Delhi District Court
State vs . Rupesh Kumar S/O Late Rajender Singh. on 25 October, 2013
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 38/13
Unique Case ID No.02405R0368352011
State Vs. Rupesh Kumar s/o late Rajender Singh.
R/o Village Matiala, Diamond Factory,
Near Chopal, New Delhi.
Also at:- Village Sihol, PS Behra,
District Sarsha, Bihar.
Date of Institution :08.04.2011.
FIR No.95/10 dated 28.03.2010.
U/s. 363/366/376 IPC.
P.S.
Date of reserving judgment/Order :21.10.2013.
Date of pronouncement :25.10.2013.
JUDGMENT
1. The accused has been charge sheeted by the Police for having committed the offences punishable u/s 363/366/376 IPC.
2. As per the case of the prosecution, the prosecutrix namely 'G' (real name has been withheld to protect her identity) was induced and taken away by the accused on 22.3.2010. At that time the prosecutrix was only 13 years old. Her mother i.e. the complainant Munni appeared in the Police Station on 28.3.2010 and lodged a complaint against the accused. Her statement was recorded by HC Jai Singh, on the basis of which FIR u/s 363IPC was SC No.38/13 Page 1 of 17 registered and the investigation was entrusted to SI Domnika Putty. The IO sent wireless messages to all DGPs as well as SSPs and the information was also transmitted to missing persons squad. Notice was also published in the local newspaper. Call details of the mobile phone of the accused were obtained. Thereafter further investigation was handed over to ASI Dharamvir. He collected the date of birth record of the prosecutrix from her school. The prosecutrix was recovered and got medically examined vide MLC No. 15774/11. She stated her age to be between 17 to 18 years to the doctor who examined her and also stated that she accompanied the accused of her own and solemnised marriage with him and is three months' old pregnant. The exhibits handed over by the doctor were seized. The prosecutrix refused to go to her home and accordingly she was sent to Nirmal Chhaya. Statement of prosecutrix u/s 164 Cr.P.C. was recorded in which also she disclosed her age as 17 years and stated that she was in love with the accused, wanted to marry him but their parents were oppose to such alliance as they belong to a different religion and accordingly she eloped with the accused and solemnised a run away marriage with him on 22.3.2010 in a temple in Begu Sarai and thereafter sexual intercourse took place between them which was with her consent. She also expressed the desire that she wants to live with her husband i.e. the accused.
3. It is further the case of the prosecution that thereafter the prosecutrix submitted various complaints in the police station alleging that she had given false statement in favour of accused on account of threats issued by the accused. Accordingly, the statement of prosecutrix u/s 161 Cr.P.C. was recorded and the SC No.38/13 Page 2 of 17 accused was arrested. The accused was sent for medical examination. His blood sample was obtained by the doctor but he did not cooperate in giving his semen sample. Sections 366/376 IPC were added to the case. All the samples/exhibits were sent to FSL for forensic examination.
4. After completion of investigation, charge sheet was prepared and laid before the concerned Magistrate.
5. Upon committal of the case to the Court of Sessions, charges u/s 363 IPC, u/s 366 IPC and u/s 376 IPC were framed against the accused on 24.9.2011. The accused pleaded not guilty to the said charges and accordingly trial was held. The prosecution has examined 14 witnesses to prove the charges against the accused. Ld. APP has also tendered in evidence the FSL report Ex. PA. The accused was examined u/s 313 Cr.P.C. on 5.8.2013 wherein he denied all the incriminating facts and circumstances put to him and claimed false implication.
6. I have heard ld. APP, ld. Counsel for the accused and have perused the entire material on record.
7. The complainant Munni has been examined as PW-1. She deposed that on 22.3.2010, her daughter i.e. the prosecutrix 'G' aged about 13 years had gone to the market alongwith accused who used to come to the house of one Anil residing opposite to her house. When 'G' did not return home on 22.3.2010, she tried to search her at her level but could not find her. She went to the Police station on 28.3.2010 and lodged a complaint.
SC No.38/13 Page 3 of 17Her statement Ex. PW1/A was recorded in the police station wherein she expressed suspicion that accused Rupesh has kidnapped her daughter. On 19.8.2010 she came to know that her daughter has been recovered. Her daughter 'G' told her that accused had taken her away by inducement and she was not in her senses. She also stated that accused and his family members pressurised her to solemnise marriage of prosecutrix 'G' with accused. In her cross examination, she stated that her husband works in a factory at Narela and stays there with his brothers and sisters and he visits her after every three or four days. Her marriage had taken place eighteen years ago in her native village in Bihar. She has three children and the prosecutrix 'G' is the eldest one. She did not know the accused or his father's name on the date of incident. After four or five days of the incident, she came to know from her neighbour that a relative of Rupesh resided at Nangli. She approached that relative of the accused, who told her the name of Rupesh's father and his native village. She was taken to Nangli by a lady named Urmila residing in the same house in which she was residing. She had seen the accused Rupesh for the first time in the Court. She had gone to the police station to lodge a report alongwith her brother-in-law (devar) Mohd. Mukhtiar. Her statement was recorded in Hindi language and she had not narrated any word in English. She could not tell how English words have come up in her FIR statement Ex. PW1/A. She also deposed that her daughter 'G' had gone to the market alongwith Urmila on the date when she dis-appeared, to purchase Shampoo etc. She was confronted with the statement Ex. PW1/A where name of Urmila does not appear. She admitted that Urmila was helping her in search for 'G'. Urmila had also accompanied her SC No.38/13 Page 4 of 17 to the police station to lodge a complaint. The name of accused Rupesh was told to her by Urmila when they had gone to the Hospital. She admitted that Urmila's husband Raja was apprehended by the Police and kept in lockup for one night. She further deposed that about five or six days after her daughter 'G' had gone missing, 'G' had called her on phone and disclosed the name of the place where she was. She could not recollect the name of that place during the testimony in court. She further deposed that she tried to dial that number many a times, but nobody picked up the phone. She admitted that she had gone to Bihar alongwith the police officials to bring back her daughter 'G' and that 'G' was recovered from Bihar and not from Delhi. She further deposed that 'G' was born in their native village where she was residing after her marriage. She never used to send 'G' to market to purchase house hold articles. According to her 'G' was an intelligent girl and knew the distinctions between good and bad. She further denied the suggestion put to her by the ld. Cross examining counsel that prosecutrix 'G' was taken by Pankaj.
8. Prosecutrix has appeared as PW-3 for the prosecution. She deposed that on 22.3.2010, one Urmila had taken her to Gurgaon after administering a drink to her due to which she had lost her power to think. Accused Rupesh met them and Urmila sold her to the accused. Accused took her to his village by train and got married to her in a temple there on 26.3.2010. After the marriage, accused established physical relations with her forcibly. One day on getting an opportunity she tried to call her mother from a mobile phone but soon accused came there, snatched the phone and assaulted her. Thereafter accused took her to some other SC No.38/13 Page 5 of 17 place by bus. In the month of August, 2010 her mother Munni came there with Police and she was brought back to Delhi on 19.8.2010. Her statement was recorded at Dwarka Court which she proved as Ex. PW3/A. She was medically examined at DDU Hospital. Police also recorded her statement at her home. She was sent to Nirmal Chhaya when she refused to go with her parents wherefrom she was released after ten days. She gave birth to a girl child on 28.11.2010. She also deposed that she gave a false statement in the hospital at the instance of accused and the IO. In answer to a leading question put to her by ld. APP, she admitted that during her stay with the accused, he had threatened her to kill her. In the cross examination, she admitted that she was alone with the Judge in a room when her statement u/s 164 Cr.P.C. was recorded. She also knew that the Courts punish the criminals and the decisions given by the Court are on the basis of statements given by the witnesses in the Court. She also admitted that ld. Magistrate had asked several questions to her before recording her statement and had recorded her statement after being satisfied. Police had recorded her statement before the ld. Magistrate recorded her statement. She did not know the name of the train in which accused took her to Bihar. They remained in the train for two days. There were lot of passengers in the train but she did not have any conversation with any passenger in the train. She could remember the name of only one station i.e. Begu Sarai although lot of stations had come on the way to Bihar. She had taken only water during the journey to Bihar for which accused had paid. They got down from the train at Begu Sarai where from accused took her to his native village in an Auto Rickshaw. She stayed in the accused's village for abut four months. The accused SC No.38/13 Page 6 of 17 had left her at his village and had come to Delhi about 3 to 4 days before her mother had reached the village. Somebody had called up her mother and told her that she was in village. Her mother was accompanied by her brother Naushad and two policemen.
9. She further deposed that during her stay for about three to four months in the village of accused, she had asked the neighbours of the accused to arrange a telephone for a call with her mother as she was not having any access to a mobile phone. It took them about two days to reach Delhi from Bihar. During the journey from Bihar to Delhi her mother, her brother and two police officials remained with her. She admitted that accused did not meet her during the course of journey from Bihar to Delhi and till recording of her statement in he Police Station. She was given food by her mother during the journey from Bihar to Delhi and she was conscious during the entire journey. She denied having written letters from Nirmal Chhaya. She deposed that she had gone to Nirmal Chhaya out of her own free will but added that she was threatened by the accused not to give a true version. According to her accused had met her in the hospital and had threatened he in presence of IO. She had informed her parents about this fact about six months after the incident that she had been taken away by Urmila. She was taken to hospital for medical examination by the IO Dharamvir. She was with her for some time in the morning and thereafter one lady constable was with her. The police officials were with her throughout that day till the time she was taken to Nirmal Chhaya. She further deposed that she was recovered by the police from some village perhaps on 16.8.2010 and brought to Delhi. At that time accused was not with SC No.38/13 Page 7 of 17 her as he had already left for Delhi about 20 to 25 days before. She denied the suggestion that she was actually taken away by a boy named Pankaj and he brought her to the Police Station. At another place in the cross examination, she deposed that she stayed alongwith the accused in a house at Begu Sarai Bihar for about 6 months. The family consists of three males, two females and two children were also staying in that house. The name of one of those ladies was Pinki and one of those males was Sanjay Singh. The mother of the accused was also staying in that house. It was a hut type house, single storeyed and consisting of two rooms. There was no separate Kitchen and they used to prepare food in court yard in front of the hut . The length of the court yard was about 100 yards and there was a road thereafter. There was no latrine in the hut and they used to go in open to defecate. She also used to prepare food for the family occasionally.
10. Sh. Naushad, the brother of the prosecutrix has been examined as PW-4. He deposed that accused Rupesh had taken away the prosecutrix, daughter of his maternal uncle on 22.3.2010. After three to four months, prosecutrix was recovered from Begu Sarai and brought to Bindapur Police Station. He was declared hostile by ld. APP and in the cross examination conducted by the ld. APP, he denied having mentioned to the Police that on 2.2.2011, he alongwith his maternal aunt went to Police Station where he saw accused Rupesh and told Police that Rupesh had taken away prosecutrix by enticement. He denied that he knows the accused. He also denied that accused was arrested in his presence.
SC No.38/13 Page 8 of 1711. Undoubtedly, in a case involving offences of kidnapping and rape, conviction can be based on the sole testimony of the prosecutrix, if the court finds the same credible, trustworthy and inspiring confidence. In other words, the testimony of the prosecutrix should be of sterling quality and without any prevarications, and embellishments . When the testimony of the prosecutrix is found to be reliable and inspiring confidence, same does not require any corroboration at all. If the court, for certain reasons, feels reluctant to place utmost reliance upon testimony of the prosecutrix, it may look for corroboration from the other evidence on record. In the instant case, the testimony of the prosecutrix, not only appears to be absolutely unreliable and untrustworthy but also is replete with improvements and prevarications. Her testimony before this court is totally inconsistent with her statements recorded during the course of investigation and contradictory to the testimony of her mother. It certainly does not inspire confidence and seems to be far from being credible.
12. In her initial statements, to the Police, soon after she was recovered, as well as in her statement u/s 164 Cr.P.C., Ex. PW3/A the prosecutrix has stated that she was in love with the accused, wanted to marry him but her parents were opposed to such alliance as they belong to a different religions and for this reason, she voluntarily eloped with the accused, tied marital knot with him in a temple at Begul Sarai on 23.3.2010 whereafter they had sexual intercourse with each other with her consent. However, the prosecutrix has stated in her testimony before this court that she had given these statements under the threat of the accused SC No.38/13 Page 9 of 17 but there is no whisper in her whole testimony as to when and where had the accused threatened her not to give any statement against him and what threats were actually given to her. As per the deposition of the prosecutrix herself, the police alongwith her mother had recovered her from village Begu Sarai on 19.8.2010 and at that time, accused was not with her as he had already left for Delhi about 20 to 25 days before. It took them two days to reach Delhi from Bihar and during that journey she was accompanied by her mother, her brother and two police officials. She admitted that accused did not meet her during the course of journey from Bihar to Delhi and till recording of her statement by the Police in the police station. Therefore, there was no occasion for the accused to issue any threats to her to give statements in his favour. Infact it appears that the accused was not even aware about the recovery of the prosecutrix from the village as it was done at his back. Therefore, I find it very difficult to accept that the prosecutrix had given initial statement to the police as well as her statement u/s 164 Cr.P.C. Ex. PW3/A under the threat of the accused. These two statements appear to be truthful and genuine and depicting the true sequence of events.
13. The prosecutrix has deposed that she had been taken away by one lady Urmila from her house to Gurgaon on 22/3/2010 after administering her a drink due to which she had lost her power to think. Accused Rupesh met them and Urmila sold her to the accused. This is in total contradiction to the deposition of her mother PW-1 who has stated in her complaint to the police Ex. PW1/A as well as in her testimony before this court that the prosecutrix had gone to the market alongwith accused Rupesh on SC No.38/13 Page 10 of 17 22.3.2010 and thereafter did not return. She has also deposed that her daughter i.e. prosecutrix told her that she was taken away by the accused by inducement and she was not in her senses. In view of these two contradictory versions given by these two star witnesses of the prosecution, it will be against the rules of criminal justice to rely upon any of them in this regard. The prosecutrix, as per her deposition was in train alongwith the accused for two days. The train was full of passengers. She did not raise any alarm and did not apprise any of the fellow passengers that she is being taken away forcibly. According to her, she had taken only water and juices throughout the journey and, therefore, she must have visited the toilet of the train compartment to answer the nature's call during those two days but she did not try to run away. She remained with the accused at his village for about 6 months. During this period, she was doing normal house hold chores including cooking food for the family of the accused. She used to go out of the house to defecate in the open as there was no toilet in the house. She used to talk to the neighbours as she had asked one of the neighbours to arrange a telephonic call to her mother but she did not apprise that neighbour about her plight and did not tell any of the neighbours to inform the police about her plight. The overall conduct of the prosecutrix during her journey from Delhi to Bihar alongwith the accused and during her stay with the accused in his native village for such a long period of time, suggests that she had done so voluntarily and without any force or threat.
14. Further it is deposed by the prosecutrix herself that on 19.8.2010 when her mother alongwith the police officials reached SC No.38/13 Page 11 of 17 that village and recovered her, accused was not present there as he had left the village about 20 to 25 days before. Therefore, there was an opportunity for the prosecutrix to run away but she deliberately did not do so and kept on staying in the house of the accused despite the absence of the accused. This also speaks volumes about the conduct and intentions of the prosecutrix.
15. Contrary versions have come on record regarding the manner, in which the prosecutrix has been recovered. PW-1 i.e. the mother of the prosecutrix has in her examination-in-chief stated that she came to know on 19.8.2010 that her daughter has been recovered. This implies that she was not associated in the recovery of her daughter. However, the prosecutrix has very clearly deposed that her mother was with the police officials when they arrived at the village in Begu Sarai on 19.8.2010 and recovered her. As noted herein above, she has deposed that she had come to Delhi alongwith her mother, brother and two police officials. According to the deposition of PW-14 SI Dharamvir, the prosecutrix was recovered from East Uttam Nagar, Metro Station on 19.8.2010 pursuant to statement of her mother when she had come to know that the accused would be coming alongwith the prosecutrix to Delhi on that day. However, he has admitted in his cross examination that he did not record the statement of PW-1 on that day and did not make any entry in this regard in the daily diary. He has also not mentioned this fact in the case diary. It is, therefore, apparent that PW-14 has stated a blatant lie before this Court in this regard and the prosecutrix was infact recovered from a village in Begu Sarai, Bihar in the manner as deposed by her.
SC No.38/13 Page 12 of 1716. It is also pertinent to mention here that after the prosecutrix was brought to Delhi, from Bihar, she refused to go with her parents and accordingly she was sent to Nirmal Chhaya. In her statement u/s 164 Cr.P.C. Ex. PW3/A, she had expressed desire to stay with her husband i.e. the accused. There is no explanation from the side of the prosecution for said conduct of the prosecutrix and this too goes on to suggest that she was in love with the accused and was never kidnapped or subjected to forcible sexual intercourse by him. If she would have actually been kidnapped, confined and raped by the accused, she would not have expressed desire to stay with him and not go to her parents.
17. So far as age of the prosecutrix is concerned, the prosecution puts it as 14 years. However, the prosecutrix has mentioned her age to be 18 years to the doctor who conducted her medical examination. In her statement u/s 164 Cr.P.C. she has mentioned her age as 17 years but during her testimony before this court, she has given her age as 15 years. It is, therefore, most probable that she must have declared her age to the accused also as 18years. Much emphasis was laid by the ld. APP on the deposition of PW-11, the Head Mistress of the school in which prosecutrix was studying, who has proved the records of the school showing her date of birth as 12.3.1996 implying that the prosecutrix was only 14 years old when she eloped with the accused. However, as per PW-11, the prosecutrix was admitted in that school directly in class 4 as her father had represented that she had been studying at home and had not taken admission in any school previously. It is also apparent from the testimony of SC No.38/13 Page 13 of 17 PW-11 that father of the prosecutrix had not furnished any document like certificate from MCD etc. regarding the date of birth of the prosecutrix. It appears that the date of birth of the prosecutrix mentioned by her father to school authorities was a matter of guess work only and he was not in possession of any document in this regard. It is also to be noted that prosecutrix was admitted in that school in the year 2006 i.e. after almost ten years of her birth and it would not have been possible for her father, an illiterate worker, to remember her exact date of birth for so long when he had not noted it on any document. As held by the High Court, in Chidda Ram Vs. State, 1992, Crl.L.J. 4073 and Srikant @ Babu @ Rohit vs. State Manu/DE/2078/2013 decided on 9.7.2013, a school certificate or an admission form is not a conclusive evidence of the age of the prosecutrix and it would be unsafe to rely upon the same.
18. The prosecution has thus failed to adduce any conclusive evidence to prove that prosecutrix was a minor when she eloped with the accused. The prosecution has also failed to establish the ingredients of offences u/s 363 IPC, u/s 366 IPC and u/s 376 IPC as it becomes manifest from the evidence lead by it that prosecutrix had voluntarily accompanied the accused, stayed willingly with him at his village in Begu Sarai, Bihar and was a consenting party to the sexual intercourse with him. It is also evident that prosecutrix spoke truthfully in her initial statement to Police as well as in her statement u/s 164 Cr.P.C. but gave a false version of events in her testimony before this court under the pressure of her mother. It also seems that the mother of prosecutrix (PW1) was least concerned or worried on the SC No.38/13 Page 14 of 17 disappearance of her daughter as she did not lodge any missing complaint till 28.03.2010, when the prosecutrix has disappeared on 22.03.010. Probably she too knew about the love affair between the two and she did not loose her sleep on knowing that her daughter had gone with the accused.
19. This case is another classic example where the accused had to be arrested, charge sheeted and tried for kidnap and rape of the prosecutrix (whom he loved and who too was in deep love with him) only because mother of prosecutrix wanted it. The prosecutrix gave the initial statement to the police as well as to the ld. Magistrate that she voluntarily eloped with accused as she loved him and wanted to marry him but their parents were against this alliance as they belonged to different religious. She also stated that she willingly solemnized marriage with the accused in a temple and had physical relations with him voluntarily thereafter. Those statements of the prosecutrix appear to be genuine and truthful, keeping in view her conduct throughout from the time she accompanied the accused and when she was staying with him in his village at Begu Sarai, as detailed herein above. However, later on, as it appears, she had to bow to the pressure of her mother by giving a supplementary statement to the Police alleging kidnap and rape by accused, consequent to which, accused was arrested and charge sheeted.
20. As I had noted in one of my earlier judgment also, this is a very disturbing trend and deserves attention of legislature as well as the courts. These type of false rape cases form a sizable chunk of rape cases pending in Courts, consume valuable time of SC No.38/13 Page 15 of 17 Courts, thereby becoming a big reason for delay in disposal of genuine rape cases. The plight and helplessness of the parents, who find that their loved daughter has eloped with the boy, she loves, despite their resentment, is undoubtedly understandable. They surely would find it hard to digest that their daughter is spending time with somebody else before her marriage but slapping rape charges upon that boy, who is only as guilty as the girl herself, cannot be countenanced. This practice resorted to by parents needs to be deprecated and discouraged. They should, instead of filing false rape cases, deal with the situation in a dignified and responsible manner, keeping in mind the interests and betterment of both, the girl as well as boy. The parents should either groom their children with utmost care, guide them properly so that they can distinguish between good, bad and attractive and inculcate good moral values in them so that the unpleasant situations, like the one, which happen in cases liked the present one, are avoided or they should later on accept the reality when the girl elopes with the boy she loves and should not pressurize her to level false rape charges against him. In today's scenario, where the mobile phones, internet, cable t.v. etc. have made inroads in our households, parents shoulder a great responsibility in imparting moral values and education to their children so that they are able to abide by good moral standards and differentiate between what is good, bad and attractive. They have to be told and taught that what is attractive is not always good and what is good only has to be adhered to in all respects. Filing of false rape charges would certainly not curb the menace of elopement and run away marriages. Imparting good moral education and keeping a proper check or vigil on the activities of SC No.38/13 Page 16 of 17 children in their adolescent age would do.
21. I conclude by saying that the accused had been very unfortunate to have faced arrest and trial in this case when he had not resorted to any criminal activities. His acquittal is the only thing which this Court can order.
22. Accordingly accused is acquitted of all the charges.
Announced in open (VIRENDER BHAT)
Court on 25.10.2013. Addl. Sessionss Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.38/13 Page 17 of 17