Delhi District Court
State vs . 1. Raj Kumar on 21 July, 2010
IN THE COURT OF Dr. KAMINI LAU : ADDL. SESSIONS
JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI
Session Case No. 321/06
Unique Case ID No. 02401R0125792005
State Vs. 1. Raj Kumar
S/o Sewa Ram
R/o Village Thana, PS Dhanari
Tehsil Gannour,
Zilla Badayun, UP
(Convicted)
2. Parmod Paswan
S/o Arjun Paswan
R/o Jhuggi No B-43,
Sant Ravi Das Camp,
Vikas Puri, Delhi
(Acquitted)
3. Chhota @ Bijender
S/o Shiv Pal
R/o Jhuggi No. W-63/105,
Sant Ravi Das Camp,
Vikas Puri, Delhi
(Acquitted)
4. Sheela
W/o Sewa Ram
R/o Village Thana, PS Dhanari
Tehsil Gannour,
Zilla Badayun, UP
(Acquitted)
5. Sunil S/o Rameshwar
R/o Jhugi No. W-63/26,
Ravidas Camp,
Vikas Puri, Delhi.
(Proclaimed Offender)
St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 1 of 25
6. Sewa Ram S/o Babu Ram
R/o Village Thana, PS Dhanari
Tehsil Gannour, Zilla Badayun,
Uttar Pradesh
(Proclaimed Offender)
FIR No. 622/03
Police Station : Vikas Puri
Under Section : 363/366/376/34 Indian Penal Code
Date of committal to Sessions Court : 3.7.2004
Arguments heard on : 2.6.2010
Late date for filing the written synopsis : 2.7.2010
Date of decision : 7.7.2010
JUDGMENT
As per the allegations, on 29/30.12.2003 the accused Raj Kumar, Pramod Paswan and Chhota @ Bijender along with their associate Sunil (Proclaimed Offender) kidnapped the prosecutrix 'A' (name of the prosecutrix is withheld since this is a case under Section 376 IPC) aged 12 years when she was playing in the District Park at about 5:30 pm, from the lawful guardianship of her parents without their consent. Further, they took the prosecutrix to village Patri, PS Dhanari, U.P. with intent to get her married with Raj Kumar or that she may be forced or seduced to illicit intercourse or knowing it likely that she may be forced or seduced to illicit intercourse with accused Raj Kumar. Also as per the allegations the accused Raj Kumar had committed rape upon the prosecutrix 'A' from 29.12.2003 to 29.2.2004. In so far as the accused Sheela is concerned, it is alleged that on 8.2.204 she facilitated her son Raj Kumar to get married with the prosecutrix St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 2 of 25 without her consent and to commit rape upon her and in consequence of that, the marriage was performed with the prosecutrix and rape was committed upon her at village Patri, PS Dhanari, U.P. BRIEF FACTS :
Case of the Prosecution:
The case of the prosecution is that on 31.12.2003 one Ram Khilawan had lodged a missing report at police Station Vikas Puri stating that his daughter 'A' aged 12 years old is missing from the house. He had also told the police that one Raj Kumar who was also residing in the same area was also missing and therefore, he raised suspicion upon him. Pursuant to the same, initially the present FIR was registered under Section 363 Indian penal Code. Thereafter on 26.2.2004 SI Narottam Singh, Ct. Om Prakash and the complainant Ram Khilawan raided the house of the accused Raj Kumar at village Thana, PS Dhanari, U.P. with the help of local police where they found the prosecutrix 'A'. Both the prosecutrix and the accused were brought back to Delhi where the prosecutrix was got medically examined and her statement was recorded wherein she has stated to the police that the accused persons had taken her forcibly and the accused Raj Kumar committed rape upon her. On the basis of the said statement the provisions of Section 376 IPC were added and the accused persons namely Raj Kumar, Pramod Paswan, Chota and Sheela were arrested. The accused Sunil and Sewa Ram are absconding and they have been declared proclaimed offenders.
St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 3 of 25 CHARGE:
The record reveals that after hearing the arguments vide order dated 10.8.04 the Ld. Predecessor of this court has settled charges under Section 376 IPC against accused Raj Kumar and charges under section 363/366/34 IPC against accused Raj Kumar, Parmod Paswan, Chhota @ Bijender to which they pleaded not guilty and claimed trial. Further, charges under Section 109/366/376 IPC were also settled against the accused Sheela to which she pleaded not guilty and claimed trial.
EVIDENCE :
In order to prove its case the prosecution has examined as many as 16 witnesses :
Eye witnesses/pubic witnesses:
PW1 is the prosecutrix 'A' who is unable to tell the date, month and year when the alleged incident happened with her but has deposed that she was taken away by the accused Raj Kumar and the other accused Parmod, Chhota and Sunil and was forced to sit in the bus from Uttam Nagar. According to her, she was taken to village Patariya to the parents of Raj Kumar but she cannot tell the district of the village Patariya is situated. She has deposed that accused Sheela who is the mother of accused Raj Kumar, had taken her to the court and threatened and forced her to marry Raj Kumar after which she was forced to marry with Raj Kumar and she was taken to Bombay. She has further deposed that she was kept in Bombay for about one month and again she was brought to village Patariya. According to her, after about two months of her missing, her father along with police had reached St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 4 of 25 village Patariya and she was brought to Delhi. She has specifically testified that the accused Raj Kumar had committed rape upon her in Bombay as well as in village Patariya against her will and consent. The prosecutrix has also deposed that on the day of alleged incident she was playing on the road from where she was taken and at that time she was 12 years old. She has further deposed that she is illiterate. She has also stated that she was taken to DDU hospital where she was medically examined and her underwear was seized. PW1 has further deposed that she was produced before the Ld. MM where her statement was got recorded which is Ex.PW1/A. She has identified all the accused persons in the court as well as the case property i.e. her underwear which is Ex.P-1.
In her cross-examination the witness has deposed that she did not know the accused Raj Kumar prior to the incident but she knew the accused Pramod who was residing near her house. She has deposed that she did not raise alarm when she was being kidnapped by the accused persons as she was scared. According to her, there was no passenger in the bus and she tried to raise alarm in the bus but could not do so as the accused persons did not allow her to raise alarm. She has admitted that railway station was very crowded and accused persons had not put their hands on her mouth but she did not raise any alarm. She has deposed that she was very scared as the accused persons had been threatening her. The witness has also deposed that she did not notice any arms i.e. knife etc. in the hands of any of the accused persons. She has further deposed that several women of the village came to see her and she was introduced by accused Sheela as daughter of her sister. She St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 5 of 25 has admitted that she was kept lovingly and properly by the accused Raj Kumar and Sheela and their family and that she was given sarees to wear by accused Sheela. PW1 has also admitted that there was no toilet inside the house of accused Raj Kumar and they had to go outside the house but she never raised alarm. She has admitted as correct that she was taken to District Court Badayun by Sheela and Raj Kumar where she was produced before District Magistrate Badayun. According to her, she had given her statement before the District Magistrate under pressure of accused persons. She has deposed that she did not tell the District Magistrate that she had been kidnapped or raped by the accused. She has admitted her thumb impressions on her statement mark 1-A and affidavit mark 1-B filed before the District Magistrate Badayun. According to the witness, she was also given glass bangles by accused Sheela to wear and she was taken to Bombay for Honeymoon after two days of marriage where the father of the accused resides in Dandi, Bombay. She has deposed that there were many other quarters adjoining the quarter of the father of accused where they stayed for one month and the father of the accused treated her as his daughter-in-law. PW1 has further deposed that she went with Raj Kumar for outings in Bombay. She has admitted that she was introduced as the wife of Raj Kumar to his male and female friends at Bombay and she did not object to the same.
PW6 Ram Khilawan is father of the prosecutrix. He deposed that it was about two years back on 29th of the month his daughter 'A' was missing from the house who was 12 years old at the relevant time. He has stated that he cannot tell the date, month St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 6 of 25 and year in which she was born but has deposed that she was born in Bihar. According to PW6, he lodged the report at the PS on 30th of the month and tried to trace his daughter for about two months after which. He has deposed that he alongwith the police had gone to Patariya at UP after two months of his daughter went missing from the house, where the accused Raj Kumar had kept his daughter and she was found from his possession. He has further deposed that the accused Chhotu and Parmod were also present at the spot from where his daughter was recovered and accused Sheela who is mother of accused Raj Kumar had taken his daughter by enticing her. He has stated that his daughter 'A' is illiterate and she was born at home. According to PW6, he has seven children and his elder child is son Ranga Ram is aged about 25 years; daughter Lalda is on second number is aged about 23½ years; thereafter his daughter Rambha is at 3rd number after which the prosecutrix 'A' was born.
In his cross-examination PW6 had stated that his daughter 'A' never went to any kothi for doing household work. According to him, he knows one Kalicharan who is residing in his neighbourhood and accused Parmod was apprehended with the help of Kalicharan. He has denied the suggestion that his daughter 'A' had left the house prior to present case also or her daughter used to run away from the house and had forced accused Raj Kumar to marry with her. He has also denied that he wanted to get his daughter marry with one old person and it is for this reason she had run away from the house with accused Raj Kumar. He has further denied that he demanded Rs.50,000/- for not registering the case against the accused persons.
St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 7 of 25 Medical witnesses:
PW3 Dr. Yogesh has deposed that on 3.3.04 he had examined the X-ray plates of patient 'A' for conducting ossification test. He has proved his report which is Ex.PW3/A and has deposed that after examination he gave his opinion that bone age of patient 'A' is more than 14 years but less than 16 years.
PW4 Dr. Preety has deposed that on 29.2.04 she was posted at DDU hospital as Sr. Gynae. On that day 12 years old girl namely 'A' D/o Ram Khilawan was brought for medical examination with the history of sexual assault. She has deposed that 'A' herself told that she got married two months ago without the consent of her parents and had been living with her husband since then and that she attained menarchy on 24.2.04. The witness has proved that on examination no abnormality was detected and no external marks of injury were seen. On local examination also no marks of injury were seen hymen was not found intact and there was no tear, laceration or abrasion. PW4 has deposed that the slides were prepared from vaginal smears of the prosecutrix and her undergarment and sides were sealed and were handed over to lady Ct. Krishna. She has proved her detailed report on the MLC which is Ex.PW4/A. PW7 Dr. R.K. Mehta has deposed that on 1.3.04 Raj Kumar S/o Sewa Ram was brought into the hospital by Ct. Mundegyan Dev as per order of Sh. Vinod Yadav, Ld. MM, Tis Hazari Court for his bony age determination. According to him, on examination he found the patient was conscious and well oriented and on his local examination he found no external injury upon him. Thereafter he advised X-ray for his bony age St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 8 of 25 determination. He has proved the MLC No. 1787/04 of the accused which is Ex.PW7/A. PW8 Dr. Udai Kumar Singh has deposed that on 29.2.2004 the prosecutrix 'A' aged approximately 12 years was brought into the hospital for her medical examination and bony age determination. According to him, on her local examination, no fresh external injury was seen and her vitals were stable and the patient was thereafter referred to Gynae, DOD for expert opinion.
PW8 has testified that he also advised her X-ray for bony age determination. He has proved the MLC of the prosecutrix which is Ex.PW8/A. PW9 Dr. P.K. Jain has deposed that on 1.3.2004 he had examined the X-ray plates pertaining to ossification test of patient Raj Kumar S/o Sewa Ram. He has proved his detailed report Ex.PW9/A according to which the patient Raj Kumar was between 18 to 21 years.
PW11 Dr. Nishu Dhawan has deposed that he was working as CMO in DDU hospital on 29.204 Dr. Rajesh Yadav was working as Sr. Resident at the relevant time under his control. According to the witness, had seen Dr. Rajesh Yadav writing and signing various documents during the course of his employment and Dr. Rajesh Yadav has left the services of DDU hospital and his current address was not available in the hospital record. The witness has proved the MLC of accused Raj Kumar dated 29.2.04 which is Ex.PW10/A according to the which on local examination both testies were found normal in size, right testies was found lower than left and all secondary sexual characters are developed. There was nothing to suggest that accused cannot perform sexual St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 9 of 25 activities. Semen sample and under garments were sealed and stamped and handed over to Const. Om Parkash.
Police witnesses/ official witnesses:
PW2 ASI Lakh Ram was the duty officer who has proved that on 31.12.2003 at about 6.55 pm Ram Khilawan Mauji had come to police station and got recorded his statement on the basis of which he had recorded formal FIR, copy of which is Ex.PW2/A which he handed over to SI Narottam Singh for further investigation.
PW5 W/Ct. Krishna is a formal witness who has deposed that on 29.2.2004 she had taken the prosecutrix 'A' to the DDU Hospital for her medical examination after which the sealed exhibits which she received were handed over to the IO who seized them vide memo Ex.PW5/A. According to her, the sealed exhibits remained intact in her possession and were not tampered in any manner.
PW12 WSI Sunita Dutta has deposed that on 2.3.04 on the directions of SHO, investigation of this case was handed over to her pursuant to which she sent lady Ct. Sunita for getting the Urine pregnancy test and bone age of prosecutrix but the test could not be carried out as it was Mohram and the doctor gave another date. On 3.3.04, she deputed lady Ct. Krishna to get the said test conducted from DDU hospital. The Urine pregnancy test was reported to be negative and according to the doctor bone X- ray report would be made available later on subsequently. She has proved that the MLC of the prosecutrix was handed over to her by lady Ct. Krishna.
St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 10 of 25 PW13 HC Vijay Pal is the MHCM who has deposed that on 29.2.03 SI Narottam had produced 4 sealed pullandas alongwith sample seal and he made entry in this regard at Sr. No. 2121 in register no.19. On 14.504 the sealed pullandas were taken to FSL, Rohini by SI Narottam vide RC No 19/21/04 and thereafter he deposited the receipt with him. The witness has placed on record the copy of register no.19 which is Ex.PW13/A and copy of register no. 21 which is Ex.PW13/B. PW14 HC Om Prakash has deposed that on 26.2.04 he along with IO SI Narottam and the complainant Ram Khilawan left police station for Badayun, UP and on 27.2.04 they reached at Village Thana, PS Dhanari and they also taken with them the local police and raided at the house of accused Raj Kumar where they found the prosecutrix 'A'. Complainant identified her to be his daughter after which the prosecutrix was taken into possession vide memo Ex.PW14/A. Accused Raj Kumar was interrogated and arrested vide memo Ex.PW14/B and his personal search was conducted vide memo Ex.PW14/C. According to the witness, on the next day accused and the prosecutrix were produced in the court and transit remand of the accused was taken and they were brought to Delhi. He has proved that on 29.2.04 accused was medically examined and after medical examination doctors handed over two sealed pulandas sealed with the seal of DDU alongwith sample seal which he handed over to IO and seized vide memo Ex.PW14/D. PW15 SI Narottam Singh has deposed that on 31.12.03 Duty Officer handed over the copy of FIR of present case and investigation of same to him pursuant to which he met St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 11 of 25 complainant Ram Khilawan and made inquiries from him.
According to him, he searched for accused and prosecutrix but not found and he collected the address of accused Raj Kumar which was of village Thana, PS Dhanari, Distt. Badayun, UP. He has deposed that on 26.2.04 he along with Ct. Om Prakash and complainant Ram Khilawan left the police station for Badayun, UP and on 27.2.04 they reached at village Thana, PS Dhanari and they also taken with them the local police and raided at the house of accused Raj Kumar where they found prosecutrix 'A'. Prosecutrix was taken into possession vide memo Ex.PW14/A and accused Raj Kumar was arrested vide memo Ex.PW14/B and his personal search was conducted vide memo Ex.PW14/C. The witness has further proved that accused Sheela Devi had produced some photocopies of documents regarding marriage of prosecutrix 'A' and Raj Kumar which were seized vide memo Ex.PW15/A. On the next day accused and prosecutrix were produced in the court and transit remand of the accused was taken after which they were brought to Delhi. He has deposed that on 29.2.04 accused was medically examined and after medical examination doctors handed over two sealed pulandas sealed with the seal of DDU alongwith sample seal to Ct. Om Prakash which he handed over to him and seized vide memo Ex.PW14/D. PW15 has also proved that prosecutrix 'A' was also medically examined through Lady Ct. Krishna and after examination she handed over to him two pulanda sealed with the seal of DDU hospital and same was seized vide memo Ex.PW5/A. He has testified that on 10.3.04 accused and prosecutrix were produced before the Ld. MM and the accused was sent to judicial custody and he moved application to record St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 12 of 25 the statement u/s 164 Cr.P.C. of the prosecutrix 'A' which application is Ex.PW15/B and thereafter he obtained the copy of the statement vide application Ex.PW15/C. The witness has proved that after getting recorded statement of the prosecutrix further investigation of this case was handed over to W/ASI Sunita and on 19.4.04 case file was again handed over to him and he found that accused Sewa Ram, Sheela, Chhote @ Bijender and Sunil were not arrested till then and he took their NBWs. According to PW15, on 14.5.04 exhibits of this case were deposited by him in FSL and thereafter charge sheet was filed against accused Raj Kumar and Pramod.
He has further deposed that on 3.6.04 accused Sheela was arrested from Tis Hazari Courts as she had come to meet accused Raj Kumar, vide arrest memo Ex.PW15/D and her personal search was got conducted through Lady Ct. Anju vide memo Ex.PW15/E and she was sent to JC. According to him, on 4.6.04 accused Chhota @ Bijender was arrested on his surrender in Tis Hazari Courts, vide memo Ex.PW15/F and his personal search was conducted vide memo Ex.PW15/G and was sent to JC and supplementary charge sheet against them was filed. He collected the FSL result and filed in the court which is Ex.PX. Accused Sewa Ram and Sunil could not be arrested, so they were got declared proclaimed offenders and their supplementary charge sheet was filed.
PW16 SI Usha Sharma has deposed that on 28.3.04 investigations of this case was handed over to her and she perused the file and found that only accused Raj Kumar has been arrested till then and other accused are absconding. According to her, St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 13 of 25 on14.4.04 she along with complainant Ram Khilawan and Ct. Brijesh reached at jhuggi Ravidas Camp Vikaspuri from there at the instance of complainant they apprehended the accused Pramod who was interrogated and arrested vide memo Ex.PW16/A and his personal search was conducted vide memo Ex.PW16/B and he made disclosure statement which is Ex.PW16/C. She has also deposed that on 176.4.04 she handed over the case file to MHC(R).
PW10 Sh. Vinod Yadav Ld. MM has deposed that on 1.3.04 he was working as MM in Tis Hazari Courts. On that day IO moved an application for recording the statement of prosecutrix 'A' as the learned link MM's were on leave on that day. Thereafter he proceeded to record the statement of the prosecutrix. IO had identified the prosecutrix. According to him, as the prosecutrix appeared to be minor, he put certain questions to her to satisfy that she understood the proceedings and was in a position to give rational answers to the questions. After putting the questions he was satisfied that the prosecutrix was in a position to give rational answers but the oath was not administered as the prosecutrix was minor. He has proved having recorded the statement of prosecutrix which is Ex.PW1/A and the certificate below the statement of prosecutrix between point X to X. He has deposed that the proceedings were sent in a sealed cover to the concerned court and a copy of the statement also supplied to the IO on application of the IO which is Ex.PW10/A vide order dated 1.3.2004. The witness has deposed that on an application moved by the IO for sending the prosecutrix to Nari Niketan, he had handed over the custody of the prosecutrix to her father, vide order Ex.PW10/B. St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 14 of 25 Statement of accused/ defence evidence:
After completion of evidence of the prosecution, the statement of the accused persons Raj Kumar, Sheela, Chotte @ Bijender and Pramod have been recorded under Section 313 Cr.P.C. where all incriminating evidence has been put to them which they have denied. They have stated that they are innocent and have been falsely implicated in the present case. Accused Raj Kumar, Chotte @ Bijender and Pramod have chosen not to examine any witness in their defence. Only accused Sheela has examined one Tula Ram in her defence as DW1.
DW1 Tula Ram has deposed that he know Raj Kumar since he belongs to his village and the present incident pertains to 29.12.2003 when Raj Kumar come to the village alongwith the prosecutrix. According to him, he inquired about the prosecutrix from the accused Raj Kumar who told him that she had come with him with her sweet will and with her own accord. The witness has deposed that the mother of Raj Kumar is not involved in the abduction and kidnapping of the prosecutrix because she was in her village at that relevant point of time. According to him, Raj Kumar and the prosecutrix had come to the village alone and Sheela has not played any part in the abduction and kidnapping of the prosecutrix. DW1 has further deposed that the accused Raj Kumar and prosecutrix had gone to the local district court in order to get their marriage registered and the prosecutrix did not raise any hue and cry. He has stated that he came to know about the incident when the police came to the village for arresting Raj Kumar.
In his cross-examination the witness has deposed that St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 15 of 25 he has come at the instance of Raj Kumar. He has admitted that he had never stayed with Raj Kumar in Delhi and that he did not know the prosecutrix previously. According to him, he know her name because she has stayed in village a large number of days. He has also admitted that no marriage of the prosecutrix was solemnized in her presence in the village and that he has stated that the prosecutrix and Raj Kumar were married in the court on the basis of hearsay in the village. He has further admitted that he is unable to tell whether the prosecutrix was below or above 18 years of age.
FINDINGS:
The prosecution in order to discharge the onus upon them have examined 16 witnesses. I have gone through the testimonies of the witnesses and also considered the submissions made before me. Firstly the age of the prosecutrix is disputed. According to the prosecution, at the time of the incident the prosecutrix was less than 16 years of age whereas according to the accused she was a major. It is an admitted case that the prosecutrix is totally illiterate and as per the testimony of her father PW6 Ram Khilawan she was born in Bihar and therefore, there is no documentary record with regard to her date of birth and age. Under these circumstances, it is now for this court to ascertain the aged of the prosecutrix from the surrounding circumstances and the material on record. PW1 prosecutrix is unable to tell her exact date of birth. However, PW6 Ram Khilawan her father, has deposed that on the date of incident she was 12 years old. The ossification test was got conducted upon the prosecutrix which report Ex.PW3/A has been duly proved St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 16 of 25 PW3 Dr. Yogesh bearing his opinion according to which the age of the prosecutrix 'A' is more than 14 years but less than 16 years. This being so, the testimony of PW6 to this extent is liable to be excluded and I hereby hold that on the date of incident i.e. 29/30.12.2003 the age of the prosecutrix was between 14 to 16 years. It has, therefore, been proved by the prosecution that she was a minor.
Secondly in her examination in chief PW1 the prosecutrix 'A' has corroborated what she had earlier statement made to the IO that she had been taken away by the accused Raj Kumar and his friends Pramod. Chota and Sunil forced her to sit in a bus from Uttam Nagar from where she was taken to village Patariya and kept in the house of parents of Raj Kumar. According to the prosecutrix, she had been threatened by the accused Sheela who is the mother of accused Raj Kumar, to marry her son and after her marriage she was taken to Bombay where she was kept for one month in the house of Raj Kumar. According to her, the accused Raj Kumar had committed rape/ galat kaam upon her without her consent both at the village and also at Mumbai. However, in her cross-examination PW1 there are major contradictions. According to her, at the time of incident at about 5:30 pm she was playing with other children on the road whose name she has not been able to tell. She has alleged that she was taken by the accused from the house of her father in a public transport i.e. bus and thereafter in a train but all through in her journey she did not raise any alarm despite the fact that she had sufficient opportunity to do so. The relevant extract of her cross- examination is as under:
St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 17 of 25 "....... I had not raised alarm when I was being kidnapped by the accused persons as I was very scared. I was kidnapped from Block No. KG-2. There was no passenger in the bus but I had tried to raise alarm in the bus but could not do so as the accused persons did not allow me to raise alarm. The conductor and the driver also did not object to the activities of the accused persons in the bus.
Accused Raj Kumar had kept his hand on my mouth through the journey in the bus.
I had tried to put up a struggle but neither the driver nor the conductor had helped me. We travelled in the bus for one hour. For that one hour the bus even did not stop at red light. I cannot say whether it was a DTC bus or a private bus. We got down at Railway Station but I do not know which station was it and whether it was in Delhi or not. It is correct that Railway station was very crowded and accused persons had not put their hands on my mouth but I did not raise any alarm. I was very scared as the accused persons were threatening me.
I did not see any arms i.e. knife etc. in the St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 18 of 25 hands of any of the accused persons. We stayed at the railway station for about 10- 15 minutes when one of the accused persons had gone to purchase the tickets.
I was put in the train forcibly by the accused persons by picking me physically. I did not raise any alarm in the train also. When the public persons made enquiries as to why I was being forced to board the train accused Raj Kumar said that I am his sister and thereafter no one asked anything. We had boarded the train at 9:00 am and gt down at 12:00 noon in the midnight. I did not raise alarm at the railway station where I had got down. From that station we went to Baburala in the bus. There were many passengers in the bus but I did not raise alarm though there were many passengers in the bus......."
The prosecutrix further in her cross-examination has admitted that several women of the village came to see her but she did not raise any alarm. She has also deposed that she had been kept lovingly by the accused Raj Kumar and Sheela and their family and she was given proper food and no one had misbehaved with her. She has further admitted that she was given sarees by the accused Sheela to wear and that mother of accused Raj Kumar had St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 19 of 25 fallen sick during her stay of one month in their house and she used to cook at the house of accused Raj Kumar and also used to sit in the kitchen with the sister of accused Raj Kumar. The prosecutrix has also admitted that there was no toilet inside the house of accused Raj Kumar and they had to go outside the house for the same in night time but she never raised any alarm despite there being sufficient opportunity available to her.
The testimony of the prosecutrix to the extent that the conductor and driver of the bus did not object to the activities of the accused persons who had put their hand on her mouth through out the journey in the bus, does not inspire confidence. It is also not possible that the bus in which they had boarded did not stop at red lights for almost one hour. It is further not possible that the prosecutrix who was taken by accused Raj Kumar to his village in a train could have gone unnoticed in case if he had exercised any force upon her in the manner in which the prosecutrix has suggested. It has been specifically admitted by the prosecutrix that she was kept most lovingly by the accused Raj Kumar and Sheela and their family members and she had been given all necessities so much so when she went to Mumbai, she stayed at Dandi with the father of the accused in a quarter where the Bua/ aunt of the accused also resides and it is impossible that she would not have been noticed by other residents of the area where the prosecutrix and the accused Raj Kumar were staying in a quarter with their father. The prosecutrix has specifically admitted that she had been kept lovingly by the father of the accused and she went for outings at Beach where she was introduced as his wife. No explanation is forthcoming why she did not object to the same. It is writ large St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 20 of 25 from the testimony of the prosecutrix 'A' that she was a consenting party and under no circumstances can it be inferred that the accused Raj Kumar or his family had exercised any force upon her.
Thirdly this aspect regarding the prosecutrix 'A' being a consenting party gets strengthen from the fact that the prosecutrix and the accused had even gone to the District Court Badayun to get their marriage registered but even before the Hon'ble District Magistrate the prosecutrix did not raise any hue and cry which fact finds a corroboration from the cross- examination of the prosecutrix PW1 who has admitted the same but stated that she had given a statement before the District Magistrate under the pressure of the accused and that she also did not tell the Hon'ble District Magistrate that she had been kidnapped and raped by the accused. Further, the MLC of the prosecutrix 'A' which is Ex.PW4/A shows that while she was being medically examined the prosecutrix had told the doctor that she had herself married to the accused two months ago. This being so I hereby hold that the prosecutrix 'A' had been a consenting party and had voluntarily gone with the accused Raj Kumar and stayed with her in his house as husband and wife and that no force had been exercised upon her.
Fourthly it is evident from the testimony of PW14 HC Om Prakash and PW15 SI Narottam Singh who had gone to the house of accused Raj Kumar alongwith PW6 the father of the prosecutrix on 26.2.2004 that it was only the accused Raj Kumar who was found with the prosecutrix 'A'. Had the accused Sheela Devi and others including Pramod, Chota, Sunil and Sewa Ram St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 21 of 25 been present as alleged they would certainly have been arrested along with Raj Kumar. Rather, on the contrary it is evident from the record that Sheela was arrested from Tis Hazari Courts complex when she had come to meet the accused Raj Kumar and thereafter the accused Chota @ Bijender surrendered before the Ld. MM on 4.6.2004. The accused Sunil and Sewa Ram are proclaim offenders and have not been arrested till date and except for the testimony of prosecutrix PW1 there is no direct evidence which corroborates the allegations made by the prosecutrix that she had been kidnapped by the accused Raj Kumar and his associates i.e. Smt. Sheela Devi, Chota, Sunil and Pramod. The circumstances rather suggests otherwise and it is apparent that the prosecutrix had herself consented to going with the accused Raj Kumar. Further, as per the testimony of DW1 Tula Ram, the mother of the accused Smt. Sheela Devi was not present at the time when the prosecutrix had come to the village and rather the prosecutrix told everybody that she had come of her own. This version appears to be the correct version since had Sheela been there in the village then she would certainly have been arrested at the time of recovery of the prosecutrix which did not happen. The testimony of PW14 HC Om Prakash and PW15 SI Narottam are also silent on the aspect of presence of any other accused in the village and it is evident from their cross-examination that there is not even a whisper that Sheela or any other accused was also present at the spot with the prosecutrix and Raj Kumar when the prosecutrix was recovered from the village. Therefore, under these circumstances, in so far as the accused Sheela, Chota and Pramod are concerned, I hereby hold that the prosecution has not St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 22 of 25 been able to prove and substantiate the allegations made against them.
Lastly in view of my aforesaid discussion, even though it is evident that the prosecutrix was a consenting party to the whole affair so much so that she had even got married with the accused at District Court Badayun where she had gone to get the registration certificate of her marriage, photocopies of which are present on record (which are marked documents but can still be read into evidence the prosecutrix has admitted the same in her examination). In the application before the Ld. District Magistrate the prosecutrix had stated that she is aged 20 years and since her father is about to get her married to an aged person she has with her own free will married Raj Kumar. She has also stated in her application to the Hon'ble District Magistrate that her father being annoyed by the aforesaid was trying to get her arrested.
The object of Section 361 Indian Penal Code seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravemen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor out of the keeping of the lawful guardian of such minor" in Section 361, are significant. The use of word "keeping" in the context connotes the idea of charge, protection, maintenance and control; further the guardian's charge and control appears to be compatible with the independence of action and movement of the minor, the guardian's protection and St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 23 of 25 control of the minor being available, whenever necessity arises. On plain reading of this section, the consent of the minor who is taken or enticed is wholly immaterial; it is only the guardian's consent, which takes the case out of its purview. (Ref. Prakash Vs. State of Haryana reported in AIR 2004 SC 227).
In the present case the prosecutrix at the time of the incident was between the age of 14 to 16 years and was a minor. Willingness on the part of the prosecutrix under these circumstances to be taken out of the lawful guardianship of her parents, is of no consequences. It has been proved by the prosecution that the prosecutrix 'A' (PW1) was taken away from the lawful guardianship of her parents who was a minor at that time and had married to the accused Raj Kumar. PW4 Dr. Preety and PW11 Dr. Nishu Dhawan have proved the MLCs of the prosecutrix which are Ex.PW4/A & Ex.PW11/A which corroborated the version given by the prosecutrix before the court and also to the Ld. MM in her statement under Section 164 Cr.P.C. which is Ex.PW1/A that she had physical relations with the accused. The MLC of the accused has been duly proved by PW7 Dr. R.K. Mehta which MLC is Ex.PW7/A and the ossification test report has been proved by PW9 Dr. P.K. Jain which report is Ex.PW9/A according to which the age of the accused Raj Kumar was between 18 to 21 years.
Therefore, under these circumstances, in so far as the accused Sheela, Pramod and Chota are concerned I hereby hold that the prosecution has failed to prove and substantiate the allegations against them. The accused Chota and Pramod are hereby acquitted of the charges under Sections 363/366/34 IPC.
St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 24 of 25 Further, the accused Sheela is acquitted of the charges under Section 109/366/376 IPC. Their bail bonds stand cancelled. Their sureties stand discharged. Original documents of the sureties be returned after cancellation of endorsement if any, as per rules.
However, in so far as the accused Raj Kumar is concerned, I hereby hold that the prosecution has been able to prove and substantiate the allegations made against him. He is hereby held guilty of the offence under Section 363/366/376 Indian Penal Code and accordingly convicted.
Case be listed for arguments on sentence on 13.7.2010.
Announced in the open court (Dr. KAMINI LAU)
Dated: 7.7.2010 ASJ-II(NW): Rohini
St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 25 of 25
St. Vs. Raj Kumar Etc.
FIR No. 622/03
PS Vikas Puri
7.7.2010
Present: Addl. PP for the State.
Accused Sunil and Sewa Ram are PO.
All other accused are in person on bail.
Vide my separate detailed order dictated and
announced in the open court, accused Chota and Pramod are hereby acquitted of the charges under Section 363/366/34 IPC. Further, the accused Sheela is acquitted of the charges under Section 109/366/376 IPC. Their bail bonds stand cancelled. Their sureties stand discharged. Original documents of the sureties be returned after cancellation of endorsement if any, as per rules.
However, in so far as the accused Raj Kumar is concerned, I hereby hold that the prosecution has been able to prove and substantiate the allegations made against him. He is hereby held guilty of the offence under Section 363/366/376 Indian Penal Code and convicted accordingly. Accused Raj Kumar is on bail. He is taken into custody.
Case be listed for arguments on sentence on 13.7.2010.
(Dr. Kamini Lau) ASJ(NW)-II: Rohini 7.7.2010 St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 26 of 25 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE: ROHINI COURTS: DELHI Session Case No. 321/06 Unique Case ID No. 02401R0125792005 State Vs. Raj Kumar S/o Seva Ram R/o Village Thana, PS Dhanari Distt. Gannour, Zilla Badayun, Uttar Pradesh FIR No. 622/03 Police Station: Vikas Puri Under Section: 363/366/376/34 Indian Penal Code Date of Conviction: 7.7.2010 Arguments heard on: 13.7.2010 Date of sentence: 21.7.2010 ORDER ON SENTENCE:
Vide my detailed judgment dated 7.7.2010 the accused Raj Kumar has been held guilty of the offences under Section 363/366/376/34 Indian Penal Code. However, the accused Pramod Paswan, Chhota @ Bijender and Sheela have been acquitted.
This is a case where the prosecutrix 'A' who was a minor (between 14 to 16 years) at the time of incident i.e. 29/30.12.2003 had been taken away by the accused Raj Kumar along with his associates from the lawful guardianship of her parents without their consent with intent to get her married with Raj Kumar. As per the allegations, the accused Raj Kumar committed rape upon her. However, it has come on record that St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 27 of 25 after her abduction, the prosecutrix was produced before the Ld. District Magistrate Badayun and both the prosecutrix 'A' and the accused Raj Kumar got married. This aspect of her marriage has, however, not been proved but this court has vide its judgment dated 7.7.2010 has held that the prosecutrix 'A' was a consenting party. However, being a minor at the relevant point of time, which fact the prosecution has been able to prove beyond reasonable doubt, the consent of the minor is immaterial and therefore, the accused Raj Kumar has been held guilty of the offence under Section 363/366/376 Indian Penal Code.
Heard arguments on the point of sentence. Ld. counsel appearing of behalf of the convict Ms. Neelam Singh Advocate has vehemently argued that the convict Raj Kumar at the time of the incident, was a minor himself and is now married having a family comprising of his wife and a son aged about 1½ years and aged parents. She submits that the convict belongs to a very poor family and is presently employed with Aircell and is the sole bread earner of his family and is not involved in any other case for which a lenient view be taken against him. Further, she has pointed out that the convict has remained in custody w.e.f. 27.2.2004 to 5.11.2004 and from 7.7.2010 to till date.
The Ld. Addl. PP for the state on the other hand submits that the incidents of inducement and enticement of minors for the purposes of marriage are on an increase which is against the public and national interest and any leniency to the convict would give wrong signals to the society and therefore, he requests that a strict punishment be awarded to the convict Raj Kumar.
St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 28 of 25 I have considered the rival contentions and also the circumstances of the case. The convict before this court is a young boy in his early twenties who has now married having a son of 1½ years. The offence alleged is only technical in nature. The argument advanced by the Ld. counsel for the convict that at the time of incident the convict was himself a minor, is without any merit in view of the ossification report placed on record proving that at the time of the incident he was between 18 to 21 years of age. It has already been observed that the prosecutrix had willfully gone with the convict and had a consensual relations with him but since the prosecution has been able to prove that at the time of incident the prosecutrix was a minor i.e. between 14 to 16 years, therefore, under these circumstances that the accused has suffered his conviction under Section 363/366/376 Indian Penal Code.
Law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through the instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where lying law must find answer to new challenges and the Courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermining social order and lay it in ruins. Protector of society and stamping out criminal proclivity must be the object of law. Therefore, law as a cornerstone of the edificie of "order" should met challenges confronting the society. In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 29 of 25 Applying these principles of law to the present case, I hereby hold that ends of justice would be met if, the convict Raj Kumar is sentenced to Rigorous Imprisonment for a period of 9 months and fine to the tune of Rs.500/- for the offence under Section 363 read with Section 366 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 2 days. He is also sentenced to Rigorous Imprisonment for a period of two years and fine to the tune of Rs.1000/- for the offence under Section 376 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 4 days.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
All the sentences shall run concurrently. Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial.
One copy of the judgment and order of sentence be given to the convict free of costs and another be attached with his jail warrants.
File be consigned to Record Room to be taken up on the arrest proclaimed offenders/ application of the parties.
Announced in the open court (Dr. KAMINI LAU) Dated: 21.7.2010 ASJ (NW)-II: ROHINI St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 30 of 25
St. Vs. Raj Kumar Etc., FIR No. 622/03, PS Vikas Puri Page No. 31 of 25