Delhi District Court
Sc No: 57787/16 State vs . Lokender & Ors. on 16 July, 2016
SC No: 57787/16 State Vs. Lokender & Ors.
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 57787/16
FIR No. 398/11
Police Station Shahbad Dairy
Under Section 376/363/368/372/373
IPC.
ID No. 02404RO-082152012
State
Versus
1. Lokender Kumar @ Dholu
S/o. Sh. Mahender
R/o. Village Raheespur, PS Kavi Nagar,
Distt. Ghaziabad, UP.
.
2. Chotte Lal
S/o. Sh. Shyam Lal
R/o. Village Sirhol, Sec. 18, Gurgaon, Haryana.
3. Meena Devi
W/o. Late Sh. Raju @ Raj Kumar
R/o. Gali No. 1, Jwalapur,
Rajiv Nagar Colony, Uttrakhand.
Judgment 1 of 45
SC No: 57787/16 State Vs. Lokender & Ors.
4. Sunita @ Meenu
W/o. Sh. Ram Babu
R/o. H. No. 41, Mohalla Rajiv Nagar,
Arya Nagar, Near Lal Mandir,
Jwalapur, Haridwar, Uttrakhand.
5. Vijay Rai (proclaimed offender)
S/o. Late Sh. Dalip Rai
R/o. Village Kali, VPO & PS Basunti,
District South, 24 Pargana, West Bengal.
......Accused Persons
Date of institution 23.04.2012
Judgment reserved on 01.06.2016
Judgment Pronounced on 16.07.2016
Decision Meena Devi &
Suinta are
convicted
JUDGMENT
1. On 17.12.2011, complainant (brother of prosecutrix "A") lodged a complaint with PS Shahbad Dairy that on 15.12.2011 at about 2 PM his sister aged about 16 years went to purchase some articles but she did not return back. On 15.12.2011 at about 10.25 PM he received a call from mobile no.
Judgment 2 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
09717588298 on which he talked to prosecutrix who told complainant that she is siting in Saryu Jamna Train and is going to her native village. After about 15 minutes complainant called on the said mobile phone upon which the person who received the call told him that he is speaking from Gurgaon. Complainant stated that in the morning at about 9.30 AM on 15.12.2011, he had received a call from mobile no. 09990297372 which was picked by his wife but the caller after saying "Hello" disconnected the phone. On 17.12.2011 at about 2 PM, when he called at 09990297372 then a person who picked the phone told him that on 16.12.2011 he had dropped prosecutrix at station. Complainant further stated that on 15.12.2011 also he had called at 100 and thereafter he searched for the prosecutrix but after receiving the call from the prosecutrix that she was going to her native village, complainant did not report the matter but since the prosecutrix did not reach at her native village nor her whereabouts could be known to the complainant, complainant lodged her missing report. This complaint resulted in FIR in question u/s 363 IPC.
Judgment 3 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
2. On 06.01.2012, prosecutrix was recovered from the house of accused Lokender @ Dholu. Accused Lokender was arrested and statement of prosecutrix was recorded. Statement of prosecutrix u/s 164 Cr.P.C. was also recorded on 10.01.2012. Photographs of marriage between the prosecutrix and accused were collected and sections 366A/376 IPC were added. Prosecutrix in her statement stated that she got married to accused Lokender forcibly by two ladies namely Meena and Beena. Subsequently, Meena and Vijay Rai were arrested. As per the investigations, it was found that accused Meena and accused Vijay Rai received a sum of Rs. 70,000/- from accused Lokender to marry prosecutrix with him and hence Sections 368/372/373/34 IPC were also added. Accused Meena, Vijay Rai and Lokender were initially charge-sheeted.
3. As per the charge-sheet, matter was re-investigated vide orders dated 18.07.2012 and during investigation, the statement of prosecutrix was again recorded on 18.08.2012 Judgment 4 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
wherein prosecutrix alleged that she was abducted/taken away to Gurgaon by Chotte Lal and was raped by him. Prosecutrix also alleged that on the next day, Chotte Lal took her to Railway Station and handed over her to two women out of which one was Sunita. Those women took her to Jwala Pur where prosecutrix was got married to accused Lokender without her consent. Hence, accused Chotte Lal and accused Sunita @ Meenu were also charge-sheeted.
4. Charge for the offence punishable under Section 120B/363/366/366A/368/372 IPC read with Section 120B was framed against accused Meena, Vijay Rai, Chotte Lal and Sunita @ Meenu. Additionally charge for offence punishable u/s /376 IPC was framed against accused Chotte Lal. Charge for offence punishable u/s 373/376 IPC was framed against accused Lokender. Accused Meena Devi and Vijay Rai were also charged for the offence punishable U/s 363/366/368/372 IPC. Accused persons pleaded not guilty and claimed trial.
Judgment 5 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
5. Accused Vijay Rai absconded during trial of the case and was declared proclaimed offender vide orders dated 29.09.2015.
6. Prosecution in all examined 18 witnesses.
7. PW1 HC Mahesh Kumar tendered his examination in chief by way of an affidavit Ex. PW1/1. He proved FIR in question as Ex.PW1/A and his endorsement on rukka as Ex. PW1/B.
8. PW2 WCt. Sudesh tendered her examination in chief by way of an affidavit Ex. PW2/1 and she was part of the team of SI Sat Narayan and went to village Rayees Pur, Ghaziabad, UP at the house of accused Lokender, from where prosecutrix and accused Lokender were apprehended.
Judgment 6 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
9. PW3 WCt. Seema also tendered her examination in chief by way of an affidavit Ex. PW3/1. She proved arrest and personal search of accused Meena Devi as Ex. PW3/A & B. She proved disclosure statement of accused as Ex. PW3/C.
10. PW4 Ct. Ravinder also tendered his examination in chief by way of an affidavit Ex. PW4/1. He was part of investigation team who recovered the prosecutrix from the house of accused Lokender. On 18.01.2012, he again joined the investigation and apprehended accused Meena and Vijay Rai from Dehradun and Haridwar. He proved the arrest of accused Lokender and his personal search as Ex. PW4/A & B. He also proved disclosure statement of accused as Ex. PW4/C. He proved the arrest of accused Vijay Rai, his personal search and disclosure statement as Ex. PW4/D, E & F. Judgment 7 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
11. PW5 Dr. Amit Shokeen medically examined accused Lokender vide MLC Ex. PW5/A. He collected the samples and undergarments of accused and handed over them to IO.
12. PW6 Dr. Neha Kumar medically examined prosecutrix on 07.01.2012 vide MLC Ex. PW6/A and also filled proforma meant for sexual assault patients as Ex. PW6/B. She collected various samples of prosecutrix and handed over to IO.
13. PW7 is prosecutrix. She supported the prosecution case. Prosecutrix testified that after she was recovered her statement Ex PW7/A was recorded before Ld MM but the said statement was made under influence of IO Satya Narayan who told her that in case she will tell the Court that she voluntarily went to Haridwar and willingly married accused Lokender of her own then she would be let off otherwise her brother would be sent to jail. Prosecutrix proved the pointing out memo prepared at her Judgment 8 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
instance of the place where she was forcibly married to accused Lokender as Ex PW7/B. She proved the pointing out memo prepared at instance of accused Sunita @ Meena of Old Delhi Railway Station from where she was taken to Haridwar as Ex PW7/C. Prosecutrix proved the arrest of accused Chotte Lal vide memo as Ex PW7/D. She proved her statement again recorded u/s 164 Cr.P.C as Ex PW7/E.
14. PW8 Dr. Ekta Kale testified as to the medical examination of the prosecutrix vide MLC Ex. PW6/A & B.
15. PW9 SI Anju Dahiya proved arrest of accused Sunita and her disclosure statement as Ex. PW9/A & B.
16. PW10 WCt. Sudesh proved the pointing out memo Ex. PW7/B prepared at the instance of accused Sunita @ Meenu where the prosecutrix was kept by them and sold to accused Lokender.
Judgment 9 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
17. PW11 is brother of prosecutrix and complainant in this case. He proved the missing complaint lodged by him in respect of his sister as Ex. PW11/A. He deposed that from the call details, he reached the house of accused Chotte Lal where he met a friend of accused Chotte Lal who confirmed that Chotte Lal had brought a girl in that house. The said person took the complainant and the police staff to a factory where they met one Ajay who took them to a factory where Chotte Lal was working but Chotte Lal could not be found there. Complainant further deposed that he along with the police officials went to the native place of accused from where accused was apprehended. He proved arrest of accused Chotte Lal as per memo Ex. PW11/B, his personal search as Ex. PW11/C and his disclosure statement as Ex. PW11/D. Complainant further deposed that on the basis of call details, he reached at the house of accused Lokender from where his sister/prosecutrix was recovered and was brought to Delhi along with accused Lokender. Complainant proved the recovery memo of the prosecutrix as Ex. PW11/B and also the arrest of accused Judgment 10 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
Lokender. He also deposed in respect of pointing out the place by the prosecutrix and accused Sunita@ Meena.
18. PW12 Beena deposed that one Bala told her that she wants to get marry his Dharam Bhai and looking for a bride. Accused Meena told her that there is one girl in her relations and therefore PW12 should talk about marriage of that girl with the brother of Bala. She arranged a meeting of Meena and brother of Bala namely Lokender at the house of accused Meena and thereafter she came to know that accused Lokender got married to that girl fraudulently.
19. PW13 Rana Pratap Mishra proved the date of birth of prosecutrix as 15.08.1995 by producing a transfer certificate Ex. PW13/A.
20. PW14 Bala Devi deposed that accused Lokender is her distant cousin and he was searching for matrimonial alliance.
Judgment 11 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
Thereafter, she contacted Beena devi who was a resident of Dehradun to look out for a bride for accused. Beena Devi suggested that daughter of accused Meena is of marriageable age and then she along with accused Lokender went to the house of accused Meena in the month of December 2011. Thereafter, she came to know that accused Lokender got married to said girl who was shown to him in the house of Meena.
21. PW15 Sh. Sunil Kumar, Ld. ARC recorded statement of the prosecutrix u/s 164 Cr.P.C on 18.08.2012 proved on record as Ex. PW7/E.
22. PW16 SI Sat Narayan is initial Investigating Officer. After recording the statement of complainant, he registered the FIR U/s 363 IPC. On 06.01.2012, he recovered prosecutrix from the house of accused Lokender. He proved the arrest of accused Lokender and recovery memo of prosecutrix. He got medically examined the prosecutrix and accused. He seized the exhibits of Judgment 12 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
accused Lokender vide seizure memo Ex. PW16/A-1. He recorded the disclosure statement of accused Lokender as Ex. PW16/B. Thereafter, he arrested the accused Meenu and Vijay Rai.
23. PW17 SI Deepak Malik proved the arrest of accused Sunita @ Meenu and accused Chotte Lal.
24. PW18 ACP K.P.S. Malhotra deposed that on 16.07.2012, the investigation of the case was entrusted to him. He again got recorded the statement of prosecutrix u/s 164 Cr.P.C. He arrested the accused Sunita @ Meenu and also prepared pointing out memo at the instance of accused Sunita. He also proved the arrest of accused Chotte Lal.
25. On conclusion of prosecution evidence statement of accused persons were recorded u/s 313 Cr.P.C.
Judgment 13 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
26. Accused Lokender sated that prosecutrix is legally married to him with her own consent and under pressure of her brother, prosecutrix falsely deposed against him.
27. Accused Chotte Lal in his statement stated that prosecutrix called him on the date of incident and told that her brother and bhabhi are scolding and beating her. Accused disclosed this fact to the brother of prosecutrix but he kept silent. Thereafter, prosecutrix at about 10 PM reached at his house and told her that she wanted to go to her native village. In the night she stayed with the accused in his room where his three other associates were present. On 16.11.2011, he called brother of prosecutrix and prosecutrix also had conversation with her brother thereafter accused dropped prosecutrix at Old Delhi Railway Station on a platform from where a train was bound for Azamgarh and he returned to his house at Gurgaon. Accused stated that he never made physical relations with prosecutrix nor assured to marry her.
Judgment 14 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
28. Accused Meena Devi in her statement stated that from her house, prosecutrix went with Bala and she does not know what happened thereafter.
29. Accused Sunita @ Meenu stated that prosecutrix met them at railway station where she along with Meena were present. Prosecutrix requested them to take her along with them as she doesn't have anybody in her family. Prosecutrix voluntarily accompanied them to Haridwar and stayed with them in the house of Meena. One day Bala came from Dehradun and prosecutrix left with her on her own account.
30. In defence, accused Lokender examined his brother- in-law Birender Singh as DW1who deposed that he was present in the marriage solemnized between prosecutrix and the accused and in his presence no money transaction or dowry articles took place. DW2 Bala is sister-in-law of accused Lokender. She also deposed Judgment 15 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
that she was present in the marriage solemnized between prosecutrix and accused Lokender and testified that after her marriage, prosecutrix stayed alongwith accused with them in their native village for about 15 days. She proved the photographs of the marriage as Ex. D-1 to D-10.
31. It has been contended on behalf of accused persons that the prosecutrix had voluntarily left her home. It has been submitted that prosecutrix did not make any attempt to return back home despite having opportunity to do so. It is submitted that there is no evidence to indicate that prosecutrix was sold or was abducted for the purposes of prostitution or illicit intercourse. It is further argued that the prosecutrix willfully married accused Lokender and thus the accused persons did not commit any offence and all of them are entitled to be acquitted.
32. Per-contra, Ld. Addl. PP submits that the prosecutrix in her testimony stated that accused Chott Lal not only enticed her Judgment 16 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
and he also raped her. Thereafter, accused Chotte Lal sold prosecutrix to accused Meena Devi & Sunita who in turn sold prosecutrix to accused Lokender. It is submitted that the testimony of prosecutrix which is reliable and trustworthy establishes the guilt of accused persons and in these facts accused are liable to be convicted for the offence they are charged with.
33. I have given thoughtful consideration to the arguments advanced and perused the material on record.
34. Age of the prosecutrix: Before dwelling upon the incident of kidnapping or sexual assault, let us find out what was the age of prosecutrix at the time of incident. In the present case, prosecution has relied upon a Transfer certificate of the school of the prosecutrix as Ex. PW13/A as per which the date of birth of prosecutrix is mentioned as 15.08.1995.
Judgment 17 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
35. Date of birth of prosecutrix is disputed by the defence by submitting that the school record of the prosecutrix cannot be taken as true indicative of her date of birth as PW13 who produced the school record could only produced a transfer certificate Ex PW13/A to establish her date of birth as 15.08.1995.
36. Juvenile Justice (Care and Protection of Children) Act, 2015, under Section 94 has laid down certain guidelines to arrive at a finding about the age of a juvenile. It states that the age inquiry would conduct by the Court by Certificate of School in respect of date of birth of juvenile, obtaining matriculation or equivalent certificate or the next option being the birth certificate issued by the municipal authorities or corporation or panchayat be obtained. In absence of aforesaid documents, a Medical Board will be constituted to determine the age of a juvenile.
Judgment 18 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
37. No document has been produced by the defense to controvert the date of birth of prosecutrix. In view of the mandate given under Juvenile Justice (Care and Protection of Children) Act, 2015, age of the juvenile(in present case, prosecutrix) as per her School record is taken to be true. School record goes to show that on the date of incident (15.12.2011) prosecutrix was about 16 years 4 months old. Thus, it has to concluded that prosecutrix had not attained the majority on the date she left her house.
38. Now let us examine the case of the prosecution against each of the accused.
39. Case against accused Chotte Lal: Accused Chotte Lal is facing trial on allegations of entering into conspiracy with accused Meena Devi, Vijay Rai & Sunita @ Meenu of kidnapping prosecutrix, keeping her in confinement, selling her and raping her.
Judgment 19 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
40. Initially statement of prosecutrix Ex. PW7/A was recorded U/s 164 Cr.P.C.. Its English translation reads as under:-
" On 15.12.2011, at 2 PM, I left my house and went to New Delhi Railway station. From there, I went alone in a bus to Gurgaon at the house of my cousin whose name is Chote Lal. He is my distant relative. I stayed with him at Gurgaon in his house. He did not commit any wrong act with me. I have undergone medical examination as well. He (Chote Lal) did not misbehave with me. On next day, he left me at New Delhi Railway Station. Chote Lal had told me to return my house. No wrong act has been committed with me and Chote Lal is innocent. I married Lokender on my own."
41. Another statement of prosecutrix as Ex. PW7/E was recorded u/s 164 Cr.P.C. on 18.08.2012. Its English translation reads as under:-
I want to tell that I stay with my brother and bhabhi at Shahbad Dairy. On 15.12.2011, when I was talking with brother of my friend Chotte Lal on phone, my brother saw me and started beating me. Thereafter, without telling my brother-bhabhi I left my house. Chotte Lal was standing in front of my house. Then, I went with him to Gurgaon in a bus. On reaching Gurgaon we went to his room which he had already taken on rent. We reached at that room by night time and we both stayed there. He forcibly committed wrong act with me. On the next morning, he took me to Old Delhi Railway Station from Gurgaon. There, Judgment 20 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
two women, one of them was Meenu @ Sunita and I do not know name of second woman.
Thereafter, those two women took me forcibly to Haridwar. On reaching there, I told them to let me talk to my brother but they did let me to talk to my brother and told me to first go to my house then she will let me to talk. But they did not allow me to talk and then they said that "why should they let me talk, do you want us to get apprehended". I asked them why you get apprehended? She stated that Chotte Lal had sold me to them and for this reason she would not allow me to talk to my brother. Then, they kept me for five days with them. I again asked them to let me talk to my brother but they did not do so.
Thereafter, she got 2-3 marriage proposals for me. I told her (Sunita) that I will not marry. Then both of them started beating me. They beat me 2-3 times and forcibly got me married to Lokender in Haridwar. After marriage he brought me to Ghaziabad. I stayed with Lokender for 15 days at his house. He also forcibly committed wrong act with me. Then, one day, I called Chotte Lal and narrated entire incident to him.
Thereafter, Chotte Lal informed police officials that he had received a call from this number and also that 'A' is in Ghaziabad. Next day, police reached at the house of Lokender and then took me and Lokender from there. Then we were brought to PS. Lastly, I want to tell you that Chotte Lal had promised to marry me but he did not marry me and committed wrong act with me. I pray to you that a Judgment 21 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
lawful action be taken against the persons who have committed wrong act with me.
42. Prosecution has submitted that in her testimony as well in her statement Ex. PW7/E prosecutrix has maintained that accused Chotte Lal not only enticed her on promise of marriage but he raped prosecutrix also and thereafter sold prosecutrix to accused Meena and Sunita @ Meenu.
43. Prosecutrix in her versions have stated as under:
a) About her relationship with accused:
Prosecutrix in her statement Ex PW7/A stated as under:
I went alone in a bus to Gurgaon at the house of my cousin whose name is Chote Lal. He is my distant relative. I stayed with him at Gurgaon in his house.
Prosecutrix in her statement Ex PW7/E stated as under:
I want to tell you that Chotte Lal had told to marry me but he did not marry me and committed wrong act with me.
Judgment 22 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
One Chote Lal is resident of my village and was known to me for last one year prior to incident....... one day when my brother had gone for his work Chotte Lal had telephoned me at my brother's house and he called me outside the house of my brother. He lured me out of love and asked me to accompany him on pretext that he would marry me.
(cross-examination) Chotte lal used to visit our village and he gave his mobile number to me. Chotte Lal provided me the mobile phone and SIM card.......... I was also agreeable to marry him.
b) About her going with the accused: Prosecutrix in her statement Ex PW7/A stated as under:
On 15.12.2011, at 2 PM, I left my house and went to New Delhi Railway station. From there, I went alone in a bus to Gurgaon at the house of my cousin whose name is Chote Lal. He is my distant relative.
Prosecutrix in her statement Ex PW7/E stated as under:
On 15.12.2011, when I was talking with brother of my friend Chotte Lal on phone, my brother saw me and started beating me. Thereafter, without telling my brother-bhabhi I left my house. Chotte Lal was standing in front of my house. Then, I went with him to Gurgaon in a bus.
Judgment 23 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
In her examination-in-chief prosecutrix deposed as under:
.... one day when my brother had gone for his work Chotte Lal had telephoned me at my brother's house and he called me outside the house of my brother. He lured me out of love and asked me to accompany him on pretext that he would marry me. On his asking I came out of my brother's house and from there he took me to his house at Gurgaon where he was staying on rent....
In her cross-examination prosecutrix testified;
...... I was taken to Gurgaon by accused Chotte lal by a bus from Delhi.
c) About Sexual Assault: Prosecutrix in her statement Ex PW7/A stated as under:
He did not commit any wrong act with me. I have undergone medical examination as well. He (Chote Lal) did not misbehave with me.
Prosecutrix in her statement Ex PW7/E stated as under:
We reached at that room by night time and we both stayed there. He forcibly committed wrong act with me.
In her examination-in-chief prosecutrix deposed as under:
....there accused Chotte Lal did ganda kaam with me and ganda kaam means he did rape upon me and kept me in the same room for whole night..
Judgment 24 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
44. It is evident from all the statements of prosecutrix that she was well acquainted with the accused Chotte Lal.
Prosecutrix was having mobile number of the accused with her. Accused Chotte Lal had also provided her a mobile phone and a SIM Card. She was also agreeable to marry the accused.
45. As far as the allegations of kidnapping against the accused Chotte Lal are concerned from all the statements of prosecutrix it can be inferred that the prosecutrix herself left her home on 15.12.2011. In her initial statement Ex. PW7/A, prosecutrix stated that at 2 PM, she left her house and went to New Delhi Railway Station. From there, she went alone in a bus to Gurgaon to the house of accused Chotey Lal.
46. In her statement Ex. PW7/E, she stated that on 15.12.2011 without telling her brother & bhabi, she left her house. In her both statements recorded u/s 164 Cr.P.C., prosecutrix did not level any allegation of kidnapping against the accused Chotte Judgment 25 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
Lal rather she maintained that after her brother-bhabhi scolded her, she left her house of her own.
47. It has been held in para 8 of the judgment titled as Bunty Vs. State (G.N.C.T.) of Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011 by the Hon'ble Delhi High Court that :
"8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had traveled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...."
48. In this regard, it would relevant to refer to the case titled as " S. Varadarajan Vs. State of Madras (reported as AIR 1965 SC 942)", where in while distinguishing between "taking" and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India that:
Judgment 26 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
" There is a distinction between " taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing , voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian."
49. In the present case also, the element of 'taking away' or 'enticement' is found to be lacking. In view of the material on record, it appears that prosecutrix who had attained the age of discretion had voluntarily left her home after her brother and bhabhi rebuked her. In these circumstances, the factum of kidnapping of prosecutrix does not stand proved.
50. Allegations of Sexual Assault: Prosecutrix in her statement Ex. PW7/E stated that accused forcibly committed wrong act with her in his room. In her examination in chief as well, she maintained that Chotte Lal raped her and kept her in the Judgment 27 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
same room for the whole night. However, during course of her cross-examination, prosecutrix testified that there was only one room in the said house and three persons were also residing in the said room. Prosecutrix deposed that the accused Chotte Lal and Ajay were present in the room in the night of 15.12.2011.
51. Testimony of prosecutrix shows that 2-3 other persons were residing in the same room where the prosecutrix stayed a night with accused Chotte Lal. Prosecutrix confirmed presence of one Ajay in that room in the night on 15.12.2011. If at all, accused committed forcible sexual assault on the prosecutrix, the prosecutrix could have easily taken help of other persons present in that room to thwart an attempt of accused Chotte Lal of committing sexual assault upon her. But she did not do so. Prosecutrix on the next morning was brought to the railway station by the accused Chotte Lal and was left there by accused but the prosecutrix did not lodge any complaint to anybody regarding the act of accused Chotte Lal of committing her sexual assault.
Judgment 28 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
52. It has to kept in mind that in her initial statement Ex. PW7/A, prosecutrix categorically stated that accused did not commit any wrong act with her nor accused misbehaved with her. Needless to say, there is no medical evidence in respect of any account of sexual assault by the accused Chotte Lal on the prosecutrix.
53. Thus, it has to be concluded that the prosecutrix had willfully gone to the house of accused. In the night there was presence of other persons in the said room where the prosecutrix spent the night with the accused. Despite having an opportunity to raise an alarm in case of her sexual assault, prosecutrix did not do so. Evidence of prosecutrix in totality and story projected by her is found to be improbable. Prosecutrix knew the accused prior to the incident.
Judgment 29 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
54. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime. It is clear that the prosecutrix had went with the accused voluntarily and did not make any complaint of her alleged sexual assault. Circumstances narrated above renders the testimony of prosecutrix not believable in respect of her sexual assault by the accused Chotte Lal.
55. Allegations of selling prosecutrix: Accused Chotte Lal is also facing trial on allegations of entering into conspiracy with accused Meena and Sunita @ Meenu to sell prosecutrix to accused Meena & Sunita. In her examination-in-chief, prosecutrix deposed as under:
".... At Old Delhi Railway Station he sold me to two ladies i.e. accused Meena & Sunita... There these ladies befriended with me and made inquiries as to where I wanted to go? I disclosed to them that one boy Judgment 30 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
left me at Railway Station. Thereafter, they won my confidence and told me that they would leave me at my brother's house and that I should not keep waiting for the boy at Railway Station. Intiallly I was hesitant and refused. Then Meena told me that she is going to Shahbad Dairy which is the same area where my brother resides and assured me that they would leave me at the house of my brother on which I accompany her but instead both the ladies took a bus for Haridwar and took me to Haridwar...."
56. Prosecutrix during course of her cross-examination deposed that at Railway Station accused made her to sit near a place where Meena and Sunita were already sitting. As per the prosecutrix in her presence accused did not speak to Meena and Sunita. Accused left her at railway station after telling her that he was going. When she was sitting at railway station, accused Meena and Sunita first started making inquiry from prosecutrix.
57. As per prosecutrix, no communication took place between accused Chotte Lal, Meena and Sunita. Prosecutrix was got befriended by accused Meena & Sunita and prosecutrix herself disclosed to them that accused Chotte Lal had left her at railway Judgment 31 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
station. In the light of this testimony of proscutrix it can be safely inferred that the accused Chotte Lal had left prosecutrix at Railway Station and if at all the prosecutrix wanted to go back to her house she had every opportunity to do so.
58. There is no evidence to establish any link between Chotte Lal, Meena and Sunita. Investigation agency has not collected any call record or any other evidence to establish that accused Chotte Lal, Meena and Sunita were known to each other prior to the incident or they had any connection thereafter. In the absence of such evidence and in the light of the testimony of the prosecutrix, the allegations against the accused Chotte Lal that he entered into a conspiracy with Meena and Sunita to sell prosecutrix to them stands not proved.
59. Allegations against the accused Meena & Sunita:
Accused Meena and Sunita are facing trial that they entered into criminal conspiracy with accused Chotte Lal to kidnap the Judgment 32 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
prosecutrix and marrying prosecutrix against her consent to accused Lokender.
60. As discussed above, no connection has been found between accused Chotte Lal, Meena and Sunita to substantiate of conspiracy between them to kidnap the prosecutrix or sell or marrying prosecutrix to accused Lokender. However, prosecutrix in her testimony has deposed in this regard as under:-
"........... Thereafter on the next day, he told me that he will leave me at my brother's house but instead he brought me to Old Delhi Railway Station and left me there. At the station, he sold me to two ladies i.e. accused Meena and Sunita. There, these ladies befriended me at the railway station and made enquiries as to where I wanted to go? I disclosed them that one boy had left me at the railway station. Thereafter, they won my confidence and told me that they would leave me at my brother's house and that I should not keep waiting for the boy at the railway station. Initially, I was hesitant and refused. Then Meena told me that she is going to Shahbad Dairy which is the same area where my brother resides and assured me that she would leave me at the house of my brother on which I accompany her but instead both the ladies took a bus for Haridwar and took me to Haridwar. Initially, I did not know that we were going to Haridwar but it was only at Haridwar because bus took extra ordinary long time and we traveled through Judgment 33 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
out the night that I came to know that I reached at Haridwar. I insisted to the accused Meena that I should speak to my brother but she refused stating that the moment she makes a call to my brother she might be caught. I told her why she would be caught since she had only helped me but she refused to call my brother. Thereafter, I was taken by Meena to her house at Haridwar where I was kept for five days therein the said house where I found three other girls like me. Tow of the girls were elder to me and one girl younger to me. None of them are present in the court today.
During those five days, I was repeatedly requesting Meena and the lady to permit me to speak to my brother but they refused but instead both of them gave me beatings. Thereafter, they brought two or three matrimonial alliances and asked me to marry anyone of the boy. I refused for the same and told them that I would not marry any of them without the permission of my brother and family members and insisted them that I shall be sent back to my brother. Out of those alliances, one was of the accused Lokender Kumar. After, five days, I was forcibly married to Lokender Kumar in a temple near an area where I was kept........ "
61. Prosecution has submitted that in her testimony as well in her statement Ex. PW7/E prosecutrix has maintained that accused Meena & Sunita @ Meenu took prosecutrix with them to Haridwar and there they sold prosecutrix to accused Lokender who married prosecutrix without obtaining her consent.
Judgment 34 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
62. Marriage of prosecutrix with accused Lokender is not in dispute. Accused Lokender examined two witnesses who further lend support to the prosecution case that accused Lokender married prosecutrix.
63. Question which needs to be answered as to whether the marriage between prosecutrix and Lokender was in actual selling of prosecutrix to accused Lokender or was it a marriage solemnized with the consent of prosecutrix?
64. It has been contended on behalf of accused Meena, Sunita & Lokender that prosecutrix willfully married accused Lokender and it is evident from her initial statement Ex PW7/A recorded u/s 164 Cr.P.C. It is argued that in the light of the said statement accused persons are entitled to be acquitted.
Judgment 35 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
65. True that in her statement Ex PW7/A prosecutrix stated that she willfully married accused Lokender, however, prosecutrix in her later statement Ex PW7/E and in her testimony prosecutrix maintained that she was lured by accused Meena & Sunita and was taken by them to Haridwar in their house. In few days time prosecutrix was married to accused Lokender by accused Meena & Sunita .
66. Prosecution relies upon a receipt Ex PW16/E purported to be executed by accused Meena which mentions that Meena received Rs 70,000/- from accused Lokender for arranging marriage between prosecutrix and Lokender. However, PW16/ IO during course of his cross-examination deposed that he did not send the receipt Ex PW16/E for obtaining opinion as to in whose handwriting the receipt is written nor he obtained thumb impressions to verify whether the same bears thumb impressions of accused Meena.
Judgment 36 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
67. In absence of any evidence to establish the genuineness of receipt Ex PW16/E, it's authenticity is under cloud. Moreover, the prosecutrix during her testimony categorically deposed that she does not know any person named Vijay Rai nor she had ever seen him. Said Vijay Rai as per case of prosecution is the person in whose presence the prosecutrix was allegedly sold to accused Lokender but the prosecutrix has never seen that person. There is no other evidence on record to establish the prosecutrix was sold to accused Lokender by accused Meena & Sunita. Therefore, the allegations against the accused Meena & Sunita that they sold the prosecutrix for the purpose of illicit intercourse or any immoral purpose stands not proved.
68. Was it a forcible marriage? PW12 Beena & PW14 Bala Devi were two ladies who arranged marriage between prosecutrix and Lokender. PW12 Beena testified that accused Judgment 37 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
Meena told her that there is a girl in her relations and therefore, PW12 should talk about marriage of prosecutrix with brother of Bala (PW14). She got arranged a meeting of accused Meena with Lokender at house of accused Meena.
69. Similarly, PW14 Bala deposed that Lokender was looking for a matrimonial relationship and Beena suggested for a girl who was daughter of accused Meena. In December, 2011 she along with accused Lokender went to the house of accused Meena with a marriage proposal.
70. Testimony of PW14 Bala shows that she was told that prosecutrix was daughter of accused Meena which is not the case here. In her testimony prosecutrix deposed that accused Meena & Sunita brought two or three matrimonial alliances and asked her to marry anyone of the them and out of those alliances, one was of the accused Lokender Kumar.
Judgment 38 of 45
SC No: 57787/16 State Vs. Lokender & Ors.
71. Even presuming that prosecutrix willfully
accompanied accused Meena & Sunita to their house at Haridwar but it is not the case where the prosecutrix had stayed in the house of accused for considerable time. Within 5 days of prosecutrix staying with the accused Meena & Sunita, they started looking for a matrimonial alliance for the prosecutrix. Their conduct shows that they were quite in a hurry to marry prosecutrix with one or other person.
72. Accused Meena & Sunita were fully aware that they were not the guardian of the prosecutrix nor they were consented by the prosecutrix to arrange her marriage. Even otherwise also, it is appearing in the testimony of prosecutrix that she had not only disclosed to accused Meena & Sunita that she wanted to go back to her brother's house but also many a times she requested them to allow her to make a call to her brother.
Judgment 39 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
73. If at all, the accused Meena & Sunita wanted to bonafidely marry the prosecutrix to accused Lokender then they could have intimated brother of prosecutrix about their intention to marry prosecutrix but instead they went ahead to marry prosecutrix with Lokender posing themselves as her guardian.
74. Prosecutrix specifically deposed that she was repeatedly requesting accused Meena & Sunita to permit her to speak to her brother but they refused and instead both of them gave her beatings. They brought matrimonial alliances for her. This conduct of accused Meena & Sunita shows that they were supposed to gain something out of the marriage of the prosecutrix. It is also appearing in the testimony of prosecutrix that both of them took the prosecutrix with them on the assurance that prosecutrix would be left at the house of her brother and the accused won her confidence on that pretext. Thus, both the accused Meena & Sunita are guilty of kidnapping the prosecutrix with intention that she would be compelled to marry accused Judgment 40 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
Lokender forcibly i.e. for offence punishable U/s 363/366A IPC. They are also held guilty for wrongfully confining prosecutrix in their house i.e. for offence punishable U/s 368 IPC. As stated above, there is no evidence against them of selling prosecutrix to accused Lokender for any unlawful and immoral purpose.
75. Case against accused Lokender: Accused Lokender is facing trial on allegations that he bought prosecutrix with intention that she would be used for purpose of prostitution or illicit intercourse and for committing rape upon prosecutrix. Testimony of prosecutrix in relation to accused Lokender reads as under:
"After 5 days I was forcibly married to Lokender ... in a temple near a area where I was kept. After the marriage Lokender brought me to his house at Ghaziabad where I stayed for about 15 days. I requested Lokender to permit me to make a call to my family members/brother but he refused. I also requested him to take me to my house but he told me that he will take me to my house after four months. During this time I remembered mobile number of one other boy namely Ajay who used to stay with Chotey Judgment 41 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
Lal. One day when Lokender had gone out of the house, I requested sister of Lokender to permit me to use the mobile which she allowed. From the said mobile, I made a call to Ajay------. When police came I told them that I was married to Lokender forcibly by accused persons and he kept me at his house. I was never harassed or troubled in the house of Lokender and the family of Lokender also used to take good care of me."
76. During her cross-examination prosecutrix deposed as under:
"Lokender had not given any money to Meenu @ Sunita in my presence. Vol. After my marriage Lokender had disclosed that he had paid Meenu @ Sunita for arranging his marriage with me. I was treated well by family of accused Lokender and had no problem with them. It is correct that it was because of help given to me by sisters of Lokender who gave me the mobile phone to call up my family that I could reach to my family and secure help.
I had told Lokender that I was not willing for marriage while I was being taken from Haridwar to Ghaziabad on the way.......by that time the marriage had already taken place."
77. Prosecutrix during her cross-examination admitted that she told the accused Lokender that she did not consent for the marriage only after she was married to him. From the testimony of Judgment 42 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
prosecutrix it can be safely gathered that the accused Lokender was not aware that the prosecutrix was getting married to him without her consent.
78. As far as allegations of committing sexual assault upon the prosecutrix by accused Lokender is concerned, testimony of the prosecutrix does not indicate that the accused committed forcible sexual assault on the prosecutrix.
79. Marriage between accused Lokender and prosecutrix was duly attended by the relatives of accused and the photographs of the marriage were collected by the investigating agency. The photographs Ex. D-1 to D-10 indicate that the marriage between accused Lokender and prosecutrix did not happen in any concealed manner. Prosecutrix during her testimony deposed that she was never harassed and troubled in the house of Lokender and the family of Lokender also used to take good care of her. Testimony of prosecutrix shows that the accused Lokender did not Judgment 43 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
used prosecutrix for the purposes of prostitution or illicit intercourse nor there is any evidence on record which suggests that he had procured the prosecutrix for any immoral motive. It goes without saying that there is no evidence on record to substantiate that accused had bought the prosecutrix from the accused Meena & Sunita.
80. Initial statement of prosecutrix Ex. PW7/A indicates that she had consented to marry accused Lokender. There is no evidence to suggest that at the time of marrying prosecutrix accused Lokender was aware that the prosecutrix was allured by accused Sunita and Meena and they had arranged marriage of prosecutrix without her consent rather the photographs of marriage ceremony shows that the accused Lokender with the knowledge and consent of his family had married the prosecutrix as per rites and after the marriage the prosecutrix was given the due status in the family of the accused Lokender. In these facts, accused Lokender cannot be held guilty of committing sexual assault on Judgment 44 of 45 SC No: 57787/16 State Vs. Lokender & Ors.
the prosecutrix or for procuring her for illegal or immoral purpose. Accordingly, accused Lokender deserves to be acquitted in the present case.
81. Conclusion: In the light of aforesaid discussions, accused Meena Devi & Sunita @ Meenu stands convicted for the offence punishable U/s363/366A/368 IPC.
Accused Chotte Lal and Lokender are acquitted of the charges against them. They are directed to furnish a personal bond in sum of Rs 10,000/- each under provisions of Section 437- A Cr.P.C with surety in the like amount.
Matter be listed for hearing of submissions on behalf of accused Meena Devi & Sunita @ Meenu on quantum of sentence on 27.07.2016.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
16.07.2016
Judgment 45 of 45