Delhi District Court
Fir No:29/08; Ps Nand Nagri; U/S 376/506 ... vs . Babloo @ Sunil on 29 March, 2011
1
FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL
IN THE COURT OF SH. B.S. CHUMBAK:ADDL. SESSIONS JUDGE
DELHI
Case ID Number 02402R0234302008
Session Case No. 51/09
Assigned to Sessions 28/04/08
Arguments heard on 29/03/11
Date of order 29/03/11
FIR NO. 29/08
Police Station NAND NAGRI
Under Section 376/506 IPC
Out come of the judgment ACQUITTED
STATE VS BABLOO @ SUNIL
S/O RICHPAL
R/O H.NO. 78,
80 GAJ PLOT, MANDOLI
DELHI
Present: Sh. S.K. Dass Ld. Addl. PP for state.
Sh. Malkhan Singh Advocate on behalf of accused.
JUDGMENT
1. On 17.01.08 a case u/s 376/506 IPC was registered at PS Nand Nagri vide FIR no.29/08 on the basis of statement of Kumari Komal d/o Ramesh r/o H.No. 28, Gali no.8, Budh Vihar, Mandoli, Delhi against Babloo @ Sunil s/o Richpal r/o H.No. 78, 80 Gaj Plot, Mandoli, Delhi.
Page 1/23 2
FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL
2. Brief facts arising out of this case are that on 17.1.08 Kumari Komal stated that on 15.02.07 at about 10:30 a.m when her parents had gone for their work and her younger sister had gone to school, she was doing the work of cleaning her house after closing the door. In the meantime one Babloo @ Sunil who had been running a dairy and used to sell milk in her gali entered into her house through stairs. He put off her clothes. She resisted but Babloo @ Sunil closed her mouth and forcibly committed rape on her. He also extended threat in case she would narrate these facts to her family members he kill all of them. Due to fear she could not disclose this incident to her parents. Since then he several times committed rape on her and today i.e on 17.01.08 at about 11 a.m her mother had gone out of her house after bolting the door from outside and she was alone at her house. Babloo @ Sunil again entered to her house through staircase and attempted to commit rape on her. In the meantime her mother reached there after opening the door from outside and pushed Babloo @ Sunil and saved her from the clutches of Babloo @ Sunil. Babloo @ Sunil inspite of feeling guilty started quarreling with her mother and also extended threat of killing their family members. She narrated whole incident to her mother. Accused Babloo @ Sunil last time committed Page 2/23 3 FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL rape on her about 15-20 days ago. Her mother narrated whole incident to her father. Her father took her at PP Harsh Vihar. On the basis of aforesaid statement of prosecutrix she was got medically examined at GTB hospital vide MLC no. B-240/08. One glass slide and sealed parcel containing pubic hair were taken in possession. On her internal examination Dr. opined "hymen torn old tear" and on her statement present case was registered.
3. Investigation of this case was assigned to SI Radha Pandey. Vaginal slide and sealed parcel containing pubic hair was taken in possession, site plan was prepared, school leaving certificate of Kumari Komal was seized wherein her date of birth was mentioned as 26.05.94. Steps to trace the accused were taken. Statement of witnesses u/s 161 Cr.P.C recorded. Statement of prosecutrix u/s 164 Cr.P.C was got recorded.
4. Accused surrendered himself on 21.1.08 in the court of Shailender Malik, Ld. MM. Accused was arrested after seeking order of ld. MM. Kumari Komal in her statement u/s 164 Cr.P.C stated that from 15.2.07 till 16.1.08 accused committed rape, five times on her and on 16.1.08 he committed rape on her Page 3/23 4 FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL last time and on that day she was got apprehended by her mother. Accused was got medically examined at Deen Dayal Hospital. One sealed parcel containing blood gauge and one sample seal (MLC DDU) taken in possession. During medical examination of accused it is opined that "there is no evidence which can say that accused is not capable of performing sexual activity." Statement of witnesses were recorded and result of CFSL was kept pending and after completion of all the necessary investigation challan u/s 173 Cr.P.C was presented in the court of Ld. MM.
5. Ld. MM after taking cognizance for the offence supplied the copies of the challan to the accused as provided u/s 207 Cr.P.C and committed the case to the court of Sessions and on turn allocated to this court for trial. Thereafter case was fixed for arguments on charge.
6. After hearing arguments and on perusal of the material placed on record charge for the offence u/s 376/506 IPC was framed against the accused person to which he pleaded not guilty and claimed trial, thereafter case was fixed for prosecution evidence.
Page 4/23 5
FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL
7. Smt. Sunita mother of deceased appeared as (PW1), Raj Kumar, maternal uncle of prosecutrix as (PW2), Kumari Komal prosecutrix as (PW3), Lct. Raj Kumari as (PW4), Dr. Kanika Aggarwal, Sr. Resident of GTV hospital as (PW5), Ct. Surender Kumar as (PW6), SI C.P. Singh as (PW7), HC Subash Chand as (PW8), Dr. R. Kohli as (PW9), HC Uday Veer Singh as (PW10), SI Radha Pandey as (PW11) and Sh. Vipin Kumar Rai, Addl. Co-Ordinator, Delhi High Court Arbitration Centre appeared as (PW12), thereafter no PW was left to be examined, therefore, prosecution evidence was closed.
8. Brief testimony of all the PW's are as follows:
(i) PW1 is the mother of prosecutrix and deposed that on the day of incident she was ill with Jaundice and is an illiterate lady, therefore, she is unable to recollect the date and month of incident however, it is the incident of at about 10 to 11 a.m of year 2008. She further deposed that on the day of incident at about 10 to 11 a.m her daughter Komal aged about 14 years was present at her house and she directed her to do the house hold work and she herself had gone to collect neem tree leaves after bolting door from outside.
Accused present in the court correctly identified entered in her house through the roof of other houses and her staircase. When she returned and opened the gate from outside she saw the accused and her daughter Komal in naked Page 5/23 6 FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL position. He daughter Komal was got laid on a cot already available in her house and accused was lying over her daughter Komal. On seeing her accused get frightened but due to illness she could not understand as to what she should do. She further deposed that her husband had already gone to work and when he returned back she narrated the whole incident to him. She also informed about the incident to her brother Raj Kumar and her Nandoi Sukhbir. She further deposed that accused again came to her house at 9:00 p.m under the influence of liquor and tendered his apology in the presence of his husband and Nandoi Sukhbir, when the apology tendered by him was not accepted then accused came out and started crying outside her house while saying that "call my father" and "call all the gundas" and also extended threat to see all of their family members. Accused also abused all of them and extended threat of killing her brother. She alongwith her daughter Komal and her brother Raj Kumar went to PS Nand Nagri and got the statement of her daughter recorded. Her statement and statement of her brother was recorded. Her daughter Komal was got medically examined. She handed over the school leaving certificate of her daughter Komal wherein the date of birth of her daughter was mentioned as 26.05.94 which was seized by the IO vide memo Ex.PW1/A bearing his signature at point A. Certificate is Ex. PW1/B. Page 6/23 7 FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL During her cross examination she stated that Annu is her youngest daughter and studying in 5th standard in Saraswati Public Secondary School at Budh Vihar, Mandoli. Her son Akshay is two/two and half years elder to Annu. She also stated that her daughter Komal never told her about the visits of accused Babloo prior to 16.1.08. She further stated that she did not know who had handed over the certificate Ex.PW1/B to the police. She denied the suggestion that age of her daughter Komal was about 21/22 years on the day of her examination. She also confronted from her statement on the point that she had stated before the police the age of her daughter as 14 years as it was not so recorded in her statement. The factum of apprehending the accused and prosecutrix Komal in naked condition is also confronted as it was not so got recorded by her. She also confronted from her statement to the fact that accused again came to her house on the same day at about 6 p.m after taking liquor and tendered apology in the presence of his husband and Nandoi Sukhbir. She also denied the suggestion that her daughter Komal used to write letters to the accused and she also admitted that Raj Kumar is her real brother and is posted as HC in Delhi police. She denied the suggestion that accused has been falsely implicated at the instance of her brother Raj Kumar. Rest of her testimony is reiterated by her as submitted by her during examination in chief.
Page 7/23 8
FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL
(ii) PW2 is the maternal uncle of prosecutrix and deposed that on 17.1.08 his sister Sunita informed him that one Babloo committed rape upon Komal. On receipt of this information he alongwith his brother in law reached there at about 7:30 to 8 p.m and accused was standing near the main gate of the house of his sister. He asked from the accused as to how he dared to commit rape with Komal. He started abusing him and also extended threat of killing him. On seeing the behaviour of the accused he alongwith Komal and his sister Sunita went to PS Nand Nagri and got the statement of prosecutrix Komal recorded. Prosecutrix Komal was got medically examined at GTB hospital. Statement of Komal was got recorded. He also identified the accused present in the court.
During his cross examination he deposed that on the day of incident he was posted at police head quarter, Delhi. Police official interrogated him with regard to this case but his statement was not recorded. (statement mark DX is shown to the witness on which he stated that he was interrogated by the police and the facts mentioned in his statement are correct but IO had not recorded the same in his presence).
Page 8/23 9
FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL
(iii) PW3 is the prosecutrix and deposed that she studied up to 5th standard. Thereafter, she left school and started helping her mother in house hold work. She further deposed that on 15.02.07 at about 10:30 a.m she was present at her house. Her parents had gone for work and her younger sister had gone to school. She was cleaning her house after bolting the door of her house. In the meantime Babloo reached in her house through staircase and forcibly committed sexual intercourse with her. She tried to save herself by raising voice but accused put his hand on her mouth. He forcibly committed rape and also extended threat of killing her in case she would disclose this fact to anyone. She further deposed that after 15.02.07, many times accused committed rape on her but due to fear she had not disclosed this fact to anyone. Again in the month of January 2008 at about 11 a.m when she was present at her house, her parents had gone for their work accused Babloo again entered in her house through staircase and attempted to commit rape on her, in the meantime her mother reached there and rescue her. Instead of feeling guilty accused Babloo extended threat on her mother and also started quarreling with her. He also extended threat of killing their family members. She narrated the incident to her parents at about 7 p.m. Her father took her to PP Harsh Vishar. She narrated the whole incident to police official. She was was taken to GTB hospital for her medical examination. Her statement Page 9/23 10 FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL Ex.PW3/A was recorded. Case was registered, accused was arrested vide arrest memo Ex.PW3/B. After three/four days of the incident her statement u/s 164 Cr.P.C was recorded and she also identified her signature on the statement Ex.PW3/C. She further deposed that on 15.2.07 accused raped her at first instance. On the last day of incident accused also had taken out her clothes. She further stated that fifteen twenty days prior to last date of incident accused committed raped upon her and accused used to remain at her house for about one/one and half hour every time when he committed rape on her. During her cross examination she stated that she started leaving with her parents one year prior to this incident and prior to that she used to live at the house of her Bua and accused was not known to her prior to the incident dated 15.02.07. Her younger sister used to purchase milk from the accused and her younger sister namely Anu is eight years younger to her and she was studying in 5th class in this year i.e 2009. She had two brothers namely Amit aged 13 years and Akshaya aged 11 years but they both are residing at her native village and both the brothers are younger to her and both the brother's are studying in 6th/7th class respectively and she also studied in the same school upto 4th standard till the year 2003 and she took admission in 5th class in a school at village Savari, Muzaffar Nagar and studied there for a year. She Page 10/23 11 FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL also admitted that she appeared in 10th class examination through open school at Zafarabad, Delhi. She further stated that name of her native village is Khera Hatana, District Baghpat, UP and she studied there upto 4th standard. She also admitted that her maternal uncle is working as HC in Delhi police and her parents informed her maternal uncle when she was taken to PP Harsh Vihar and her maternal uncle was present with them at PP Harsh Vihar. She further stated that she cannot tell that on the basis of which documents her date of birth was recorded in the school record. She further stated that her brother Amit is studying in 8th standard and Akshaya is in 7th standard and Amit is elder to her sister Anu. She further stated that from 15.2.07 to 16.1.08 accused visited her house about 18/19 times and committed sexual intercourse with her and every time accused used to visit before noon. She further stated that accused did not continue to keep her mouth closed till he used to stay at her house. Two letters addressed to Babloo were produced in the court and shown to the witness (one letter dated 16.02.06 and she admitted that letter dated 16.2.06 addressed to accused in her own handwriting and was written by her which is Ex.PW3/DA and another letter dated 15.1.06 addressed to accused is also in her own handwriting and was written by her which is Ex.PW3/DB. Rest of her testimony is reiterated by her as submitted by her during examination in chief.
Page 11/23 12
FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL
(iv) PW4 deposed that on 17.1.09 on receipt of an information through PCR she went to PP Harsh Vihar. On reaching there prosecutrix Komal alongwith her mother were present at PP Harsh Vihar and as per direction of IO SI Anuradha Pandey she took the prosecutrix to GTB hospital for her medical examination. Doctor handed over three sealed pullandas to her which she handed over to IO alongwith copy of MLC and prosecutrix remained in custody till 8 a.m. During her cross examination she reiterated her testimony as submitted by her during examination in chief.
(v) PW5 is the doctor who identified the signature of Dr. Shweta P Mohanty who had medically examined patient Komal vide MLC No. B-240/08. She identified her signature at point X on the MLC Ex.PW 5/A. As per history mentioned on the MLC Komal was brought at GTB Hospital on 17/1/08 at about 1.15 P.M by Sunita, mother of prosecutrix with the alleged history of rape. On examination she was conscious, her vitals were stable. Per abdominal examination it was found soft, no injury or scar mark was seen on whole body. On local examination her hymen was found torn (old tear). Page 12/23 13
FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL During cross examination she admitted that MLC was not prepared in her present.
(vi) PW6 deposed that on 25.1.08 he joined the investigation of this case with SI Radha Pandey. He went o Tihar Jail, Delhi and took accused Babloo @ Sunil for the purpose of medical examination and from there he was taken to DDU hospital and was got medically examined. Doctor preserved sample of blood which was seized by the IO vide memo Ex.PW6/A.
(vii) PW7 deposed that on 21.1.08 investigation of this case was assigned to him. On that day accused Babloo @ Sunil had surrendered before the court of Ld. MM. He was identified by the prosecutrix and after his identification he moved an application before the concerned court for seeking arrest of the accused and accordingly, he formally arrested the accused in this case vide arrest memo Ex.PW3/B. Statement of prosecutrix u/s 164 Cr.P.C was got recorded. He also obtained the copy of statement of prosecutrix u/s 164 Cr.P.C. He also recorded statement of prosecutrix under section 161 Cr.P.C and her custody was given to her mother. He handed over the file to SHO and further investigation was conducted by SI Radha Pandey. Page 13/23 14
FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL During cross examination he reiterated his testimony as submitted by him during examination in chief.
(viii) PW8 is the formal witness who recorded formal FIR no. 29/08 u/s 376/506 IPC on the basis of rukka sent by SI Radha Pandey. Copy of FIR is Ex. PW 8/A and endorsement on the rukka is Ex.PW8/B.
(ix) PW9 is the doctor who examined the accused and deposed that on 25.01.08 accused Babloo @ Sunil was brought to DDU hospital for his medical examination to ascertain whether he was capable of performing sexual activity or not and after his examination he found that there was no evidence which can suggest that accused was not capable of performing sexual activity. MLC no. PW9/A bearing his signature at point A. He further deposed that semen sample could not be collected only blood sample was collected which was sealed and handed over to IO.
(x) PW10 deposed that in the intervening night of 16-17/1/08 he was working as DD writer from 8 p.m to 2 a.m at PP Harsh Vihar and at about Page 14/23 15 FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL 10:40 p.m prosecutrix Komal alongwith her mother reached there and filed a complaint against Sunil @ Babloo with the allegation that she was raped by him. He recorded her statement vide DD no.32 and copy of the same was marked to SI Radha Pandey for further investigation. Prosecutrix was sent to GTB hospital alongwith lady Ct. Raj Kumari. She also brought the original DD register and copy of the relevant entry is Ex.PW10/A (original seen and returned).
(xi) PW11 is the IO of this case and she deposed that on 17.1.08 investigation of this case was assigned to her. She went to GTB hospital and found prosecutrix Komal with lady Ct. Raj Kumari, her mother and her father at GTB hospital. She recorded statement of prosecutrix Komal vide memo Ex. PW3/A. Lady Ct. Raj Kumari return back to the PS with the prosecutrix after her medical examination and handed over the MLC and exhibits duly sealed with the seal of MLC GTB. She seized the sealed pullanda and the sample seal vide memo Ex. PW11/A. She made her endorsement Ex. PW11/B and prepared a rukka and handed over to DO for registration of the case. After registration of the case duty officer handed over her the copy of FIR and Page 15/23 16 FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL original rukka. Site plan Ex. PW11/C was prepared at the instance of prosecutrix. School leaving certificate was also taken in possession from the mother of prosecutrix vide memo Ex. PW1/A as per school leaving certificate date of birth of prosecutrix was 26/5/1994. She searched for the accused but he could not be traced. She recorded statement of witnesses and also got recorded her statement u/s 164 Cr.P.C on 21.01.08. She also verified her school leaving certificate from Kanya Gurukul Junior High School Murad Nagar . Certificate is Ex. PW1/B. She further stated that on 21.1.08 accused Babloo @ Sunil had surrendered before the court of Ld. MM and was formally arrested by SI C.P Singh. Accused was also got medically examined at DDU hospital after seeking production warrant from the concerned court. Doctor who had examined the accused handed over him one sealed pullanda and one sample seal which was seized vide memo Ex. PW6/A. She also recorded statement of witnesses . The case properties were sent to FSL. FSL report is Ex. PX and after completion of investigation challan she presented the challan in the court of Ld. MM.
During her cross examination she admitted that she had not obtained any Page 16/23 17 FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL certificate showing thereby that prosecutrix had studied before Gurkul Kanya Vidayala. Rest of her testimony is reiterated by her as submitted by her during examination in chief.
(xii) PW12 is Ld. MM who recorded statement of prosecutrix u/s 164 Cr.P.C. Statement is Ex. PW8/C. Thereafter no PW was left to be examined, therefore, prosecution evidence was closed and case was fixed for examination of accused u/s 313 Cr.P.C
9. During the course of examination of accused u/s 313 Cr.P.C he controverted all the allegations as alleged against him and submitted that he was innocent and falsely implicated in this case. He further submitted that prosecutrix Komal used to sent him love letters thereby she had shown her willingness to get marry with him. Letters written by her are already Ex.PW3/DA and PW3/DB. Both are dated 10.2.06 and 15.1.06 and when he refused, she with the sole aim to put pressure upon him to get marry with her and with the collusion of her parents and maternal uncle Raj Kumar falsely implicated him in this case. He also desire to lead defence evidence, Page 17/23 18 FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL therefore, case was fixed for defence evidence.
10. Sh. Naresh Aggarwal, Manager in Saraswati Public Secondary School, Budh Vihar, Mandoli, Delhi appeared as DW1 and produced the record pertaining to admission of Ms. Annu d/o Sh. Ramesh in his school on 19.4.05 wherein date of birth of Kumari Annu is mentioned as 6.6.98. Relevant entry of Annu at sl. no. 1 of class 6th is Ex.DW1/A. The certificate issued by Mrs. Santosh Aggarwal of aforesaid school is Ex. DW1/B bearing her signature at point A. During his cross examination he admitted that name of Annu appears at sl. no. 1248 dated 19.4.05. Photocopy of the admission form Ex.PW1/C is also produced (original seen and returned). He also admitted that date of birth of child was recorded only on the basis of declaration furnished by parents. Neither MCD birth certificate nor any affidavit with regard to date of birth of child was submitted as per school record at the time of seeking admission of Annu. Thereafter, defence evidence was closed and case was fixed for final arguments.
Page 18/23 19
FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL
11. I have heard the arguments on behalf of Ld. Addl. PP for state and Ld. Counsel for accused.
12. Ld. counsel for accused submitted that before convicting the accused under any penal of law it is the duty of the prosecution to prove its case beyond reasonable doubt and in the present case not even an iota of evidence to disclose the ingridents of the offence as alleged against the accused are brought on record by the prosecution.
13. In support of his contention it is submitted that letters admittedly written by prosecutrix which are exhibited as Ex.PW3/DA and Ex.PW3/DB clearly goes to show the consent of the prosecutrix to join the company of the accused person and to establish sexual relationship with the prosecturix rather further goes to show that she also shown her willingness to get marry with him without attaining the age of majority i.e 18 years. No specific proof of age is brought on record by the prosecution showing therein that on the day of incident she was less than 16 years however, on furnishing the evidence Page 19/23 20 FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL adduced by the prosecution as well as by the prosecutrix it is established that Annu is the younger sister of prosecutrix and she is eight years younger to her. The age of Annu is also not specifically proved as she was also got admitted only on the basis of furnishing declaration by her father but even otherwise if it is presumed to be correct then also on the day of incident age of the prosecutrix cannot be taken as less than 16 years rather she was about 17 years old. Proof of age as collected by the IO could not be proved due to the reason that the principal of school who had issued a School Leaving Certificate of the prosecutrix could not be examined despite repeated opportunities given to him. However, the process returned with the remarks that the school building is totally demolished and the school is not in operation. In such circumstances, it is established that prosecution totally failed to prove the age of the prosecutrix as less than 16 years. There are other material contradictions brought on record by the prosecutrix as well as other prosecution witnesses and in view of the aforesaid discussion it is established that prosecution totally failed to prove its case beyond reasonable doubt against the accused and requested for his acquittal. Page 20/23 21
FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL
14. On the contrary Ld. Addl. PP for state submitted that school leaving certificate allegedly issued by the Principal Vaidik Kanya Junior High School, Gadhmalpur, Sangri, District Mujaffar Nagar, UP is sufficient to prove the age of the prosecutrix as in the said certificate her date of birth is mentioned as 26.05.94. The offence was committed initially on 15.2.07 and thereafter it was being continuously committed till 16.1.08 which clearly goes to show that prosecutrix was less than 16 years on the day of commission of offence and in such circumstances the elements of consent as contended by Ld. Counsel for accused shall not prove fatal to the prosecution. The prosecutrix is also examined as PW3 and she during her examination before the court specifically stated that she has been raped forcibly without her consent. She was got medically examined and the scientific evidence again establishes that she was raped continuously due to that her hymen was found torn and in the such circumstances it cannot be said that prosecution failed to prove its case against the accused, therefore, requested for conviction of the accused.
15. After hearing arguments and taking into consideration the facts and circumstances of this case, averments mentioned in both the letters Page 21/23 22 FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL Ex.PW3/DA, Ex. PW PW3/DB and the evidence discussed above I am of the considered view that no specific proof of age of the prosecutrix is brought on record by the prosecution however, in view of the testimony of prosecutrix herself wherein she stated that her younger sister Annu is eight years younger to her and on the day of incident as per evidence produced by the prosecution younger sister of prosecutrix was more than nine years old and after adding eight years it is established that prosecutrix was more than 16 years old on the day of commission of the offence. This fact is further corroborated on perusal of the averments mentioned in both the letters discussed above wherein she stated that she cannot wait for two years to attain the age of 18 years which clearly goes to show that on the day she wrote both the letters she was more than 16 years of age. The consent is duly proved. On perusal of the contents of the letters prosecutrix admitted having been written by her in favour of accused. In such circumstances, I am of the considered view that prosecution totally failed to prove its case beyond reasonable doubt against the accused person and no ingridents which are required to prove the offence u/s 376/506 IPC are brought on record.
Page 22/23 23
FIR NO:29/08; PS NAND NAGRI; U/S 376/506 IPC ; STATE VS. BABLOO @ SUNIL
16. Accordingly, accused Babloo @ Sunil is acquitted for the offence as alleged against him u/s 376/506 IPC.
17. The bail bond/ surety bond furnished by the accused shall remain in force till the expiry of six months and accused is further directed to appear before the appellant court, if he is required to appear before the appellant court in view of the provision of Section 437A Cr.P.C. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (B.S. CHUMBAK)
DATED Dt.29th March 2011 ASJ-3 (North-East) KKD
DELHI
Page 23/23