give her the benefit of the age. My daughter was born in Delhi at home. On the basis of the certificate of the doctor her registration the MCD was got done. It is correct that the date of birth certificate was obtained in the year 2008. Vol. it was only when we required to admit her in a school in Delhi that the date of birth certificate was prepared. It is correct that the prosecutrix was studying in the village school previously. It is wrong to suggest that she was born in the village and I have fabricated the document of certificate of birth showing her date of birth as 14.05.1994 for purposes of giving her the benefit."
PW10 - W/ASI Saroj Devi in her examinationinchief has deposed that during the investigation she collected the age documents of the victim Ext. PW10/B (also Ext. PW4/B) and Ex. PW10/C (also Ex. PW4/C). The perusal of Ext. PW10/B and Ext. PW10/C shows that Ext. PW10/B is the School Leaving Certificate (SLC) and Ext. PW10/C is the Transfer Certificate Form (TCF).
In the circumstances, from the testimony of PW4 Mrs. Sunita Devi, Vice Principal, Govt. Girls Senior Secondary School, Azadpur Colony, Delhi, PW7 Mrs. Vimla and PW8 Sh. Sachinder Nath Yadav it stands proved on record that the date of birth of the prosecutrix is 14.05.1994.
23 of 56 24 FIR No. 306/2010 PS Adarsh Nagar Undisputably, no evidence to the contrary has been proved and led by the accused on the record.
As the alleged incident is of the month of December, 2009 and the date of birth of prosecutrix is 14/05/1994, on simple arithmetical calculation, the age of prosecutrix comes to 15 years 6 months and 16 days as the date of incident in December, 2009.
The Hon'ble Supreme Court in case State of Maharashtra Vs. Gajanan Hemant Janardhan Wankdhede (2008) 8 SCC 38 has held as under : "13. .....On the basis of the evidence of the Headmaster and the original school leaving certificate and the school register which were produced the High Court came to abrupt conclusion that normally for various reasons the guardians to understate the age of their children at the time of admission in the school. There was no material or basis for coming to this conclusion. The High Court in the absence of any evidence to the contrary should not have come to hold that the date of birth of the prosecutrix was not established and the school leaving certificate and the school register are not conclusive.
14. Interestingly, no question was put to the victim in cross examination about the date of birth. The High Court also noted that no document was produced at the time of admission and a horoscope was purportedly produced. There is no requirement that at the time of 24 of 56 25 FIR No. 306/2010 PS Adarsh Nagar admission documents are to be produced as regards the age of the student....."
In view of above and in the circumstances, it stands established on record that PW9 prosecutrix was aged 15 years 6 months and 16 days as on the date of alleged incident in December, 2009, thus a minor. MEDICAL EVIDENCE:
17. During his statement recorded on 15.02.2012 by the Ld. Predecessor Court, on oath accused Jaswant Yadav @ Sonu has admitted the MLC of prosecutrix bearing no. 27529 dated 23.10.2011 (be read as 23/06/2011) prepared by Dr. Meet and Dr. Sumitra Ext. PX6 and also stated that the witnesses Dr. Meet and Dr. Sumitra need not be called as witnesses.
On perusal of the MLC Ext. PX6 it is interalia found mentioned therein that the prosecutrix was examined by Dr. Sumitra OBS S.R. Gynae on 23.06.2011 at 4:05 PM with the alleged history of sexual assault in June, 2010; Breast examination : no fresh injury found on bilateral breast. Per 25 of 56 26 FIR No. 306/2010 PS Adarsh Nagar abdomen examination (P/A) : no fresh external injury found; per speculam (P/S) no discharge/bleeding found, no fresh external injury found; per vaginal examinationintroitous admit index finger easily, hymen torned one.
In view of above and in the circumstances, gynaecological examination of the PW1 Prosecutrix as was conducted by Dr. Sumitra on 23.06.2011 of Babu Jagjeevan Ram Memorial Hospital stands established on the record.
VIRILITY OF ACCUSED:
18. During his statement recorded on 15.02.2012 by the Ld. Predecessor Court, on oath accused Jaswant Yadav @ Sonu has admitted his MLC bearing no. 32789 dated 12.10.2011 prepared by Dr. Ganesh Kumar and Dr. Yatender Singh Ext. PX5 and has also stated that the witnesses Dr. Ganesh Kumar and Dr. Yatender Singh need not be called as witnesses.
On perusal of the MLC Ext. PX5 the patient/accused Jaswant Yadav @ Sonu was examined by S.R. Surgery Dr. Yatender Singh of Babu 26 of 56 27 FIR No. 306/2010 PS Adarsh Nagar Jagjeevan Ram Memorial Hospital, Delhi. He has opined that there is nothing o suggest that accused is not capable of doing sexual assault.
In view of above and in the circumstances, it stands established on the record that the accused was capable of doing sexual assault.
19. Now let the testimonies of PW9 - prosecutrix, PW7 - Mrs. Vimla Devi, mother of the prosecutrix, PW8 - Sachinder Nath Yadav, father of the prosecutrix and PW11 - Sh. Gurmeet Singh be perused and analysed.
PW9 The Prosecutrix in her examinationinchief has deposed which is reproduced and reads as under : "The father of accused Sonu is our neighbour. The accused Sonu is present in the court (correctly identified by the witness). We were in visiting terms. Ragini, the sister of Sonu, was also my friend and was on visiting terms with us. On one prior occasion I had stayed in the house of Ragini as I had very good relations with her. It was in the month of December, 2009, exact date I do not recollect, Sonu and his father came to my house and told me that Ragini wanted to talk with me on which I spoken to Ragini on the mobile phone of Sonu. Ragini told me that there was a pooja at her house and she invited me to her house on which I told her that I could not come since my parents were away to our native village but Ragini insisted upon the same on which I accompanied Sonu and his father to the 27 of 56 28 FIR No. 306/2010 PS Adarsh Nagar house of Ragini. When I reached her house there was no Pooja and when I asked Ragini why I have been called, she told me that Pooja was in the evening. Again, in the evening there was no Pooja on which I insisted upon me going home but Ragini insisted that I should stay with her till morning. In the morning Sonu, his father and his sister Ragini took me to New Delhi Railway Station. I got scared and started crying on which one police official asked me why I was crying but before I could disclose anything to him, Ragini explained to the police official that since I was going to the native village that was why I was crying. From there I was put in a train along with Sonu who took me to Mumbai where at night Sonu kept me in the house of his cousin brother (chachera bhai). Sonu kept me at Mumbai for about two months in the said house where he used to beat me regularly and used to do jabardasti with me.
Court Question: What do you mean by jabardasti?
Ans. : He made physical relations with me forcibly."
PW9 The Prosecutrix in her examinationinchief has further deposed that : "Thereafter, Sonu brought me to his native village i.e Bakuwan, Gorakhpur, where I was kept in his house for two months. Even there I was regular beaten by Sonu and his mother. I also came to know that my father was searching for me but they were not told by the family of the accused Sonu that they were not aware of my whereabouts. I was also threatened by the accused and his family that I should demand money from my father. Thereafter, the mother of Sonu told him to take me away from there or else she would kill me on which Sonu took me to Ludhiyana where he kept me for about 1520 days. One day while he was beating me, some of the 28 of 56 29 FIR No. 306/2010 PS Adarsh Nagar neighbour saw him and objected to the same on which Sonu told the neighbour that it was his private affair and thereafter he dragged me on the road. While he was beating me a TSR/Auto came there. I stopped the TSR and set in the same and told the Auto driver to take my (me) anywhere. The Auto driver who was an elderly person took pity on me and asked me what had happened and I narrated him the entire incident after which he took me to his house and told me that he could not leave me anywhere. I gave him the telephone number of my father on which the Auto Driver made a call to my father. He also gave information to local police at police Chowki but there the police told the Auto wala uncle that it was the case of Delhi."
PW9 The Prosecutrix in her examinationinchief has further deposed that : "Thereafter when my father brought me Delhi, I made my complaint to the police. Later since my case was not registered, I made a complaint in the court. My statement was recorded by the police which is Ext. PW9/A (running into three pages) bearing my signatures at PointA. I was thereafter got medically examined on 23.6.2010. Again said it was 2011. when I came back to the police station, my statement was again recorded by the police. I was also produced before the Ld. MM and my statement under Section 164 Cr.PC was recorded which statement is Ext. PW9/B bearing my signatures at point A."
From the aforesaid narration of PW9 - prosecutrix, it is clearly indicated that prosecutrix was got induced and insisted upon by accused Sonu through his sister Ragini to come to her (Ragini) house on the false 29 of 56 30 FIR No. 306/2010 PS Adarsh Nagar pretext of Pooja (worship) at her (Ragini) house despite her (prosecutrix) expression of inability to come, as her parents were away to their native village and on the said inducement and insistence prosecutrix was taken to the house of Ragini by accused Sonu and his father. On reaching there it was found by prosecutrix that there was no Pooja (worship) and when prosecutrix asked Ragini why she has been called, she (Ragini) told her that the Pooja (worship) was in the evening. Again, in the evening there was no Pooja (worship) on which prosecutrix insisted upon for going home but Ragini insisted upon the prosecutrix to stay till morning. In the morning, accused Sonu, his father and his sister Ragini took her (prosecutrix) to New Delhi Railway Station. From there, she was put in a train alongwith accused Sonu, who took her to Mumbai and kept her there at night in the house of his cousin brother. Accused Sonu kept her at Mumbai for about two months in the said house where he beated her regularly and did jabardasti/made physical relations forcibly with her. Thereafter, accused Sonu brought her to his native village Bakuwan Gorakh Pur and kept her there in his house for two months and she was regularly beaten by him and his mother. Father of prosecutrix who was searching her was told by the family of accused Sonu that they were not aware of her (prosecutrix) whereabouts. She was also 30 of 56 31 FIR No. 306/2010 PS Adarsh Nagar threatened by accused Sonu and his family to demand money from her father. The mother of the accused Sonu told him to take her (prosecutrix) away from there or else she would kill her (prosecutrix) on which accused Sonu took her (prosecutrix) to Ludhiana and kept her there for about 1520 days. One day while accused Sonu was beating the prosecutrix, some of the neighbour saw him and objected to the same on which accused Sonu told them that it was his private affair and thereafter he dragged her on the road. When accused Sonu was beating her, a TSR/Auto came there and she stopped the TSR and sat in the same and told the Auto driver to take her anywhere. The Auto Driver an elderly person took pity on her and asked her what had happened. Prosecutrix narrated the entire incident to him who made a telephone call to the father of the prosecutrix, who brought the prosecutrix to Delhi and the prosecutrix made the statement to Police Ex. PW9/A signed by her at point 'A'. She was medically examined and her statement u/s 164 Cr.P.C. Ex. PW9/B (also Ex. PX3 Colly.) was recorded signed by her at point 'A'.
During her crossexamination, PW9 - Prosecutrix negated the suggestions that she got married to the accused at Mata Mandir at Mumbai or that her marriage with accused Sonu took place in the Mata Mandir at Mumbai or that she did not try to run away and was staying voluntarily with 31 of 56 32 FIR No. 306/2010 PS Adarsh Nagar the accused or that she is deposing falsely on this account (of making call to her father) and she was regularly talking with her mother on telephone or that accused had also brought her to Delhi to the house of her parents on one occasion for attending marriage in the family or that the auto wala uncle resided in her neighbourhood. Voluntarily stated that she did not know that auto driver previously. She also negated the suggestions that she was regularly going to the house of that auto wala uncle who was her neighbour or that he was residing near her house or that the dispute between her and her husband/accused was on account of her regular visits to the house of their neighbours or that she is deposing falsely at the instance of her family members or that she made her statement u/s 164 Cr.P.C. on tutoring of her parents or that she is deposing falsely.
Inspite of incisive crossexamination PW9 - Prosecutrix nothing material could be brought out so as to impeach her creditworthiness. In the witness box she has withstood the test of crossexamination and her testimony is consistent throughout. The version of this witness on the core spectrum of the crime has remained intact. On careful perusal and analysis her testimony is found to be clear, natural, cogent, trustworthy, convincing and inspires confidence. There is nothing in her statement to suggest that she 32 of 56 33 FIR No. 306/2010 PS Adarsh Nagar had any animus against the accused to falsely implicate him in the case.
The testimony of PW9 - Prosecutrix is also found to be in consonance with her statement made to the Police Ex. PW9/A as well as her statement u/s 164 Cr.P.C. Ex. PW9/B (also Ex. PX3 Colly.) The testimony of PW9 the Prosecutrix is also been corroborated by the testimonies of PW7 Mrs. Vimla Devi, mother of the prosecutrix, PW8 Sh. Sachinder Nath Yadav, father of the prosecutrix and PW11 Gurmeet Singh in material particulars to whom PW9 - Proecutrix had disclosed he facts relating to crime immediately after the incident at the first available opportunity being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
PW7 - Mrs. Vimla Devi in her examinationinchief has deposed which is reproduced and reads as under : "I am residing at the aforementioned address alongwith my family comprising of my husband, three daughters and two sons. Prosecutrix (name withheld) is the eldest. In the month of December, 2009, I alongwith my husband had gone to my native village Pedahni, PS - Rudrapur, Distict Dewariya, UP. When we returned we came to know that my daughter prosecutrix (name withheld) had left with Sonu, our neighbour about 1015 days ago and did not return thereafter. I can identify accused Sonu who is present in the Court today (correctly identified by the witness). We tried to search her in the neighbourhood but could not locate her. Thereafter, I do 33 of 56 34 FIR No. 306/2010 PS Adarsh Nagar not know what had happened. After about 57 months some Sikh gentleman had made a call from Ludhiana that my daughter is in his house. I alongwith my husband had gone to Ludhiana. There I found my daughter in the house of one Sikh gentleman where she was staying with Sonu. I was told that my daughter was beaten and abandon by the accused on which the Sikh gentleman took a pity on her and brought her home and informed us. We tried to lodge a complaint in Ludhiana but Police told us that it was required to be registered at Delhi. Therefore, when we returned to Delhi, we went to Police Station - Adarsh Nagar from where my daughter was taken to BJRM Hospital from where her medical examination was got conducted. I had put my thumb impressions on various documents after which MLC of my daughter was prepared which is already Ex. PWX6 which thumb impressions are at point mark X1."
During her crossexamination PW7 - Mrs. Vimla negated the suggestions that her daughter had voluntarily eloped with accused as she was in love with him or that she had married to the accused and only on account of a marital discord between the accused and her daughter which took place later, the present case was registered on legal advice or that the false allegations had been made against the accused or that he has been falsely implicated in the present case.
PW8 - Sh. Sachinder Nath Yadav, father of the prosecutrix in his examinationinchief has deposed which is reproduced and reads as under 34 of 56 35 FIR No. 306/2010 PS Adarsh Nagar : "I am residing at the above mentioned address along with my family comprising of my wife, five children i.e. three daughters and two sons since 1984. I am presently running a shop and I am also a member of the Rashtriya Rajdhani Sharmik Sang. The prosecutrix (name withheld) is my eldest daughter and her year of birth is 1994 but I do not recollect the exact date. In the month of December, 2009, I alongwith my wife and two sons had gone to my native village i.e. village Pidhani, Post Office Rudrapur, District Dewariya, UP. My daughters were in Delhi. While my wife stayed at village while I returned home after about 15 days and when I returned, I found (be read as I did not found) my daughter/prosecutrix (name withheld). On inquiry from my daughters, I was told by my daughter Pooja that my daughter/prosecutrix (name withheld) had left the house about 810 days ago, informing her that there was a party in the house of Ragini who is the sister of Sonu but thereafter she did not returned. I was known to the family of Sonu and his father Ami Chand being from the same caste. They had left the area about 1½ months prior to the incident. I tried to search for my daughter at the house of Ami Chand where he previously stayed but from there I came to know that he has shifted else where and when I went to the said place, I found that there was a lock. I tried to search for my daughter at other places but could not find her. Thereafter, I went to the native village of Ami Chand. Initially, I did not meet Ami Chand but again when I went on the second occasion, I met him and inquired about my daughter from him but he pleaded ignorance claiming that he was at their native village. He also told me that he did not know about the whereabouts of his son Sonu. Thereafter, I and Ami Chand went to the house of Ragini which is in the adjoining village where we met her husband Anil, children and other family members. Ragini told me that she did not know about the whereabouts of the accused and my 35 of 56 36 FIR No. 306/2010 PS Adarsh Nagar daughter. I returned home by requesting Ami Chand, Ragini and family members that if they come to know about my daughter and Sonu, they should inform us. Thereafter, on account of social humiliation, I did not make any complaint to the Police because I was assured by Ami Chand that as and when my daughter and accused Sonu are found they would be got married but I should arrange for Rs. 11½ lacs for the said marriage. In the month of June, 2010 I took my children to my native village as there were summer vacations in the School. In the last week of June, I received a telephone call from Punjab from one Gurmeet Singh Rangi resident of Ludhiana, Punjab, who informed me that my daughter was being beaten by somebody on the roads and he had brought her home in an injured condition and whether I want to bring her back. I told the gentleman to keep my daughter at his house and I would come and picked her up. After 45 days I went to Ludhiana and informed the Local Police there and went to the house of Gurmeet Singh Rangi from where I brought my daughter back to Delhi on 06th of July.
During his crossexamination PW8 - Sh. Sachinder Nath Yadav, father of the prosecutrix negated the suggestions that his daughter had voluntarily eloped with the accused as she was in love with the accused or that his daughter had told him that she had married the accused or that the false allegations had been made against the accused after legal advice.
PW11 - Sh. Gurmeet Singh in his examinationinchief has 36 of 56 37 FIR No. 306/2010 PS Adarsh Nagar deposed which is reproduced and reads as under : "I am a property dealer. In the year, 2010 I used to drive auto three wheeler. I do not remember the exact date but in the month of July, 2010 at about 5:30 p.m. I was going to Ludhiana City from my house with my three wheeler auto. I saw in front to (of) Tandari Railway Station that one boy and one girl were quarreling with each other and the girl gave signal to me to stop my three wheeler and I stopped my three wheeler on her directions. The girl told me that she wants to go to the Police Chowki. I took that girl in my three wheeler in the Police Post Dandari Kalan. The girl disclosed her name as prosecutrix (name withheld). The Police Chowki In charge obtained the mobile phone number of father of the prosecutrix (name withheld) from her and he made call to the father of the prosecutrix (name withheld). Her father told to Police Chowki Incharge that he was coming to Ludhiana and the girl/prosecutrix (name withheld) be handed over to me. Thereafter, on the directions of father of prosecutrix (name withheld) and Police Chowki Incharge, I took prosecutrix (name withheld) to my house. After two days, father of prosecutrix (name withheld) came at my house and thereafter, we reached at the Police Chowki Dandari Kalan and thereafter, prosecutrix (name withheld) was handed over to her father.
During his crossexamination by the Ld. Defence Counsel, PW11 - Sh. Gurmeet Singh negated the suggestions that he did not take the prosecutrix (name withheld) to the Police Chowki so therefore no documents was prepared by the Police of the Police Post Tandari Kalan (Dandari Kalan) or that he was not having any commercial licence at the time of incident and 37 of 56 38 FIR No. 306/2010 PS Adarsh Nagar he was not driving any three wheeler auto at that time or that he was residing near the house where the prosecutrix (name withheld) was residing at Kandari Kalan (Dandari Kalan) or that he is deposing falsely.
There is nothing in the crossexaminations of PW7 - Mrs. Vimla Devi, mother of the prosecutrix PW8 - Sh. Sachinder Nath Yadav, father of the prosecutrix and PW11 - Sh. Gurmeet Singh so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. Their testimonies on perusal and analysis are found to be natural, reliable and have a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate him in the case.
20. While analysing the testimonies of PW9 - Prosecutrix, PW7 - Mrs. Vimla Devi, mother of the prosecutrix PW8 - Sh. Sachinder Nath Yadav, father of the prosecutrix and PW11 - Sh. Gurmeet Singh as discussed hereinabove, inspite of incisive crossexamination nothing has come out in the statements of PW9 - Prosecutrix, PW7 - Mrs. Vimla Devi, mother of the prosecutrix PW8 - Sh. Sachinder Nath Yadav, father of the prosecutrix and PW11 - Sh. Gurmeet Singh which may throw even a slightest doubt on the 38 of 56 39 FIR No. 306/2010 PS Adarsh Nagar prosecution version of the incident. Though, the suggestions by defence to PW9 - Prosecutrix that she got married to the accused at Mata Mandir at Mumbai or that her marriage with accused Sonu took place in the Mata Mandir at Mumbai or that she did not try to run away and was staying voluntarily with the accused or that she is deposing falsely on this account (of making call to her father) and she was regularly talking with her mother on telephone or that accused had also brought her to Delhi to the house of her parents on one occasion for attending marriage in the family or that the auto wala uncle resided in her neighbourhood or that she was regularly going to the house of that auto wala uncle who was her neighbour or that he was residing near her house or that the dispute between her and her husband/accused was on account of her regular visits to the house of their neighbours or that she is deposing falsely at the instance of her family members or that she made her statement u/s 164 Cr.P.C. on tutoring of her parents or that she is deposing falsely and the suggestions to PW7 - Mrs. Vimla Devi, mother of the prosecutrix that her daughter had voluntarily eloped with accused and she was in love with him or that she had married to the accused and only on account of a marital discord between the accused and her daughter which took place later, the present case was registered or 39 of 56 40 FIR No. 306/2010 PS Adarsh Nagar that the false allegations had been made against the accused or that he has been falsely implicated in the present case and the suggestions to PW8 - Sh. Sachinder Nath Yadav, father of the prosecutrix that his daughter had voluntarily eloped with accused as she was in love with the accused or that his daughter had told him that she had married the accused or that false allegations had been made against the accused after legal advice and the suggestions to PW11 - Gurmeet Singh that he did not take the prosecutrix (name withheld) to the Police Chowki so therefore no documents was prepared by the Police of the Police Post Randari Kalan (Dandari Kalan) or that he was not having any commercial licence at the time of incident and he was not driving any three wheeler auto at that time or that he was residing near the house where the prosecutrix (name withheld) was residing at Kandari Kalan (Dandari Kalan) or that he is deposing falsely, were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence.
However, a futile attempt has been made by the accused to save his skin from the clutches of law by way of examination of DW1 - Pawan, his friend.
DW1 - Pawan in his examinationinchief has deposed that he 40 of 56 41 FIR No. 306/2010 PS Adarsh Nagar works in an iron plant and knows accused Jaswant Yadav @ Sonu since, 2009. Jaswant Yadav @ Sonu telephoned him in April, 2010 and told that he got married with prosecutrix (name withheld) and he wanted to come to Ludhiana for job and also requested him for arrange (arranging) a room for them. Accused Jaswant Yadav and his wife - prosecutrix came to Ludhiana in the beginning of May, 2010. They stayed over there being husband and wife and remained there for about two months i.e. till June, 2010 thereafter, they came to Delhi for some marriage in the inlaws of Jaswant Yadav @ Sonu. After about 15 days they both came back to Ludhiana and remained there till July. Accused Jaswant Yadav was doing some job in Ludhiana.
During his crossexamination by Ld. Addl. PP for the State DW1
- Pawan has negated the suggestions that he does not know the exact date of his coming to Ludhiana as he has not stayed with him during his visit at Ludhiana or that he is deposing falsely and concocted a story of residing at his house in order to save him (accused) from this case.
On careful perusal and analysis of the testimony of DW1 - Pawan, it is found that, a new theory of "Accused Jaswant Yadav @ Sonu telephonically told him that he got married with Prosecutrix (name 41 of 56 42 FIR No. 306/2010 PS Adarsh Nagar withheld) and he wanted to come to Ludhiana for Job" has been propounded by the said witness.
During his crossexamination DW1 - Pawan has deposed that : "Accused Jaswant had told me that he has married with prosecutrix (name withheld) two months before when he had called to me but he has not stated where he had married and how many persons were present on his marriage".
"I do not know the exact date when accused Jaswant Yadav came to Ludhiana and left the Ludhiana alongwith prosecutrix (name withheld)".
If DW1 - Pawan is the friend of accused Jaswant and was knowing him since, 2009 and had telephonically came to know that he (accused Jaswant) had married and was coming to Ludhiana for job, how is it that he (DW1 - Pawan) does not know as to when on which date, where his friend married and how is that he (DW1 - Pawan) was not invited in the marriage and how is that he (DW1 - Pawan) does not know the exact date when his friend (accused Jaswant) came to Ludhiana and left Ludhiana more so, when he (accused Jaswant) had allegedly stayed with him in his house.
In the circumstances, the "Theory of Accused Jaswant Yadav @ Sonu telephonically told him that he got married with Prosecutrix 42 of 56 43 FIR No. 306/2010 PS Adarsh Nagar (name withheld) and he wanted to come to Ludhiana for Job", so propounded by is mere an afterthought and falls flat on the ground. Moreover, no suggestion of telephonically informing to DW1 - Pawan and coming to Ludhiana for job and of staying with DW1 - Pawan at Ludhiana were put either to PW9 - Prosecutrix or to PW7 Mrs. Vimla Devi, mother of the prosecutrix or to PW8 Sh. Sachinder Nath Yadav or to PW11 Gurmeet Singh during the course of their crossexamination.
Further, Ld. Counsel for the accused failed to explain the use and utility of the said defence witnesses as to how and in what manner he (DW1 - Pawan) advances the defence of the accused.
In view of above and in the circumstances, it is clearly indicated that DW1 - Pawan is a procured and a worthless witness and his testimony does not inspires confidence.
21. Ld. Counsel for the accused submitted that the most important witness of prosecution - PW7, Mrs. Vimla Devi who is the mother of the prosecutrix did not put her finger against accused person to connect him with the crime. She stated that when they came back after 1015 days from their native village they came to know that their daughter has gone with accused.
43 of 56 44 FIR No. 306/2010 PS Adarsh Nagar She also stated in her examinationinchief that she had gone to Ludhiana along with her husband. In the crossexamination of the PW7 she admitted that her daughter Pooja did not tell her that her daughter prosecutrix (name withheld) had been taken away forcibly by the accused. Vol. She stated that complainant had gone with accused Jaswant on account of her friendly relation (DOST KE NATE GAYE THI).
I have carefully perused and analysed the evidence on record. It appears that the Ld. Counsel for the accused had adopted the tactics of pick and choose and has not gone through the evidence on record in its totality.
At the cost of repetition, PW9 - prosecutrix in her examination inchief has specifically deposed : "The father of accused Sonu is our neighbour. The accused Sonu is present in the court (correctly identified by the witness). We were in visiting terms. Ragini, the sister of Sonu, was also my friend and was on visiting terms with us. On one prior occasion I had stayed in the house of Ragini as I had very good relations with her. It was in the month of December, 2009, exact date I do not recollect, Sonu and his father came to my house and told me that Ragini wanted to talk with me on which I spoken to Ragini on the mobile phone of Sonu. Ragini told me that there was a Pooja at her house and she invited me to her house on which I told her that I could not come since my parents were away to our native 44 of 56 45 FIR No. 306/2010 PS Adarsh Nagar village but Ragini insisted upon the same on which I accompanied Sonu and his father to the house of Ragini. When I reached her house there was no pooja and when I asked Ragini why I have been called, she told me that pooja was in the evening. Again, in the evening there was no pooja on which I insisted upon me going home but Ragini insisted that I should stay with her till morning. In the morning Sonu, his father and his sister Ragini took me to New Delhi Railway Station. I got scared and started crying on which one police official asked me why I was crying but before I could disclose anything to him, Ragini explained to the police official that since I was going to the native village that was why I was crying. From there I was put in a train along with Sonu who took me to Mumbai where at night Sonu kept me in the house of his cousin brother (chachera bhai). Sonu kept me at Mumbai for about two months in the said house where he used to beat me regularly and used to do jabardasti with me.
Court Question: What do you mean by jabardasti?
Ans. : He made physical relations with me forcibly."
PW7 - Mrs. Vimla Devi in her crossexamination has clearly deposed that : "It is correct hat we were on visiting terms with the family of Sonu @ Jaswant but it is wrong to suggest that it is for this reason we did not got the case registered. It is correct that my daughter and accused were known to each other for the last two years before she had gone away with accused Sonu @ Jaswant. It is correct that my daughter Pooja did not tell me that my daughter prosecutrix (name withheld) had been taken away forcibly by the accused. Vol. I was told that she had gone with the accused Sony on 45 of 56 46 FIR No. 306/2010 PS Adarsh Nagar account of her friendly relations (dosti ke nate gaye thi)."
The testimonies of PW9 - Prosecutrix and PW7 - Mrs. Vimla Devi are natural, clear, cogent, reliable and inspires confidence as have been discussed in detail hereinabove. Their testimonies are to be read in totality and not in a fragmented manner, PW7 - Mrs. Vimla Devi has candidly deposed regarding the facts which were disclosed to her, without concealing the same. Nothing more can be read in the testimony of PW7 - Mrs. Vimla Devi.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
22. Ld. Counsel for the accused submitted that PW8 - Sh. Sachinder Nath Yadav, father of the prosecutrix has stated that "I did not make any complaint to the Police because I was assured by Ami Chand that as and when my daughter and accused are found they would be got married but I should arrange for Rs. 1½ lacs for the said marriage". It is clear that the father of the complainant was very much assured that his daughter will be get married and they (Ami Chand father of accused) will arrange their (of accused and prosecutrix) marriage after some time. The most important part 46 of 56 47 FIR No. 306/2010 PS Adarsh Nagar of crossexamination of the PW8 is "It is correct that when my daughter was missing, I did not lodge any missing report with the Police. I did not inform any person from my community or in my relation regarding the missing of my daughter". It is also stated by the witness that his daughter Pooja did not inform him that prosecutrix (name withheld) had been taken forcibly by anybody. It is very important to mention here that PW8 who is the father of the complainant did not inform the local Police at the native village of the accused or the Pardhan of the village Panchayat that the accused and his family had taken away his daughter and were not permitting him to meet her unless he pay them a sum of Rs. 1,50,000/.
I have carefully perused and analysed the evidence on record. It appears that the Ld. Counsel for the accused had adopted the tactics of pick and choose and has not gone through the evidence on record in its totality.
At the cost of repetition, PW8 - Sh. Sachinder Nath in his examinationinchief has specifically deposed that : "In the month of December, 2009, I alongwith my wife and two sons had gone to my native village i.e. village Pidhani, Post Office Rudrapur, District Dewariya, UP. My daughters were in Delhi. While my wife stayed at village while I returned home after about 15 days and when I returned, I found (be read as I did not found) my daughter/prosecutrix (name withheld).
47 of 56 48 FIR No. 306/2010 PS Adarsh Nagar On inquiry from my daughters, I was told by my daughter Pooja that my daughter/prosecutrix (name withheld) had left the house about 810 days ago, informing her that there was a party in the house of Ragini who is the sister of Sonu but thereafter she did not returned. I was known to the family of Sonu and his father Ami Chand being from the same caste. They had left the area about 1½ months prior to the incident. I tried to search for my daughter at the house of Ami Chand where he previously stayed but from there I came to know that he has shifted else where and when I went to the said place, I found that there was a lock. I tried to search for my daughter at other places but could not find her. Thereafter, I went to the native village of Ami Chand. Initially, I did not meet Ami Chand but again when I went on the second occasion, I met him and inquired about my daughter from him but he pleaded ignorance claiming that he was at their native village. He also told me that he did not know about the whereabouts of his son Sonu. Thereafter, I and Ami Chand went to the house of Ragini which is in the adjoining village where we met her husband Anil, children and other family members. Ragini told me that she did not know about the whereabouts of the accused and my daughter. I returned home by requesting Ami Chand, Ragini and family members that if they come to know about my daughter and Sonu, they should inform us. Thereafter, on account of social humiliation, I did not make any complaint to the Police because I was assured by Ami Chand that as and when my daughter and accused Sonu are found they would be got married but I should arrange for Rs. 11½ lacs for the said marriage".
From the aforesaid narration of PW8 - Sh. Sachinder Nath, it is 48 of 56 49 FIR No. 306/2010 PS Adarsh Nagar clearly indicated that on account of social humiliation he did not make any complaint to the Police and also on the assurance of Ami Chand that as and when prosecutrix and accused Sonu are found they would be got married. Sight cannot be lost of the amount of pain and tension besides the fear of social humiliation, through which the parents of a missing daughter undergo. They search for every hope and assurance in order to save their being and social prestige and honour. In the circumstances nothing more can be read in the testimony of PW8 - Sh. Sachinder Nath Yadav for not making complaint to the Police.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
23. Ld. Counsel for the accused submitted that the testimony of PW9 - Prosecutrix is is self contradictory. She stated in her cross examination that she was known to the accused ever since she came to Delhi and she also stated that she did not know him well but later i.e. 6/7 months prior to the incident she knew him well. Ld. Counsel for the accused argued that she remained with accused for about 5/6 months with her consent and she never tried to run away from accused. She lived in Mumbai, Village of 49 of 56 50 FIR No. 306/2010 PS Adarsh Nagar accused and Ludhiana along with accused and she never tried to run away because she was going with accused with her own free will and she got married in the Mumbai. She lived in three different State but she did not inform to any person about the kidnapping of herself. She did not even inform to Police during travel from one place to another place. She lived in a rental accommodation in Ludhiana but even there she did not tell to the neighbours. The story setup by prosecutrix is cock and bull story and after legal advice and under pressure of her parents she made complaint against the accused.
I have carefully perused and analysed the evidence on record. It appears that Ld. Counsel for the accused has either misread or has not completely read the evidence of PW9 - Prosecutrix.
In her crossexamination, PW9 - prosecutrix has specifically deposed that : "I remained with the accused for about 56 months. Vol. During this period, the accused made physical relations with me forcibly."
"It is wrong to suggest that I got marry to the accused at Mata Mandir at Mumbai. It is wrong to suggest that my marriage with the accused Sonu took place at the Mata Mandir at Mumbai".
"I tried to run away on number of occasions but I was caught. It is wrong to suggest that I did not try to run away and was staying voluntarily
50 of 56 51 FIR No. 306/2010 PS Adarsh Nagar with the accused.
On a conjoint reading of the examinationinchief of PW9 - Prosecutrix as reproduced hereinbefore and her crossexamination detailed above, in the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
24. Ld. Counsel for the accused submitted that PW10 - W/ASI Saroj Devi in her crossexamination, has admitted that prosecutrix herself had told her that she was residing with the accused as his wife. PW10 did not investigate the present case properly, she had not gone with prosecutrix to the places where both of them lived together. She also did not make the witness of the neighbours who lived alongwith the accused and prosecutrix. She also did not take the call details of the mobile phones of the accused, father and mother of the prosecutrix.
I have carefully perused and analysed the evidence on record. The testimony of PW9 - Prosecutrix as well as of PW10 - W/ASI Saroj Devi IO are on the record. On careful perusal and analysism their testimonies are found to be cogent, convincing and inspires confidence.
51 of 56 52 FIR No. 306/2010 PS Adarsh Nagar The fact that IO had not gone with prosecutrix to the places where both of them lived together. She also did not make the witness of the neighbours who lived alongwith the accused and prosecutrix. She also did not take the call details of the mobile phones of the accused, father and mother of the prosecutrix, does not falsify the case of the prosecution which is otherwise proved by clear, cogent and convincing evidence on the record.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
25. Ld. Counsel for the accused submitted that PW8 - Sh. Sachinder Yadav stated in his examinationinchief that he went to Ludhiana all alone but PW7 - Mrs. Vimla Devi, the mother of the complainant has stated that she alongwith her husband had gone to Ludhiana.
I have carefully perused and analysed the evidence on record. PW7 Mrs. Vimla Devi, mother of the prosecutrix and PW8 - Sachinder Nath Yadav, father of the prosecutrix clearly and in a natural manner deposed regarding the facts within their knowledge. Nothing more can be read in the said parts of their testimonies.
52 of 56 53 FIR No. 306/2010 PS Adarsh Nagar There are bound to be some discrepancies in the narration of witnesses when they speak out details. Moreover, these are merely the inconsistencies on the fringe without materially affecting the credibility of the evidence and do not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there 53 of 56 54 FIR No. 306/2010 PS Adarsh Nagar may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
The Hon'ble Supreme Court of India in case Leela Ram Vs. State of Haryana (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
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26. In view of above and in the circumstance, prosecution has thus categorically proved beyond shadows of all reasonable doubts that in December, 2009, PW9 - prosecutrix aged below 16 years (To be more exact 15 years 6 months and 16 days) was kidnapped from lawful guardianship of her parents by accused Jaswant Yadav @ Sonu after being called at his sister's (accused Ragini since discharged on 07/06/2012 by the Ld. Predecessor Court) house with the intention that she (PW9 - prosecutrix) may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse and with intent to cause that she may be secretly and wrongfully confined and during period from December, 2009 to July, 2010, accused Jaswant Yadav @ Sonu kept confined her at Mumbai, village Balkuan, PS - Hata, District Dewariya, UP and Ludhiana and committed rape upon PW9 - Prosecutrix at the aforesaid places.
I accordingly hold accused Jaswant Yadav @ Sonu guilty for the offences punishable u/s 363/366/365/376 IPC and convict him there under.
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27. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Jaswant Yadav @ Sonu in the commission of the offences u/s 363/366/365/376 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Jaswant Yadav @ Sonu beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Jaswant Yadav @ Sonu guilty for the offences punishable u/s 363/366/365/376 IPC, and convict him thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) on 21st th Day of February, 2013 ASJ/Spl. FTC N/W & Outer District Rohini, Delhi 56 of 56