Delhi District Court
State vs . Usha on 1 August, 2011
SC No: 36/11
FIR No. 33/11
PS Palam Village
State Vs. Usha
IN THE COURT OF MS. MAMTA TAYAL
ADDL. SESSIONS JUDGE : DWARKA COURTS
NEW DELHI
SC No. 36/11
FIR No. 33/11
Police Station Palam Village
U/Section 376/109/363/344/506 IPC
Received on assignment 09.06.2011
Reserved for orders on 01.08.2011
Judgment announced on 01.08.2011
State V/s Usha
W/o Late Shri Rakesh Shiv Puri
R/o RZ B36, Mahavir Vihar, New Delhi.
Permanent Address: H. No. 2076
Katra Gokul Shah, Bazar Sita Ram,
Delhi6.
J U D G M E N T
SC No. 36/11 1 of 8 01.08.2011
SC No: 36/11
FIR No. 33/11
PS Palam Village
State Vs. Usha
1. The accused was forwarded to face trial for an offence punishable under Section 376 r/w 109 IPC on the allegation that she had abetted the commission of rape of prosecutrix (name withheld in view of mandate of Hon'ble Apex Court) by her son Karan and in consequence of the said abetment, prosecutrix was actually raped by the said Karan. On 08.02.2011 at about 10.15 am, complainant Vijay Kumar Singh lodged a complaint at PS Palam Village that his daughter aged about 16 years 7 months was missing since after noon of 03.02.2011 when she had gone to attend Henna application class with her friend Khushi. He did not express suspicion on anyone. On his statement, FIR was registered and the necessary investigation was carried out. On 30.03.2011 the girl returned home of her own. Again local police was informed. The girl was got medically examined and her statement was got recorded under Section 164 Cr.P.C.. On the basis of her statement written by IO under Section 161 Cr.P.C., the accused Usha along with her son Karan was apprehended. Karan being JCL was forwarded to Juvenile Justice Board whereas charge sheet against the accused SC No. 36/11 2 of 8 01.08.2011 SC No: 36/11 FIR No. 33/11 PS Palam Village State Vs. Usha Usha was filed before concerned Magistrate.
2. Pursuant to compliance of Section 207 Cr.P.C., the case was committed to Sessions. After hearing arguments, charge under Section 376 r/w 109 IPC was framed against the accused and was served upon her. She pleaded not guilty and claimed trial.
3. Prosecution was called upon to adduce evidence to establish the said charge as per law. Five witnesses have been examined today towards prosecution evidence. PW1 is Doctor Arpita Gangwani from DDU hospital who had conducted the gynae examination of prosecutrix and found her hymen to be torn with no bleeding from vagina. PW2 is Doctor Sajid Hasan. He had examined Karan, son of the accused and had opined him to be capable of performing sexual act. PW3 is the proscutrix. PW4 is her father Vijay Kumar Singh, the complainant and PW5 is Urmila Singh, mother of the prosecutrix.
4. In the instant case the crux of the charges levelled against the accused is that during stay of prosecutrix in her house, accused had aided the commission of rape of prosecutrix by Karan SC No. 36/11 3 of 8 01.08.2011 SC No: 36/11 FIR No. 33/11 PS Palam Village State Vs. Usha who happened to be son of the accused. Consequently prosecutrix is the only material witness as per chargesheet to prove the said charge against the accused. She, however, as PW3, did not support the prosecution case at all, so far as the present case is concerned. She testified, while in witness box, that on 03.02.2011 she had planned and gone with Karan to watch a movie. Thereafter she accompanied him to Mumbai telling her friend Khushi not to disclose anything to parents of the prosecutrix. They stayed in Mumbai for one week in Karan's friend's house. She used to go out with Karan during her stay there. They had established physical relations with each other voluntarily and with her consent. Thereafter accused Karan brought her to Delhi and she started living with him and his mother, accused Usha in Delhi. Here again prosecutrix and Karan had sexual relations with each other as per wishes of the prosecutrix herself. Accused Usha used to go to her office during day time while prosecutrix along with Karan used to remain at home. After about 11 ½ months prosecutrix left Karan and returned home and her mother informed police.
SC No. 36/11 4 of 8 01.08.2011
SC No: 36/11
FIR No. 33/11
PS Palam Village
State Vs. Usha
5. From her sworn deposition in the court, it is evident that prosecutrix was not supporting prosecution version. Hence she was cross examined at length by Ld. Addl. PP for the State. She, however, stuck to her stand and vehemently denied having stated before police that she was kidnapped by Karan under any threat or was forcibly taken to Mumbai or she was raped by him. She rebutted the suggestion that she had told the IO that during her stay at Delhi with accused Usha and her son Karan, accused Usha used to bolt the door of room from outside while Karan used to rape her. She controverted having ever informed IO that accused Usha had offered to get her married with Karan or that she had facilitated rape of prosecutrix by Karan. Ld. Addl. PP could not extract anything to show that witness has been won over by the accused or was making a false statement in the court. In fact even in her statement under Section 164 Cr.P.C. recorded by Ld. MM, the prosecutrix did not level any allegation of abetment of rape against accused Usha. The prosecutrix was cross examined by Ld. Defence Counsel as well. She admitted that she had gone with son of SC No. 36/11 5 of 8 01.08.2011 SC No: 36/11 FIR No. 33/11 PS Palam Village State Vs. Usha accused as per their plan and was not taken by him unilaterally. She accepted that during her time out with Karan, he never forced her to do anything and never prevented her from talking to her parents on phone. She also admitted that she was in love with Karan and wanted to marry him and because of this reason only, she had voluntarily accompanied him to Mumbai and then remained with him at Delhi at his home of her free will. Lastly she admitted that accused Usha never confined her in her house nor she was ever raped by Karan with or without aid of accused Usha.
6. PW4 and PW5 are though parents of prosecutrix but PW4 had only lodged a missing complaint and he did not utter even single incriminating word against accused Usha. Similarly PW5 though alleged that her daughter was taken away by Karan, son of accused Usha but she also did not depose anything against accused Usha. Prosecutrix admittedly was 16 years and 7 months of age at the time of incident i.e. much above the age of discretion for sexual intercourse.
7. The rest of the witnesses cited by the prosecution in SC No. 36/11 6 of 8 01.08.2011 SC No: 36/11 FIR No. 33/11 PS Palam Village State Vs. Usha support of its version are all official or formal in nature. In view of above discussion, I am satisfied that no useful purpose shall be served by keeping the case pending for remaining evidence as, even if all the witnesses are examined , no finding of conviction of the accused can be returned. Hence PE is closed. Their being no sufficient incriminating evidence against the accused, warranting recording of her statement under Section 313 Cr.P.C., statement under Section 313 Cr.P.C. is dispensed with. Arguments have been heard.
8. For the same reasons as detailed herein above, the accused is acquitted. The accused is in judicial custody. She be released forthwith, if not required in any other case.
9. Accused is directed to furnish bail bond in sum of Rs.
10,000/ with one surety in the like amount in terms of Section 437A Cr.P.C. undertaking to appear before Appellate Court as mandated therein. Accused requested that she is a poor lady and cannot afford surety. She requested that she may be released on personal bond as she undertakes to appear before Appellate Court SC No. 36/11 7 of 8 01.08.2011 SC No: 36/11 FIR No. 33/11 PS Palam Village State Vs. Usha in terms of Section 437A Cr.P.C. as and when required. In circumstances keeping in view the status of accused, she is permitted to furnish personal bond only, within one week from today, as requested by the accused on ground that her counsel has already left the court.
10. File be consigned to record room.
Announced in the open
court on 01.08.2011 (MAMTA TAYAL)
ADDL.SESSIONS JUDGE
DWARKA:NEW DELHI
SC No. 36/11 8 of 8 01.08.2011