Delhi District Court
State vs 1. Banti And 2. Ajay on 4 August, 2010
FIR No. 524/05
State Vs 1. Banti and 2. Ajay
Kumar
Police Station Shahdara
Convicted Under 323, 341 and 363 / 34
Section IPC
04.08.2010
Pre: Ld. APP for the state.
Convict Ajay and Banti are in JC.
Ld. Counsel Sh. Raj Kumar Tomar for accused Ajay Kumar.
Ld. counsel Sh. C.M. Arif for accused Banti.
Arguments on sentence heard at length.
Vide separate order on sentence placed along side in the file, I
sentence accused persons namely Banti and Ajay to undergo 5 years R.I. for
the offence u/s 363 / 34 IPC and to pay a fine of Rs.3000/- each in default
3 months further R.I.; and to undergo for 9 months for the offence u/s 323 /
34 IPC ; and to undergo one month R.I. for the offence u/s 341 /34 IPC.
All sentences shall run concurrently. Benefit of section 428 Cr. PC be given,
if any. Fine not paid. Copy of the sentence and judgment be given to the
accused persons forthwith at free of cost today itself.
File be consigned to record room.
Raj Kapoor/ ASJ-1/NE
KKD/Delhi /04.08.2010
FIR no.524/05
U/s 323/341/366/368/363
/328/ 34 IPC
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS
JUDGE-1 (North-East): KARKARDOOMA COURTS: DELHI
FIR No. 524/05
State Vs 1. Banti and 2. Ajay
Kumar
Police Station Shahdara
Convicted Under 323, 341 and 363 / 34
Section IPC
ORDER ON THE POINT OF SENTENCE
04.08.2010
Pre: Ld. APP for the state.
Convict Ajay and Banti are in JC.
Ld. Counsel Sh. Raj Kumar Tomar for accused Ajay Kumar.
Ld. counsel Sh. C.M. Arif for accused Banti.
Arguments on sentence heard at length.
During the course of argument Ld. APP submits that in this case 7
accused persons were involved out of which 5 principal accused persons
namely 1.Aliya, 2.Umardaraj, 3.Reshma, 4.Salma and 5.Kayyum have been
got declared proclaimed offenders and the trial has been completed against
accused Banti and Ajay who have been convicted under sections 323, 341
and 363 / 34 IPC. Ld. APP further submits that the offences committed by
accused persons are of very serious in nature and thus they do not deserve
any leniency at the time of awarding the sentence. On these grounds ld. APP
prays that accused Banti and Ajay be awarded maximum sentences so that a
message may go to the society for such misdeeds.
FIR no.524/05
U/s 323/341/366/368/363
/328/ 34 IPC
Contrary to the the submissions of ld. APP, ld. counsel Sh. Raj Kumar
Tomar for accused Ajay submits that accused Ajay is newly married. He has
old ailing widow mother who is about 70 years old. His father has expired.
On these grounds ld. counsel for accused prays for releasing accused Ajay
on probation of good conduct.
Ld. counsel Sh. C. M. Arif for accused Banti submits that accused
Banti has also old parents to look after and he is the only sole bread earner in
his family. Ld. counsel further submits that he has young sisters to look after.
On these grounds ld. counsel for accused Banti also prays for releasing the
accused Banti on probation of good conduct.
Having given careful consideration to the submissions of ld. counsel for
accused persons and ld. APP and perusal of the case file it reveals that 7
accused persons were involved in this case and 5 of them namely 1.Aliya,
2.Umardaraj, 3.Reshma, 4.Salma and 5.Kayyum are yet to be arrested.
Further, against the I.O. the observations have been passed in the judgment
itself directing the DCP concerned for taking appropriate action into the
matter.
Therefore, in view of the nature of offences committed by accused
persons namely Ajay and Banti, which pertains to the definition of gang rape,
I am not inclined to grant them probation of good conduct. Hence, to my view
FIR no.524/05
U/s 323/341/366/368/363
/328/ 34 IPC
ends of justice will be met if accused persons are sentenced to undergo 5
years R.I. for the offence u/s 363 / 34 IPC and to pay a fine of Rs.3000/- each
in default 3 months further R.I.; and to undergo 9 months for the offence u/s
323 / 34 IPC ; and to undergo one month R.I. for the offence u/s 341 /34 IPC.
Accordingly, I sentence accused persons
namely Banti and Ajay to undergo 5 years
R.I. for the offence u/s 363 / 34 IPC and
to pay a fine of Rs.3000/- each in default
3 months further R.I.; and to undergo for 9
months for the offence u/s 323 / 34 IPC ;
and to undergo one month R.I. for the
offence u/s 341 /34 IPC.
All sentences shall run concurrently.
Benefit of section 428 Cr. PC be given, if
any.
Fine not paid.
Copy of the sentence and judgment be
given to the accused persons forthwith at
free of cost today itself.
ANNOUNCED IN THE OPEN
COURT ON THIS 04.08.2010
(RAJ KAPOOR)
ADDL. SESSIONS JUDGE-I/NORTH EAST
KARKARDOOMA COURTS:Shahdara
FIR no.524/05
U/s 323/341/366/368/363
/328/ 34 IPC
IN THE COURT OF SH. RAJ KAPOOR, LD. A. S. J.- I : North- East
/ KARKARDOOMA COURTS: DELHI.
Case ID Number. 02402R0521172006
Sessions Case No. 139/07
Assigned to Sessions. 12/09/06
Arguments heard on 24.07.2010
Date of order. 28.07.2010
FIR No. 524/05
State Vs 1. Banti s/o Chhate Lal r/o House
No.609, R.R. Block, Shahdara,
Delhi.
2. Ajay Kumar s/o Raj Pal r/o
700/16, R.R. Block, Naveen
Shahdara, Delhi.
3.Aliya, 4.Umardaraj, 5.Reshma,
6.Salma; and 7.Kayyum - All are
proclaimed offenders
Police Station Shahdara
Under Section 323/341/366/368/363/328/ 34 IPC
JUDGEMENT
1. Briefly facts of the case are that on 10.10.2005 at House No.5657, R.R. Block, Navin Shahdara, Delhi within the jurisdiction of PS Shahdara, Delhi accused persons namely Banti and Ajay Kumar kidnapped a minor girl namely Lalita, aged about 15 years out of her lawful guardianship of her parents without their consent and with the intention that she might be compelled to marry without her 'will' or she might be forced to illicit intercourse, after getting smelt a cloth of piece to prosecutrix as a result of which she became unconscious. They confined her at some secret place i.e. in Distt. Firozabad.
FIR no.524/05U/s 323/341/366/368/363 /328/ 34 IPC
2. Consequently, on 21.10.05 a DD No.30A vide mark X was recorded at Police Station Shahdara at the behest of her sister of prosecutrix namely Babita regarding missing of prosecutrix Lalita. The said DD was marked to SI Dinesh Kumar for investigation. Later on father of prosecutrix Kalut Ram got lodged his report with the Duty Officer regarding missing of his daughter Lalita aged about 15 years from the house. On the basis of his report present case was registered u/s 363 IPC. Thereafter, Babita and her husband along with prosecutrix came in the Police Station where I. O. recorded statement of prosecutrix u/s 161 Cr.PC. Thereafter prosecutrix was got medically examined from GTB Hospital in the presence of her sister Babita. After her medical examination I.O. received certain sealed pulandas and those were seized vide seizure memo Ex.PW1/A. Prosecutrix remained admitted at hospital for about 2 - 3 days. The prosecutrix was also produced for bone-age X-Ray to determine her age. As per the said report she was more than 20 years. On 22.11.2005 statement of prosecutrix Lalita was got recorded u/s 164 Cr. P. C. from the court concerned of Police Station Shahdara.
3. Thereafter I.O. made search for accused persons namely Bunti, Aliya, Ajay, Umar Daraj, Reshma, Salma and Kayyum who were named by the prosecutrix.
4. On 15.12.2005 accused Bunti was arrested in the present case vide arrest memo Ex.PW1/B at the instance of prosecutrix Lalita and thereafter accused Ajay was arrested on 21.03.2006 vide arrest memo Ex.PW1/C. Disclosure statement of accused Bunti was recorded vide Ex.PW1/D. He made efforts to arrest other accused FIR no.524/05 U/s 323/341/366/368/363 /328/ 34 IPC persons namely Aliya, Umar Daraj, Reshma, Salma and Kayyum but could not be arrested despite best efforts. They were got declared PO on 19.08.06 as shown in column no.2 of the charge sheet.
5. This case was received in the Sessions Court on 01.03.07. After hearing arguments the Predecessor of this Court framed a charge for the offences u/s 363/ 366/ 323/ 341/ 328/ 368/ 34 IPC against accused persons namely Bunty and Ajay Kumar to which accused persons did not plead guilty and claimed trial vide court order dated 21.08.2007.
6. To prove and substantiate its case the prosecution has examined 11 witnesses namely PW1 SI Dinesh Kumar - I. O. of the case, PW2 Lalita - prosecutrix, PW3 Kalut Ram - father of prosecutrix, PW4 HC Pramod Kumar, PW5 Ct. Devender, PW6 Sandeep Khurana, PW7 Sh. Chander Shekhar, the then ld. MM, PW8 ASI Rajpal Sharma, PW9 Dr. Rajini, PW10 Rakesh Saxena and PW11 Ramesh Kumar.
7. The most material witness in this case is victim PW2 Lalita. For the sake of brevity and convenience, her statement is being re-produced verbatim which is as under:-
" I am 5th fail. I used to reside with my family i.e. my parents in the year 2005 at Rehman Building. At the time of incident, I was about 15 years old. I do not recollect date and month of incident, however, incident was about five years back. I had gone from the house at around 4:00 p.m. after telling my elder sister to purchase vegetables from the metro station flyover. When I was returning from the market after purchasing vegetables, Ajay and Banti both the accused today present in court correctly identified by the witness along with three other boys caught hold me when as soon as I reached near a Badarpur Shop at Shahdara. Accused Banti put handkerchief on my nose FIR no.524/05 U/s 323/341/366/368/363 /328/ 34 IPC and thereafter, I became unconscious. When I regain my consciousness I found myself at Firojabad, U.P. Both the accused are residing in my gali. The three associates of the accused who were involved in the incident are namely Vikas, Aliya and Vardraj. All the three accused were residing at some distance near house of my Aunt but not known to me. They were known to accused Ajay and Banti. I do not know the locality of the Firojabad where accused took me. I found all the five accused persons mentioned above when I regained consciousness. Vikas, Banti and Ajay left from there. They confined me at the house of Aliaya and Vardraj in a room which locked from outside. Aliya and Vardraj used to threatened me if I raised any alarm they will kill my brothers. They were saying so at the instance of accused Banti and Ajay. Accused persons Ajay and Banti did not commit any rape upon me. However, they had sold me to Aliya and Vardraj. I cannot tell the amount of the same. Aliya and Vardraj used to commit rape with me. I cannot tell the numbers of days accused Aliya and Vardraj committed rape with me. Aliya and Vardraj were both brothers. Their sister was also involved as she used to keep watch upon me so that I could not escape from there.
Accused Aliya and Vardraj along with their brother in law and sister were taking me to Agra in some private vehicle. They stopped the vehicle at some place, I made a telephonic call at my house after concealing myself from the accused persons and the said call was attended by my brother, Sonu. I narrated whole incident to him. My brother, Sonu and my uncle, Pappey along with Delhi Police reached at Agra and I was saved from the aforesaid accused. They run away when police reached there. Police brought me back Delhi. I was got medically examined by the police at hospital. I was also produced before the Ld. MM and my statement was recorded by Ld. MM. The photocopy of the statement u/s 164 Cr.P.C. is mark X which bears my signature at mark A. I narrated whole incident to the Ld. MM in my statement.
At this stage, ld. APP request to cross examine the witness as witness is unable to tell certain material fact as deposed by her in her statement u/s 164 Cr.P.C. before Ld. MM.
xxx by Ld. APP for the state.
It is correct that I had told the Ld. MM in my statement that as soon as I reached near Radhu Cinema five boys caught hold me and tried to manhandled me. It is correct that I had told the Ld. MM that they had confined me in godown of Badarpur. It is correct that when I raised alarm the owner of Badarpur godown made a call to the police on 100 number and sit in his office. It is correct that despite the call police did not reach there. It is correct that when police did not turn FIR no.524/05 U/s 323/341/366/368/363 /328/ 34 IPC up accused Banti today present in court forcibly entered in the office of Badarpur owner and dragged me inside the gali. In the gali they put some handkerchief on my nose and mouth and thereafter, I became unconscious. It is correct that accused Vardraj committed rape with me about five times. Accused Aliya also committed rape with me at Firojabad. The name of sister of accused Aliya and Vardraj was Salma. It is correct that I had told the Ld. MM in my statement that accused persons had made some talk to sell me for Rs.1.20 lacs and they inform me that I will have to remain at Agra. It is correct that when police saved me from the accused persons they were taking me towards Taj Mehal. My clothes were also seized at the time of my medical examination which I can identify if shown to me.
At this stage, one sealed envelope with the seal of FSL, Delhi has been produced from Malkhana. Same has been opened. It is containing Firoji colour kameez and salwar and one printed underwear identified by the witness Ex.P1 collectively which were seized by the doctor.
xxxx by Sh. C.M. Arif Adv. for both the accused persons.
I was born in Rehman building, Naveen Shahdara, Delhi. I had left studies about 15 years ago. My marriage took place about 4/5 years ago. I am having two children. On the day of incident, I alone went to purchase vegetables but I used to go to the market for purchasing vegetables along with my sister daily. I do not recollect the date when I regain consciousness in Firojabad, U.P. There were two ladies and four male persons inside the said room at Firojabad when I regain consciousness. I cannot tell the name of anyone of them. The persons who were present in the room where I was confined were not involved in my kidnapping. Again said they were the same persons who were involved in the incident of kidnapping from Delhi. I remain confined in the said room for 10 to 12 days. Accused persons were taking me in their small vehicle towards Agra. I cannot tell the date when I was taken to Agra. My Jija Pappu and my uncle and aunt came at Agra to take me back. There was no other person with them. I cannot tell the date when I was taken from Agra by my uncle and aunt. I made call to my house in the morning and my uncle and aunt reached Agra around 5:00 to 6:00 p.m. I was brought back to Delhi by my family in a private vehicle. It was night time when we reached Delhi. I was brought back to my house in Delhi from Agra. Police officials reached at my house on the same day in the night and made enquiry from me. Police took me to the Police Station along with my family. I did not make any statement to the police, they only obtained my signature. I had signed some written documents and some blank papers. Police obtained my signatures on blank papers thereafter. Accused persons today present in court had FIR no.524/05 U/s 323/341/366/368/363 /328/ 34 IPC not committed any rape upon me. Accused persons today present in court are not involved in my kidnapping. It is correct that the real culprits are not arrested by the police.
At this stage, Ld. APP request to re-examine the witness as she made contradictory statement in her cross examination. Heard. Allowed.
xxxx by Ld. APP for the state.
I had named the accused persons namely Ajay and Banti in my earlier statement recorded in the court on 12.03.2010 on the asking of police as they terrorized me that if I will not make such statement I will be put behind bars. I had not told the presiding officer of the court regarding pressure put upon me by the police to make such statement. I cannot tell the name of said police official who terrorized me but he was not wearing police uniform. It is wrong to suggest that I made my true and correct statement on the earlier date in the court. It is wrong to suggest that I have deposed today falsely to save the accused persons from the present case after taking money from them.
It is wrong to suggest that police recorded my statement true and correct on my version and not obtained my signature on blank papers as deposed by me today in the court. I have not deposed in my earlier statement recorded in the court that police obtained my signatures on blank papers. It is wrong to suggest that I concocted this false story in connivance with the accused persons to save them from the prosecution of the present case.
I have deposed the statement u/s 164 Cr. P.C. mark X on the asking of police who asked me to make such statement before the Ld. MM. It is correct that I had not told the Ld. MM who recorded my statement u/s 164 Cr. P.C. that I have been terrorized by the police to make statement against the accused persons. I have not made any statement to the Ld. MM that I am making statement u/s 164 Cr.P.C. without any fear and pressure and with my free will. It is wrong to suggest that I am deposing falsely regarding the aforesaid facts mentioned by the Ld. MM in my statement. Whatever I have deposed in my statement before the Ld. MM was recorded in my statement. My statement recorded u/s 164 Cr.P.C. by Ld. MM was recorded after making enquiry from me. It is wrong to suggest that my family members had compromise with the accused persons out of court that is why I am deposing falsely to save them. It is wrong to suggest that accused persons Ajay and Banti today present in court are involved in the incident of kidnapping. It is wrong to suggest that I am deposing falsely.FIR no.524/05
U/s 323/341/366/368/363 /328/ 34 IPC xxxx by Sh. Raj Kumar Tomar and Sh. C.M. Arif, for both the accused persons.
Nil. Opportunity given."
Having gone through the whole statement of prosecutrix carefully I found so many major contradictions since in her examination in chief recorded on 12.03.2010 she deposed against accused persons but in the cross-examination conducted on 21.05.2010 she gave total contradictory statement. She has deposed in her cross-examination that she did not make any statement to the police, they only obtained her signature. She had signed some written documents and some blank papers. Police obtained her signatures on blank papers thereafter. Accused persons present in court had not committed any rape upon her. Accused persons present in court are not involved in her kidnapping. Thereafter, she was again examined by ld. APP. In the cross-examination done by ld. APP she deposed that she had named the accused persons namely Ajay and Banti in her earlier statement recorded in the court on 12.03.2010 on the asking of police as they terrorized her that if she would not make such statement she would be put behind bars. However, she she had not told the presiding officer of the court regarding pressure put upon her by the police to make such statement. She again deposed that she cannot tell the name of said police official who terrorized her as he was not wearing police uniform. Ld. APP further cross-examined her. She again deposed that she deposed in the statement u/s 164 Cr. P.C. mark X on the asking of police who asked her to make such statement before the Ld. MM. She admitted that she had not told the Ld. MM who recorded her statement u/s 164 Cr. P.C. that she has FIR no.524/05 U/s 323/341/366/368/363 /328/ 34 IPC been terrorized by the police to make statement against the accused persons. She further deposed that her statement recorded u/s 164 Cr.P.C. by Ld. MM was recorded after making enquiry from her. She denied the suggestion that her family members had compromised with the accused persons out of court that is why she is deposing falsely to save them. She again denied the suggestion that accused persons Ajay and Banti are involved in the incident of kidnapping.
8. Statement of PW3 Kalut Ram cannot be read in evidence since this witness did not turn up to get completed his examination in chief which was recorded in part on 12.03.2010.
9. PW4 HC Pramod Kumar came to the court and deposed that on 15.12.2005 he joined the investigation with present with SI Dinesh Kumar. He deposed that I.O. made enquiry from public persons regarding some wanted persons namely Ajay, Banti and Vikas. He testified that accused Bunty was arrested at the instance of prosecutrix Lalita vide arrest memo Ex.PW4/B, disclosure statement vide already Ex.PW1/D and personal search memo vide Ex.PW4/C. This witness has been cross-examined by defence counsel at length. No contrary evidence has come on record which can suggest that this witness is false one.
10.PW5 Ct. Davender is a formal witness in this case. This witness deposed that on 30.6.2006 he was posted as Ct. at Police Station Shahdara. He took sealed samples in the present case vide RC No.73/21 from malkhana of Police Station Shahdara for deposit of FIR no.524/05 U/s 323/341/366/368/363 /328/ 34 IPC same to FSL, Rohini. He deposited the parcels on the same day at FSL Office and receipt of the same handed over to MHC(M). So long as samples remain in his custody he had not tempered the same. This witness was cross-examined by Sh. C.M. Arif and Sh. R.K. Tomar, Advocates for both accused. No contrary evidence has come on record which can suggest that this witness is false one.
11.PW6 Sandeep Khurana has been got declared hostile by ld. APP. This witness has been cross-examined by ld. APP. In cross- examination he denied the suggestion that he had told the police in his statement that 4/5 boys who were present inside his godown, the girl was protesting against them for some thing, confronted with portion A to A of Ex.PW6/A where it has been so recorded. He again denied suggestion he had told the police that he along with his father had caught one of the boy who told his name as Banti, confronted with portion B to B of Ex.PW6/A where it has been so recorded. He again denied the suggestion that he had told the police that those boys who were inside his godown used to reside in Rehman building and they also used to visit his shop, confronted with portion C to C of Ex.PW6/A where it has been so recorded. This witness has also denied the suggestion that accused persons namely Banti and Ajay are the same boys who were found inside his godown and one of them is Banti. This witness has not been cross-examined by defence counsel.
12.PW7 Sh. Chandra Shekhar, POLC-V, Karkardooma Courts, Delhi came before the court. He deposed that on 21.11.2005, he was working as MM at Karkardooma Courts. On that day, he received FIR no.524/05 U/s 323/341/366/368/363 /328/ 34 IPC the application for recording statement of prosecutrix Lalita marked by Link MM, Sh. B.S. Chumbak and matter was fixed for next day i.e. 22.11.2005 for recording statement of prosecutrix. On 22.11.2005, IO of the present case told that prosecutrix is present from Nari Niketan and she was also identified by him. After making some formal enquiry from prosecutrix Lalita, her statement u/s 164 Cr.P.C. was recorded vide Ex.PW7/A which bears his signature at point A, B and C respectively. This witness has also appended the certificate regarding correctness of statement recorded by him at point X. The copy of statement was given to the IO on his request vide Ex.PW7/B. This witness has not been cross-examined.
13.PW8 ASI Rajpal Sharma (Retd.), r/o C-1/153, Yamuna Vihar, Delhi, is the formal witness being duty office. He appeared in the witness box and deposed that on 29.10.2005 he was posted as HC at Police Station Shahdara and doing job of duty officer from 8:00 a.m. to 8:00 p.m. Complainant Kalut Ram came in the Police Station himself and made statement to him. On the basis of his statement, he recorded FIR No.524/05 u/s 363 IPC. This witness got exhibited the carbon copy of same vide Ex.PW8/A . Ld. counsel Sh. C.M. Arif Adv. for accused persons cross-examined him. In the cross-examination it has come on record that he had not told to the SHO before recording FIR on the basis of statement of Kalut Ram. After registration of FIR the SHO was apprised of the facts.
14.PW9 Dr. Rajni w/o Dr. Jagsir, r/o Chaudhary Hospital, Phase II, Noida. She is the material witness in this case. She deposed that on 12.11.2005 she was working as Senior Resident in department of FIR no.524/05 U/s 323/341/366/368/363 /328/ 34 IPC Gyane, GTB Hospital, Shahdara, Delhi. This witness testified that Lalita d/o Kalut Ram, aged about 15 years female was brought by SI Dinesh Kumar of Police Station Shahdara with the alleged history of kidnap by five people on 07.10.2005 at about 4:30 p.m. from Shahdara near Raj Cinema with history of rape by two people namely Ali and Vardraj daily from the date of 07.10.2005 as informed by the patient. This witness deposed that on examination hymen was found ruptured and there was curdy discharge present in vagina. The pregnancy test of patient was conducted and same was found negative. There was no external marks of injury found on the body of Lalita. Ultrasound, HIV, VDRL were advised. Vaginal smear, clothes and undergarments of the patient were taken into possession and handed over to IO after proper sealing. This witness has not been cross-examined by the defence counsel.
15.PW10 Rakesh Saxena s/o Sh. A.P. Saxena, aged 42 years, Sub Registrar (Birth and Death), MCD, Shahdara, North Zone, Delhi. He came to the witness box and gave his statement. On careful perusal of his statement I am surprised to note that he brought original record regarding date of birth of one male born to Pappan and name of mother is Malka on dated 29.05.1990. The entry to this effect has been made at serial No.3416 of MCD register. The father of said child was resident of 807, Naveen Shahdara, Delhi. Photocopy of the said register is Ex.PW10/A (OSR). This witness has not been cross- examined by defence counsel. Having perused his testimony carefully and material available on record, conduct of PW10 Rakesh Saxena appears suspicious precisely for the reasons that PW10 Rakesh Saxena ( witness from the MCD ) has produced the record of FIR no.524/05 U/s 323/341/366/368/363 /328/ 34 IPC a male born on 29.05.1990 in stead of victim PW2 Lalita - prosecutrix whose date of birth is 11.06.1990 despite the fact that on the summon received by the Office of Sub-Registrar (Birth & Death) Shahdara, Delhi on 03.06.2010, clearly it was mentioned that entire record regarding Certificate no.3416 dt. 11.06.90 be produced.
16.PW11 Ramesh Kumar is the Jija of prosecutrix. He came to the witness box and deposed that Prosecutrix Lalita is his sister-in-law and she was aged about 16/17 years at the time of incident. On 11th November he received a telephonic message from Lalita who made the call from Agra and informed that she is present in Agra in a very critical stage. Thereafter, he along with 8/10 persons of the locality went to Agra in a private vehicle make Qualis. They made search for Lalita in Agra during whole day. He further testified that Lalita was surrounded by 8/10 boys behind Taj Mahal at Agra when they noticed her. On seeing them boys run away after leaving her. Lalita was brought back to Delhi at Police Station Shahdara. Thereafter, police officials of Police Station Shahdara told that they would go to Firozabad in search of accused persons. On further careful perusal of his testimony it has come on record that accused persons were not the said boys who were apprehended by the police. This witness has been cross-examined at length by Sh. Raj Kumar Tomar and Sh. C.M. Arif, Advocate for both the accused. Having perused the same.
17.PW1 SI Dinesh Kumar, No. D-745, PM Cell Security, Delhi is also a most material witness in this case. He came to the witness box and deposed that on 21.10.2005 he was posted as Sub-Inspector at FIR no.524/05 U/s 323/341/366/368/363 /328/ 34 IPC Police Station Shahdara. On that day a DD No.30A vide mark X was marked to him. Later on, father of prosecutrix Kalut Ram got lodged his report with the Duty Officer regarding missing of his daughter Lalita aged about 15 years from the house. On the basis of his report present case was registered u/s 363 IPC. Thereafter, Babita and her husband along with prosecutrix came in the Police Station where I. O. recorded statement of prosecutrix u/s 161 Cr.PC. Thereafter prosecutrix was got medically examined from GTB Hospital in the presence of her sister Babita. After her medical examination I.O. received certain sealed pulandas and those were seized vide seizure memo Ex.PW1/A. Prosecutrix remained admitted at hospital for about 2 - 3 days. The prosecutrix was also produced for bone-age X- Ray to determine her age. As per the said report she was more than 20 years. On 22.11.2005 statement of prosecutrix Lalita was got recorded u/s 164 Cr. P. C. from the court concerned of Police Station Shahdara. Thereafter I.O. made search for accused persons namely Bunti, Aliya, Ajay, Umar Daraj, Reshma, Salma and Kayyum who were named by the prosecutrix. On 15.12.2005 accused Bunti was arrested in the present case vide arrest memo Ex.PW1/B at the instance of prosecutrix Lalita and thereafter accused Ajay was arrested on 21.03.2006 vide arrest memo Ex.PW1/C. Disclosure statement of accused Bunti was recorded vide Ex.PW1/D. He made efforts to arrest other accused persons namely Aliya, Umar Daraj, Reshma, Salma and Kayyum but could not be arrested despite best efforts. They were got declared PO. This witness has been cross- examined at length. Having perused the same I found some contradictions which are bound to be occurred due to long duration of time and memory of a human being.
FIR no.524/05U/s 323/341/366/368/363 /328/ 34 IPC
18.After completion of statements of prosecution, Statements of accused persons u/s 313 Cr. PC were recorded. Accused persons denied all the allegations leveled against them by the prosecution by submitting that they are innocent and they have been falsely implicated in this case and witnesses are interested witnesses. However, they could not lead any defence evidence despite asking him.
19.Arguments were heard at length. During the course of arguments, it is argued and submitted by the counsel for accused that accused persons have been falsely implicated in the present case. Ld. counsel for accused persons submitted that PW2 Lalita and other material witnesses have not identified the accused persons as culprits. PW2 Lalita has been got declared hostile by ld. APP. Ld. Counsel for accused persons further argued and submitted that PW10 Rakesh Saxena -witness from the MCD has produced the record of a male born on 29.05.1990 in stead of victim PW2 Lalita- prosecutrix. He again argued that as per the bony x-ray the age of prosecutrix has come more than 20 years. Therefore, it is clear from the record that she was major girl at the time of incident. Ld. counsel for the accused persons again submitted that no where in her statement prosecutrix stated that accused persons namely Banti and Ajay Kumar had committed rape upon her. Rather, she has deposed that police had obtained her signature on blank papers. Ld. counsel again argued and submitted that testimony of PW5 cannot be read in evidence since he did not turn up for getting completed his testimony. Ld. counsel again argued and submitted that PW6 Sandeep Khurana FIR no.524/05 U/s 323/341/366/368/363 /328/ 34 IPC has also been got declared hostile by ld. APP, allegedly who was the witness at whose godown accused persons were seen by him along with prosecutrix. Ld. counsel for accused persons on these grounds submitted that case of the prosecution is afterthought, concocted and baseless.
20.Contrary to the submissions of ld. counsel for the accused persons, ld. APP argued and submitted that PW2 Lalita-prosecutrix has been won over by the accused persons since at the first instance in her examination in chief recorded on 12.03.2010 she has categorically deposed and narrated the role of accused persons namely Banti and Ajay Kumar in the present incident but in the cross-examination done by defence counsel on 21.05.2010 she has totally turned hostile. The conduct of the PW2 Lalita - prosecutrix shows that she has been won over by accused persons. Ld. APP further argued and submitted that prosecutrix was under the 18 years of age at the time of incident since, her age as 15 years has been mentioned in DD no.30 A vide Mark 'X'. Thereafter when prosecutrix was recovered she herself got recorded her age as 15 years in the statement recorded u/s 164 Cr. PC by the then ld. M.M. on 22.11.05. Besides, while she came in the court to give her statement on 12.03.2010 she stated her age as 20 years old, meaning thereby that before 5 years ago at the time of incident she was 15 years of age. Thus, truth itself has come on record. Ld. APP further argued and submitted that PW10 Rakesh Saxena has produced false record and false evidence to the effect of determination of age of prosecutrix. He further argued and submitted that Clerk of the MCD was directed to produce the record regarding the date 11.06.1990 to the entry no.3416 while he FIR no.524/05 U/s 323/341/366/368/363 /328/ 34 IPC produced the record of 29.05.1990 entry no.3416 of a male. Ld. APP submitted that conduct of this witness also shows that he tried to misguide the court at the instance of accused persons. However, ld. APP has relied upon the citation 'Khujji @ Surendra Tiwari- State of M.P.- AIR 1991 Supreme Court 1853' on the point of hostile witness.
21.The Hon'ble Supreme Court 2009 'CRLJ 1332, Arjun Singh Vs. State of Himachal Pradesh' wherein it has been observed that :-
" 6. So far as the age is concerned in 'Vishnu v. State of Maharashtra (2006 (1) SCC 283)' it was inter alia held as follows :
" 20. It is urged before us by Mr. Lalit that the determination of the age of the prosecutrix by conducting ossification test is scientifically proved and, therefore, the opinion of the doctor that the girl was of 18- 19 years of age should be accepted. We are unable to accept this contention for the reasons that the expert medical evidence is not binding Medical Officer is to assist the court as he is not a witness of fact and the evidence given by the Medical Officer is really of an advisory character and hot binding on the witness of fact."
22.The relevant sections with regard to the kidnapping from lawful guardianship are 361 IPC & 363 IPC and for the sake of convenience both sections are reproduced as under :-
Section 361 IPC:-
" Whoever takes or entices any minor under sixteen years of age if a male,or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
Section 363 IPC:-
" Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."FIR no.524/05
U/s 323/341/366/368/363 /328/ 34 IPC
23.It has been defined in section 361 IPC that whoever takes or entices any minor under (18) years of age if a female, out of the keeping of the lawful guardian of such minor, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. In a judgment titled as 'Prakash Vs State of Haryana AIR 2004 SC 227: (2004) 1 SCC 339' it has been observed that:
" The object of this section seems as much to protect the minor children from being seduced fro improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards"
24.In the present case this court is of the considered view that prosecutrix was under the 18 years of age at the time of incident which took place on 10.10.05 since, her father Kalut Ram has got mentioned her age as 15 years in the missing report and thereafter when statement of prosecutrix was recorded u/s 164 Cr. PC on 22.11.05 by the then ld. M.M. she got recorded her age as 15 years Besides, when she came before this court to give statement on 12.03.2010 she stated her age as 20 years old, meaning thereby that before 5 years ago at the time of incident she was 15 years of age. Thus, truth itself has come on record.
25.In Vishnu v. State of Maharashtra, (1997) Cr.L.J. 1724 (Bom), the High Court of Bombay observed as under :
"The accused were alleged to have kidnapped the girl below 16 years of age from the lawful guardianship of her parents and taken her to another city. The co-accused had simply met the girl and had not instigated her to accompany the accused. Hence, her conviction was set aside. So far accused was concerned, his offence of kidnapping was proved beyond all doubts and he was convicted u/s 363/366 IPC . Accused FIR no.524/05 U/s 323/341/366/368/363 /328/ 34 IPC was however acquitted of the charge of rape u/s 375 IPC as hymen of girl was intact and there were no outward sign of injuries or violence suggesting the sexual intercourse and consequently no rape could be said to have taken place."
26.In the judgment 'Khujji @ Surendra Tiwari- State of M.P.- AIR 1991 Supreme Court 1853' where in it has been observed that :
" The High Court came to the conclusion and in our opinion rightly, that during the one month period that elapsed since the recording of his examination-in-chief something transpired which made him shift his evidence on the question of identity to help the appellant. We are satisfied cross-examination on the question of identity of the appellant and his companion is a clear attempt to wriggle our of what he had stated earlier in his examination in chief. Since the incident occurred at a public place, it is reasonable..............his companions. We are therefore, not impressed by the reasons which weighed with the trial court for rejecting his evidence. We agree with the High Court that his evidence is acceptable regarding the time, place and manner of the incident as well as the identity of the assailants."
27.In the instant case, the act of the accused persons namely Banti and Ajay Kumar that during the course of kidnapping of the prosecutrix or forcibly taking her to the Firojabad, U.P. after getting smelt one cloth, the accused persons had intention or knew it likely that the prosecutrix would be forced to have illicit intercourse. Hence, it is a case of kidnapping for indecent assault as other five accused persons could not be brought for trial so finding on illicit intercourse and selling the prosecutrix cannot be ascertained against both accused persons namely Ajay Kumar and Banti. However, accused persons have not committed any rape upon her as per version of prosecutrix herself as stated in her examination in chief. The relevant part of the deposition of PW2 Lalita - Prosecutrix is as follows:-
FIR no.524/05U/s 323/341/366/368/363 /328/ 34 IPC " When I was returning from the market after purchasing vegetables, Ajay and Banti both the accused today present in court correctly identified by the witness along with three other boys caught hold me when as soon as I reached near a Badarpur Shop at Shahdara. Accused Banti put handkerchief on my nose and thereafter, I became unconscious. When I regain my consciousness I found myself at Firojabad, U.P. Both the accused are residing in my gali. The three associates of the accused who were involved in the incident are namely Vikas, Aliya and Vardraj.
It is correct that when police did not turn up accused Banti today present in court forcibly entered in the office of Badarpur owner and dragged me inside the gali. In the gali they put some handkerchief on my nose and mouth and thereafter, I became unconscious."
28.Accordingly, in view of my observation, the prosecution has successfully proved its case for the offence u/s 363 / 34 IPC in light of the judgment 'Khujji @ Surendra Tiwari- State of M.P.- AIR 1991 Supreme Court 1853' (supra) against both accused persons namely Banti and Ajay Kumar as they committed this offence in furtherance of their common intention. In this regard it is pertinent to mention here that non identification of the accused persons by the prosecutrix and denial of involvement of accused persons Banti and Ajay Kumar in the cross-examination did not come to rescue of the accused persons precisely for the reasons that PW2 Lalita- prosecutrix appears to have been won over by the accused persons subsequently as she has constantly deposed in the testimony in this court that accused persons namely Banti and Ajay Kumar along with other three accused persons took her after smelling some stupefying object. Thus, I convict accused persons namely Banti and Ajay Kumar for the offence punishable u/s 363/ 34 IPC. So long as the stupefying object is concerned, the prosecution has not proved the substance of intoxication.
FIR no.524/05U/s 323/341/366/368/363 /328/ 34 IPC
29.So far as the offences u/s 366, 328 and 368 IPC are concerned, let the relevant sections be reproduced verbatim which are as under:-
Section 366 IPC " Kidnapping, abducting or inducing woman to compel her marriage, etc - Whoever kidnaps or abducts any woman with intent 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 to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to find, and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."
Section 368 IPC " Wrongfully concealing or keeping in confinement, kidnapped or abducted person - Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement."
Section 328 IPC " Causing hurt by means of poison etc., with intent to commit an offence. - Whoever administers to or causes to be taken by any person any poison of any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to find."
30.As far as sections 341, 323, & 34 IPC are concerned, for the sake of convenience these are also being reproduced as under :-
Section 341 IPC:-
" Punishment for wrongful restraint - Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both ."FIR no.524/05
U/s 323/341/366/368/363 /328/ 34 IPC Section 323 IPC :-
" Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
Sec.34 IPC " When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
31.Careful perusal of the section 34 IPC reveals the following important ingredients :
i. That there must be a criminal act.
ii. The act must have been done by several persons in furtherance of their common intention.
32.In view of the discussed facts and circumstances of the case, the relevant portion of the statement of prosecutrix is being reproduced verbatim which is as under:-
" It is correct that when police did not turn up accused Banti today present in court forcibly entered in the office of Badarpur owner and dragged me inside the gali. In the gali they put some handkerchief on my nose and mouth and thereafter, I became unconscious."
33.Therefore, in light of the judgment 'Khujji @ Surendra Tiwari- State of M.P.- AIR 1991 Supreme Court 1853 (supra) I am of view that examination in chief of prosecutrix is sufficient to bring home the guilt of accused persons namely Banti and Ajay Kumar for the offences punishable u/s 341/323/34 IPC too. The ingredients of these sections FIR no.524/05 U/s 323/341/366/368/363 /328/ 34 IPC have sufficiently been proved on record precisely for the reasons that both as per the version of prosecutrix as told in examination in chief, that accused persons Ajay Kumar and Banti in furtherance of their common intention put handkerchief on the nose of prosecutrix and dragged her in the gali. They took her away from Shahdara to Firojabad, U.P. where they confined her in a room. Again, in this regard it is pertinent to mention here that non identification of the accused persons by the prosecutrix and denial of involvement of accused persons Banti and Ajay Kumar in the cross-examination did not come to rescue of the accused persons precisely for the reasons that PW2 Lalita- prosecutrix appears to have been won over by the accused persons subsequently as she has constantly deposed in the testimony in this court that accused persons namely Banti and Ajay Kumar along with other three accused persons took her after smelling some stupefying object.
34.Thus, I convict accused persons namely Banti and Ajay Kumar in light of the judgments i.e. 1.'Khujji @ Surendra Tiwari- State of M.P.- AIR 1991 Supreme Court 18532, 2.Vishnu v. State of Maharashtra, (1997) Cr.L.J. 1724 (Bom); 3.'Prakash Vs State of Haryana AIR 2004 SC 227: (2004) 1 SCC 339' and 4.'CRLJ 1332, Arjun Singh Vs. State of Himachal Pradesh' (supra) for the offence punishable u/s 323/34 as they dragged her in the gali; for the offence punishable u/s 341/34 IPC as they confined her in a room at Firojabad, U.P. after locking the door from outside; and for the offence u/s 363 /34 IPC since on 10.10.2005 accused persons namely Banti and Ajay Kumar kidnapped minor Lalita, aged about 15 years out of FIR no.524/05 U/s 323/341/366/368/363 /328/ 34 IPC her lawful guardianship of her parents without their consent. Her age as 15 years has been ascertained and proved on record since, her age as 15 years has been mentioned in DD no.30 A vide mark X and thereafter when statement of prosecutrix was recorded u/s 164 Cr. PC on 22.11.05 by the then ld. M.M. she got recorded her age as 15 years Besides, when she came before this court to give statement on 12.03.2010 she stated her age as 20 years old, meaning thereby that at the time of incident she was 15 years of age. Thus, truth itself has come on record that she was minor at the time incident being below the age of 18 years.
Accordingly, I convict accused persons namely Banti and Ajay Kumar for the offences punishable u/s 323, 341 and 363 / 34 IPC for the reasons as discussed in foregoing paras from 24 to 33.
Accused persons namely 1.Aliya,
2.Umardaraj, 3.Reshma, 4.Salma and
5.Kayyum are proclaimed offenders.
OBSERVATION:
Before parting with the delivery of the judgment I would like to make a note with regard to the conduct of the IO and the prosecution that in this case accused persons namely 1.Aliya, 2.Umardaraj, 3.Reshma, FIR no.524/05 U/s 323/341/366/368/363 /328/ 34 IPC
4.Salma and 5.Kayyum, proclaimed offenders have not been arrested despite the fact that they belong to one family and they were got declared P.O. a long time ago. Facts and circumstances of the case show that this case pertains to gang rape but I.O. did not consider this fact. Therefore, I found the preparatory and adoptive measures taken by the IO / authority/ prosecution inadequate. In this regard respectful DCP concerned, may look into the matter to regulate the investigation process to prevent further recurrences of such lapses.
The conduct of PW10 Rakesh Saxena appears suspicious precisely for the reasons that PW10 Rakesh Saxena ( witness from the MCD ) has produced the record of a male born on 29.05.1990 in stead of victim female PW2 Lalita - prosecutrix whose date of birth is 11.06.1990 despite the fact that on the summon received by the Office of Sub-Registrar (Birth & Death) Shahdara, Delhi on 03.06.2010, clearly it was mentioned that entire record regarding Certificate no.3416 dt. 11.06.90 with regard to this case be produced. In view of this issue proceedings u/s 344 Cr.P.C. against him. A separate file be opened in respect of PW10 Rakesh Saxena, after keeping the photocopy of this judgment, his statement and summon issued for 05.06.2010 to the Clerk, Sub-Registrar Office, MCD Shahdara (N.E) Zone.
ANNOUNCED IN THE OPEN COURT ON THIS 28.07.2010 (RAJ KAPOOR) ADDL. SESSIONS JUDGE-I/NORTH EAST KARKARDOOMA COURTS: DELHI FIR no.524/05 U/s 323/341/366/368/363 /328/ 34 IPC