Delhi District Court
State vs . Amit on 23 May, 2013
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 36/13)
Unique ID case No. 02401R0270042012
State Vs. Amit
FIR No. : 491/07
U/s : 376(2)(g)/34 & 174 A IPC
P.S. : Uttam Nagar
State Vs. Amit S/o Darshan Lal
R/o H. No. B30 A, Shiv Vihar
Uttam Nagar,
Delhi.
Date of institution of case 19.05.2012
Date on which, judgment has been reserved 22.05.2013
Date of pronouncement of judgment : 23.05.2013
JUDGMENT
1 Briefly stated case of the prosecution is that on 17062007, prosecutrix (name withheld to protect the identity of the prosecutrix) was going to the house of her Chachi, at about 8.30 p.m., to cook food. On that day, accused Keshav (since acquitted on 30.03.2010), a TSR driver, who was residing nearby, met her and took her in his TSR on the pretext of giving her a ride. He took her to Safeda Park, Budh Bazar at village Hastsal, where his friends namely Gabbar 2 (since acquitted on 30.03.2010) and Amit (accused herein) also came. They took the prosecutrix forcibly inside the park and raped her. Accused Gabbar (since acquitted on 30.03.2010) and accused Amit left the park after raping the prosecutrix. Accused Keshav (since acquitted on 30.03.2010) came outside the park with prosecutrix, however, he left her there and went away in his TSR. The Prosecutrix returned back to her house in the morning and informed about the incident to her father. The father of the prosecutrix apprehended accused Keshav (since acquitted on 30.03.2010) and also informed the police. Statement of prosecutrix was recorded by the police and FIR under section 376(2)(g)/34 IPC was registered against accused Keshav and Gabbar (both acquitted on 30.03.2010) as well the present accused Amit. During the course of investigations, accused Gabbar (since acquitted on 30.03.2010) was also arrested in the case. Statement of prosecutrix was got recorded under section 164 Cr.PC. Her medical examination regarding the alleged offence as well as for determination of her bone age was also got conducted. On completion of investigation, charge sheet was filed against accused Keshav and Gabbar was filed before the learned MM. Both of the said accused faced trial before learned Sessions Court, upon committal of the case to the Sessions Court, and were acquitted vide judgment dated 30.03.2010.
2 The accused Amit was declared P.O. vide order dated 30.05.2008 and was arrested u/s.41.1 (c) CrPC on 06.04.2012. His supplementary charge 3 sheet was filed before the Court of learned MM.
3 Upon committal of this case to the court of Sessions, charges for the offence under Sections 363/366A/376(2)(g)/174A/34 IPC IPC were framed against the accused Amit. However, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence. 4 In order to prove its case, prosecution examined 11 witnesses, which included some of the witnesses, who had earlier been examined during the trial of accused Keshav and Gabbar (who were acquitted vide judgment dated 30.03.2010), as well as witnesses to the arrest of accused Amit. The numbering of PWs and exhibits was retained as it was in the main charge sheet for the sake of convenience. Further the present case was received by way of transfer in this Court on 04.04.2013 and prior to that, one PW namely HC Satish Kumar had already been examined as PW1 by learned Predecessor. Accordingly, the numbering of PW1 HC Satish Kumar was changed to PW1A and the exhibits in his statement i.e. Ex.PW1/A to Ex.PW1/D were renumbered as Ex.PW1A/A to Ex.PW1A/D vide order dated 14.05.2013. Further PW15 HC Ami Lal, who had joined proceedings of arrest of coaccused Keshav and Gabbar, PW16 Dr. Amit Mehtani, who had examined accused Keshav, and PW11 Dr. Sanjeev, who had examined accused Gabbar, were dropped by learned Additional PP. In addition to this, accused also admitted MLC of prosecutrix Ex.PW3/A, report of medical 4 board Ex.PW9/A whereby age of prosecutrix had been determined as well as his own MLC dated 06.04.2012 and his arrest and personal search memos i.e. Ex.PX, Ex.PY and Ex.PZ respectively and stated that he had no objection if concerned witnesses were not examined in the Court. Thus PW3 Dr. Vineet Kumar Soni and PW9 Dr. Rajiv Ranjan were also not examined again during the course of trial of accused Amit.
5 The witnesses examined by prosecution included the PW1, who is the prosecutrix. She proved the statement given by her to the police as Ex. PW1/A and also proved her statement under section 164 Cr.PC, which she gave before learned MM, as Ex. PW1/B. 6 The PW2, Dharampal, is the father of the prosecutrix. He deposed that on the day of incident when he came back to his house from his job at 10 p.m., he noticed that his daughter, who had gone to his brother's house for preparing meals, had not returned till late in the night. He, therefore, went to the police station and lodged a missing report. He further deposed that thereafter he went to the house of accused Keshav but said accused was not traceable and his parents informed PW2 that accused Keshav had not returned home and that accused Keshav came back to his house in the morning and told PW2 that he would bring back his daughter and thereafter PW2 along with 45 other persons as well as accused went to a house from where accused Keshav got recovered the 5 prosecutrix. The PW2 then deposed that he went along with his daughter to the police station and that his daughter prosecutrix was got medically examined and that accused Keshav was arrested by the police. He identified accused Amit as one of the persons, who had committed rape upon the prosecutrix. 7 During his crossexamination, PW2 denied that police had obtained his thumb impression on blank papers. He, however, stated that he was illiterate and had not read his statement that had been recorded by the Police. The PW2 also stated that the prosecutrix had gone to the school only for 1 / 2 years and could not studied further as his wife had expired. He could not tell the name of the school in which prosecutrix had studied. The PW2 could not state the date of his own marriage or date of birth of any of his children. He, however, stated that the prosecutrix was his youngest child and was aged about 16 / 17 years at the time of incident. He could not tell exact date of birth of the prosecutrix. 8 The PW4, Lady Constable Asha, had taken the prosecutrix to DDU hospital for her medical examination and deposed that after the medical examination of the prosecutrix, the concerned doctor had handed over two sealed pullandas bearing the seal of CMO DDU hospital and a sample seal to her which she handed over to the IO, who seized the same vide seizure memo Ex.PW4/A. 9 The PW6, Constable Anand, is a witness to investigations carried 6 out in the case by the IO. He deposed that accused Gabbar had surrender in the Court of Ms Barkha Gupta, learned MM, on 30.08.2007. He proved the arrest memo of accused Gabbar as Ex. PW6/A, his disclosure statement as Ex. PW6/B and the pointing out memo of place of commission of offence, prepared at the instance of accused Gabbar, as Ex. PW6/C. He further stated that accused Gabbar was got medically examined at DDU hospital and samples taken from the accused as well as sample seal were handed over to IO by the concerned doctor, who seized the same vide memo Ex.PW6/D. 10 The PW7, HC Lachhi Ram, had taken the exhibits of the case to FSL and deposed regarding the same.
11 The PW8, HC Anil Kumar, was posted as MHC(M) at PS Uttam Nagar at the relevant time. He produced the original register No.19 and proved the relevant entries regarding the deposit of exhibits in the case and sending them to FSL as Ex.PW8/A to Ex.PW8/D. 12 The PW12, HC Karan Singh, was posted as DD Writer at PS Uttam Nagar on 17.06.2007. He deposed that on that day at about 10:40 AM, wireless operator gave him information that one boy had kinapped a girl at Chauhan Property Dealer, Vikas Vihar, Murga Chowk, Yadav Enclave, Uttam Nagar, and had been overpowered and that he reduced the said information into writing vide 7 DD No. 16 A. The PW12 produced the original DD register and proved the copy of said DD as Ex. PW12/A. 13 The PW13, Ms Rekha, learned Metropolitan Magistrate, who had recorded the statement of prosecutrix u/s.164 CrPC. She proved the relevant proceedings i.e. the statement of prosecutrix as Ex. PW1/B and certificate given by her thereupon as Ex.PW13/A. 14 The PW18, ASI Naval Singh, is the IO of the case. He deposed that on 17.06.2007, on receipt of DD No.16 A i.e. Ex.PW12/A, he along with HC Ami Lal went to Yadav Enclave, Vikas Nagar, where Dharam Pal produced accused Keshav and that said Dharam Pal told PW18 that accused Keshav had raped his daughter and that the prosecutrix was also present at the spot. The PW18 further deposed that he called W/Ct. Asha from PS and thereafter he along with HC Ami Lal and W/Ct. Asha took prosecutrix to DDU Hospital, where she was got medically examined in presence of her Mausi. Thereafter, he recorded the statement of prosecutrix and prepared rukka Ex.PW18/A thereupon and got case FIR registered through HC Ami Lal. After registration of the case FIR, HC Ami Lal brought copy of FIR and original rukka and handed them over to PW18 in the hospital. After that PW18 deputed HC Ami Lal for medical examination of accused Keshav while he himself came to the spot and prepared the site plan Ex. PW18/B on the pointing out of prosecutrix and brought her back to PS. In the 8 meantime, HC Ami Lal also brought back accused Keshav and the samples taken from accused were seized by PW18 vide memo Ex.PW15/A. Thereafter accused Keshav was arrested vide memo Ex.PW2/A and was personally searched vide memo Ex.PW2/B and the prosecutrix was also handed over in custody of her father.
15 On 18.06.2007, PW18 recorded disclosure statement of accused Keshav vide memo Ex.PW2/C and further prepared the pointing out memo of the place of occurrence Ex. PW18/C at the instance of accused Keshav. 16 On 22.06.2007, PW18 moved an application for bone age Xray of prosecutrix and got conducted the bone age test of the prosecutrix on 26.06.2007. On 02.07.2007, he got recorded statement of prosecutrix under section 164 Cr.PC. Later the exhibits of the case were sent to FSL. As accused Amit could not be arrested at that time charge sheet qua accused Keshav and Gabbar was filed in the Court.
17 During his crossexamination PW18 stated that he had not recorded statement of any person at Yadav Enclave. He further stated that prosecutrix had not given description of accused Amit and that he had also not got any sketch of accused Amit prepared. The PW18 could not give specific dates on which he had searched for accused Amit. He also admitted that he had not got accused Amit 9 medically examined for assessment of his sexual capability. 18 The PW1A, HC Satish Kumar, was part of the police team which had apprehended accused Amit on 06.04.2012. He deposed that on that day, he was on night patrolling duty along with Ct. Sanjeev and Ct. Narender and on receipt of secret information, accused Amit was apprehended from bus stand of route No. 863, Shiv Vihar, Delhi. He proved the arrest memo of accused as Ex.PW1A/A, his personal search memo as Ex.PW1A/B and further deposed that accused was medically examined at SGM Hospital and was thereafter brought to PS and put behind lock up and that DD No.8 B i.e. Ex.PW1A/C was recorded regarding arrest of accused. The PW1A proved the kalandra u/s.41.1 (c) CrPC prepared by him qua accused Amit as Ex.PW1A/D and stated he had given information regarding arrest of accused to PS Uttam Nagar and had later handed over the documents regarding arrest of accused and kalandra to ASI Nawal Singh of PS Uttam Nagar. 19 After closing of prosecution evidence, statement of the accused Amit was recorded under section 313 Cr.PC, wherein he stated that he is innocent and has been falsely implicated in the case. He further stated that he was residing in his house and was arrested from the bus stop while he was going for some work and no notice or warrant in this case had been served upon him and hence, he was unaware of the proceedings of the present case. The accused declined to lead evidence in his defence.
1020 Arguments have been addressed by learned Amicus Curie for the accused as well as learned Additional PP for the State.
21 Learned Additional PP has contended that the prosecutrix has fully supported the case of the prosecution and that she has clearly deposed about the manner in which she was forcibly taken away by the accused Amit and his co accused and that she has also deposed about the manner in which accused committed rape upon her and that since the prosecutrix was about 15 years old at the time of incident, she was not in a position to give consent to the accused to take her away from the custody of her parents being less than 18 years of age. The prosecution has relied upon the statement of prosecutrix, her father as well as report of medical board in this regard.
22 On the other hand learned counsel for accused has contended that accused is innocent and that he has been falsely implicated in the case and has prayed that he be acquitted of charges in the present case. 23 I have heard the submissions made before me and also perused the record carefully.
24 In the cases of offence of kidnapping and rape, the primary question 11 for consideration is the age of the prosecutrix. The age is most relevant fact / issue as it is necessary to determine whether prosecutrix had the capacity to give consent to go with the accused or to indulge in sexual act. 25 The prosecution has not placed any documentary proof of date of birth, of the victim in the form of her school certificate, birth certificate, etc.. The prosecutrix has testified in her cross examination that she does not know her date of birth. She did not know even the year or month of her birth. 26 The PW2 Dharam Pal is the father of the prosecutrix. He deposed that his daughter was 15 years of age at the time of incident. The PW18 ASI Nawal Singh, investigation officer in his cross examination merely stated that parents of prosecutrix could not produce her birth certificate. On the other hand, father of the prosecutrix stated in his cross examination that his daughter had attended school for 23 years. It is apparent that IO made no effort to collect the age proof of prosecutrix from the school attended by her. Further the testimony of father of prosecutrix regarding her age is also vague in as much as he has also not give exact date of birth of prosecutrix and gave only her approximate age. In such circumstance, the statement of PW2 Sh. Dharam Pal cannot be given much importance for the purpose of determination of age of his daughter/prosecutrix. 27 The court is thus left with report of ossification test of the prosecutrix 12 to determine her age. As per report of medical board Ex.PW9/A, the prosecutrix was more than 15 years but less than 16 years as on the date of examination i.e. 26.06.2007. The Hon'ble Himachal Pradesh High Court in the case reported in 1987 Crl. L.J. 1266, titled as Paramjit Singh Vs State of Himachal Pradesh held that in a case of ossification test, the margin of error on either side varies from 1 ½ to 2 years and benefit shall always go to the accused. In that case also, radiologist had determined the age between 16 to 17 years. It was held that in the case of radiological test, hereditary , diet, climate etc. play important role in the fusion of epiphysis. It is normally accepted that fusion of epiphysis takes place early in the case of rich diet and hot climate and is usually delayed in the case of poor diet and cold climate. Similar view was taken by Hon'ble Allahabad High Court in the case reported in IV 1993 (1)(Crimes)1009 and it was held that margin of errors of two years on either side should be given to the accused in determining the age on the basis of ossification test. The Hon'ble Supreme Court has similarly observed in a case reported in AIR 1982 SC 1297 Jaya Mehta Vs Home Secretary J & K and others.
28 On the basis of aforesaid judicial pronouncement, the accused is entitled for the benefit of two year on either side for computation of the bone age of the prosecutrix. Hence, the bone age of the prosecutrix with margin of error of two years and benefit to the accused will be between 17 to 18 years at the relevant time.
1329 Further the Division Bench of Hon'ble High Court has held in the case reported in AIR 1991 JCC 413, titled as Mahavir Vs State that statement of prosecutrix holds the key in the case of sexual assault. The prosecutrix has deposed that she had gone to the house of her aunt for preparing meals. At about 8/8.30 PM, accused Keshav, who used to drive TSR, met her and made her to sit forcibly in the TSR and took her to Narela. Accused Gabbar and Amit (accused herein) met them at about 2 am and they took her to Eucalyptus garden and inside the garden she was raped by accused Gabbar, Amit and Keshav. Accused Amit and Gabbar went away after committing rape. Accused Keshav came outside the park with her and then he also ran away from there along his TSR. She deposed that thereafter she came back to her house and told this fact to her father, who made a call to the police. Police came at their house and recorded her statement Ex.PW1/A. She was then got medically examined and her salwar was seized by the doctor, who examined her. She also pointed out the place of occurrence to the police. According to her, her statement u/s 164 Cr.PC Ex. PW1/B was recorded after 45 days. In her cross examination, she testified that accused Keshav met her in market and that place where accused Keshav (since acquitted on 30.03.2010) met her is surrounded by houses and that there were some shops also in gali. She further deposed that accused Keshav had taken out his belt to make her sit forcibly in TSR and so she could not raise any alarm and she had so stated to Police in her statement Ex.PW1/A but this fact was not found recorded therein. 14 The prosecutrix could not tell name of the park where she was allegedly taken to by the accused persons but stated that distance between the said park and the gali, from where she was forcibly taken by accused Keshav, was about 15 - 20 minutes run in TSR. The PW1 denied that there were 8 red lights between the gali to the park where incident took place. The PW2 then deposed that accused Keshav met her in gali at about 8:00 or 8:30 PM and it was 2:00 or 2:30 AM when he took her to park. As regards accused Amit she said that she had seen him prior to incident as he used to pass from her gali and that she came to know his name when accused Keshav called him by his name in presence of PW1, on the day of the incident. The PW1 admitted that there were flats and shops opposite the main gate of park and road outside the park was also frequented by vehicles. The PW1 then deposed that accused Amit and Gabbar met accused Keshav 15 - 20 minutes after accused Keshav lifted her from gali and that they met him opposite the road of the park and that accused Keshav took her to various places till 2:00 AM and that he also took her to a restaurant / dhaba where he and his co accused had food and that accused persons offered food to PW1 also but she refused.
30 The PW1 then deposed that accused Amit and his coaccused left her in park after committing rape upon her and that after some time i.e. at about 8:00 or 9:00 AM, accused Keshav came to park along with her father and she went back with her father. The PW1 admitted that she did not raise alarm 15 anywhere on the way. She claimed that it was so as she was under threat of the accused. The PW1 admitted that her clothes were neither torn nor soiled in the incident. She also stated that she sustained bruises on her back during the incident. During her further crossexamination, PW1 stated that she could see many public persons from the spot where she was standing in the park but she did not call any of the said public persons nor did she approach them personally by walking upto them. The PW1 also stated that she had not visited the place of incident with the Police. The PW1 then deposed that accused Keshav met her just outside her chachi's house and that she did not call for her chachi when accused took her forcibly in TSR. She volunteered to state that since her chachi remained unwell she had not called for her. The PW1 denied the suggestion that she had herself gone with accused Keshav in TSR and that at that time accused Keshav was driving the TSR while she was sitting on the back seat. The PW1 again volunteered to state that boy named Pappu was driving TSR and accused Keshav was sitting with her on back seat and that she had told this fact to the Police. The PW1 was confronted with her statement Ex.PW1/A where it was not so recorded.
31 It is noteworthy that PW1 had earlier appeared before the Court on 28.01.2008, during trial of accused Keshav and Gabbar (both acquitted on 30.03.2010) and at that time, in her crossexamination she deposed that accused Keshav took her around the Gandanala for about an hour and that accused 16 Keshav had forcibly pulled her out of her aunt's house. She further stated that she had raised alarm but nobody saved her. According to her, accused Keshav was driving three wheeler and she was sitting on the back seat. She further testified in the cross examination that accused took her to a hotel between 10.15 p.m. to 2 a.m. 32 According to prosecutrix, all the three accused took dinner in the hotel while she kept sitting in the TSR outside the hotel. The accused persons took ten minutes in taking dinner. She admitted that there were public persons in the hotel but she did not tell anybody that accused persons had forcibly abducted her. She further stated in the cross examination that all the accused left the TSR at the gate of th park and left on foot. She also stated that her house is at a 15 minutes walking distance from eucalyptus garden and that she came to her house on foot. She further stated that she reached her house at 11.00 a.m. / 12.00 noon. According to her, she became unconscious after the rape in the park and regained her consciousness at about 10 a.m. She further testified in her cross examination that accused had taken her to gandanala from the school side. She admitted that school belonged to Mukesh Sharma, MLA and that there was a police booth near the school. She further stated that they went to Ranhola village after passing from the front of Holy Convent Public School and that she had raised alarm on reaching Ranhola village. She admitted that Ranhola village is densely populated but according to her at that time nobody was present as it was night time. She further 17 stated that she had not disclosed about the incident to the gardener, present in the park and had not raised any alarm in the park at the time of incident. 33 Thus there are considerable discrepancies brought out from the crossexamination of prosecutrix recorded on 28.01.2008 and 14.05.2013 respectively, regarding the manner in which prosecutrix claims she was abducted by accused Keshav and ultimately taken to park where she was raped by accused Amit and accused Gabbar and Keshav (since acquitted on 30.03.2010). These contradictions become all the more relevant in view of statement of prosecutrix u/s. 164 CrPC, Ex.PW1/B, wherein she stated on the day of incident, she had gone to her chachi's house to prepare food and there accused Keshav told her to come with him for outing (ghumne chalte hai) and so prosecutrix went with him. Accused Keshav took her to Narela and then Safeda Park at Hatsal Village at 2:30 AM where accused Gabbar and Amit were also present and there all three accused raped her against her wishes and went home while prosecutrix returned home in the morning.
34 In the case of Mahavir Vs State 1994 JCC 413 prosecutrix went to Railway Station and remained standing there alone while accused had gone to purchase the tickets, traveled with accused for long hours in a compartment shared by other passengers and then went on a Tonga which too was shared by passengers, yet she did not lodge any protest, raised no banner of revolt and 18 made no attempt to flee, it was held that it was impossible to believe prosecutrix. 35 In the present case also it is seen that the statements made by the prosecutrix are not only full of contradictions but they reveal that no effort was made by prosecutrix to raise alarm or to attempt to flee from the clutches of the accused persons. In her complaint Ex.PW1/A, prosecutrix states that she had gone with the accused when he asked her to accompany him for an outing and that she went with him in his TSR. She has reiterated this in her statement u/s.164 CrPC Ex.PW1/B, however, when prosecutrix appeared to depose before the Court as PW1, she stated that accused Keshav had made her sit in TSR forcibly. During her crossexamination on behalf of accused Keshav and Gabbar (both acquitted on 30.03.2010), prosecutrix stated that she had raised alarm when accused forcibly pulled her out of her aunt's house but nobody raised alarm. When prosecutrix was crossexamined on behalf of accused Amit on 14.05.2013, she again changed her version and stated that accused Keshav met her on way back to her house from chachi's house and that he made her sit in TSR forcibly and that at that time he threatened her with a belt due to which she could not raise alarm. She also introduced another person namely Pappu and stated that when she was pulled in TSR forcibly by accused Keshav, she was made to sit on the back seat of TSR with Keshav while boy named Pappu was driving the TSR and that she had told about it to the Police in her statement Ex.PW1/A but no such fact was found recorded in the said statement. Further contradictions also 19 reflected from the statement(s) of prosecutrix. As per case of the prosecution, the prosecutrix was abducted by accused Keshav at about 8:00 - 8:30 PM and they reached the park where she was allegedly raped by accused persons at about 2:00 AM. During her crossexamination recorded on 28.01.2008, prosecutrix stated that accused took her to hotel between 10:15 PM to 2:00 AM and that all the three accused took dinner in the hotel and she kept sitting in TSR outside the hotel for the period of 10 minutes when accused were having their dinner. There were public persons in the hotel but prosecutrix did not tell anybody that accused had forcibly abducted her. In her crossexamination on behalf of accused Amit recorded on 14.05.2013 also the prosecutrix stated that accused Keshav took her to various places till 2:00 AM and that he had also taken her to restaurant / dhaba where he and his coaccused had food and that they also offered her food but she refused. It is indeed surprising that prosecutrix kept roaming around in TSR with accused Keshav from 8:00 - 8:30 PM till about 2:00 AM yet she did not make any effort to escape and even when the accused persons, including accused Amit, were having dinner, she continued to sit meekly in the TSR without any attempt to raise alarm or to escape from the TSR despite the fact that several public persons were present there. Further the manner in which the prosecutrix was recovered is also doubtful. In her complaint prosecutrix stated that after committing rape upon her, accused Gabbar and Amit went away while accused Keshav came out of the park with her and thereafter he left her there and went away in his TSR while prosecutrix returned back to her home and informed her father, who in turn 20 informed the police and that her father apprehended accused Keshav in gali. In her statement u/s.164 CrPC, prosecutrix stated that accused committed rape upon her and thereafter they all went to their respective houses and that she returned back to her home in the morning and informed about it to her father and her father caught hold of accused Keshav from his house and informed the police. In her examination in chief as PW1, prosecutrix reiterated the averments made in her complaint Ex.PW1/A, however, during her crossexamination (recorded on 28.01.2008), she deposed that she had become unconscious after being raped by accused persons in the park and that she regain consciousness at about 10:00 AM and that when she came out of the park, TSR was parked outside the park and no public persons was present there except for one gardener. She further stated that accused Keshav was at his house when her father called police and that her father had given a call to police from a STD booth. During her cross examination on behalf of accused Amit recorded on 14.05.2013, prosecutrix gave another version stating that accused Amit and his coaccused left her in the park after committing rape upon her and that after some time accused Keshav came along with her father in the park at about 8:00 - 9:00 AM and thereafter she went home with her father and that no police officials came to the park with her father and at that time several public persons were present in the park but she did not raise any alarm.
36 Further according to prosecutrix, she herself came back to the house 21 and reported the matter to her father who informed that police. But her father has a different story to narrate. The PW2 Dharam Pal deposed that it was accused Keshav who had got recovered his daughter from a house and then he took his daughter to police station. On the other hand, IO states that on receipt of DD No. 16A, he went to Yadav Enclave, Vikas Naar where Dharam Pal had produced the accused Keshav. IO also stated that he went to the spot at Safedawala park with prosecutrix and prepared the site plan on her pointing out but the prosecutrix states that after her return from police station she did not go anywhere. 37 Considering the discrepancies in the testimony of the prosecutrix it was necessary that the same be corroborated by some independent evidence, however, it is seen from the record that the FSL result also does not support the prosecution story in as much as no human seman was detected on the salwar of prosecutrix. No external injuries were found on the body of prosecutrix. It is beyond comprehension that prosecutrix offered no resistance while being subjected to rape. From the crossexamination of prosecutrix, it is brought out that neither her clothes were torn nor soiled during the incident. She, however, stated that she had sustained bruises on her back. Per contra, the MLC of the prosecutrix, does not support her claim that she had sustained any external injury let alone bruises on her back as claimed by her.
38 Moreover in the present case IO has not got accused Amit examined 22 for determination whether he was capable of performing sexual intercourse or not. A simple MLC of the accused Amit was procurred by the IO which does not give any clue regarding his sexual capability. This is a grave lacuna on the part of prosecution and prosecution has even failed to establish that accused was capable of performing sexual intercourse. As already discussed, the prosecutrix was more than 17 years of age at the time of incident and she had sufficient opportunity not only to run away from the TSR while she was sitting alone outside the hotel but she could also have taken the help of passerbys. In these circumstances, possibility of her being consenting party to the incident cannot be ruled out.
39 The Apex Court in Shyam and Anr. Vs State of Maharashtra AIR 1995 SC 2169 while dealing with a case of similar nature observed as under : "The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of aged, but still she was in the age of discretion, sensible and aware of the intention of the accused Shyam that he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle or put u a struggle and, in any case raise an alar to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam the appellant on her own and in that sense there was no taking out of the guardianship of her 23 father. The culpability of neither Shyam, A1 nor that of Suresh, A2 in these circumstances, appears to us established. The chanrge against the appellant/accused under section 366 IPC would thus fall. Accordingly, the appellants deserve acquittal."
40 Further in appreciating the statement of prosecutrix, I am supported by the judgment of Kuldeep Kumar mehto Vs State of Bihar AIR 1998 SC 2694 wherein it was held that where the prosecutrix was less than 18 years of age and medical evidence showing no injuries on the person of prosecutrix and her private parts, the prosecutrix was taken to a tempo on a particular place and the evidence of prosecutrix not indicating that accused had kidnapped the prosecutrix with intention to marry her against her will or that she may be forced to illicit intercourse, the allegations of rape or that of section 366 were not made out and conviction of accused was held to be improper.
41 The nutshell of foregoing discussion is that from the testimony of the prosecutrix as well as other material placed on record, the prosecution has failed to prove that accused Amit had kidnapped prosecutrix on 17.06.2007, out of keeping of her lawful guardian or that accused had kidnapped the prosecutrix with intent to force her to illicit intercourse or that committed rape upon her. Accordingly, I acquit accused Amit of the charged offences, giving him benefit of doubt for the offences u/s. 363/366A/376 (2)(g)/174A/34 IPC. 24
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 23.05.2013) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi.
25
FIR No.491/2007
PS Uttam Nagar
State Vs. Amit
At 4:00 PM
22.05.2013
Present: Ld. Additional PP for the State.
Accused Amit produced from JC with counsel Ms. Sindhu Sakkarwal, learned Amicus Curie.
I am busy with bail matters assigned to me by learned Distt. & Sessions Judge, Rohini Court, Delhi. Hence, no time left.
Be listed for judgment on 23.05.2013.
Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
23.05.2013
Present: Ld. Addl. PP for the State.
Accused produced from JC with counsel Ms. Sindhu Sakkarwal, learned Amicus Curie.
Vide separate judgment, announced today in the open Court, accused Amit has been acquitted of the charged offence.
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Accused is in custody, be released, if not wanted in any other case. File be consigned to Record Room.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 23.05.2013