Delhi District Court
State vs Shankar Kumar And Another. -:: Page 1 Of ... on 19 January, 2013
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 29 of 2013.
Unique Case ID Number : 02401R0353912010.
State
versus
1. Mr. Shankar Kumar son of late Mr. Laddu Singh,
Resident of Village & P.O Susandi Nalanda Bihar.
At Present : Temple Jhuggi Rakhi Market, Jakhira, Delhi.
2. Mr.Ajit Kumar son of Late Mr.Singhesar Sinh,
Resident of Katri Dih Katri Sarai, Nalanda, Bihar.
At present: 152-A, Rakhi Market, Jakhira, Delhi.
First Information Report Number : 130/2010.
Police Station Moti Nagar,
Under sections 363, 376, 506 and 34 of the Indian Penal Code.
Date of filing of the charge sheet before : 09.08.2010.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 25.1.2010.
In the Sessions Court
Date of transfer of the file to this Court : 08.01.2013.
{ASJ (SFTC)-01, West, THC, Delhi}.
Arguments concluded on : 19.01.2013.
Date of judgment : 19.01.2013.
Appearances: Mr.Anil Kumar, Additional Public Prosecutor for the
State.
Both accused on bail with counsel, Mr.Shrikant Prasad,
Mr.Adarsh Ganesh and Mr.Rajiv.
Ms.Sadhna Singh, counsel for the Delhi Commission for
Women.
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Sessions Case Number : 29 of 2013.
Unique Case ID Number : 02401R0353912010.
FIR No. 130/2010, Police Station Moti Nagar,
Under sections 363, 376, 506 and 34 of the Indian Penal Code.
State versus Shankar Kumar and another. -:: Page 1 of 43 ::-
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. Kidnapping and rape are dark realities in Indian society like in any other nation. 53 per cent of our children are sexually abused, according to a statistic from a survey done by the Government of India. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. (Reliance on the material on the internet). Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is a minor female child, as in the present case, who is allegedly subjected to unwanted physical contact by a perverted male adult.
2. "Courts are expected to show great responsibility while trying Sessions Case Number : 29 of 2013.
Unique Case ID Number : 02401R0353912010.
FIR No. 130/2010, Police Station Moti Nagar, Under sections 363, 376, 506 and 34 of the Indian Penal Code. State versus Shankar Kumar and another. -:: Page 2 of 43 ::-
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an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.
PROSECUTION CASE
3. Mr. Shankar Kumar and Mr. Ajit Kumar, the accused persons have been charge sheeted by Police Station Moti Nagar, Delhi for the offence under sections 363/366/506/376/34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 05.05.2010 in between 12.00 noon and 12.30 pm on the way in between House No.208, Rakhi Market, Zahira and School at Sarai Basti, Delhi within the jurisdiction of Police Station Moti Nagar, accused Mr. Shankar Kumar along with co-accused Mr. Ajit Kumar kidnapped the prosecutrix (name withheld to protect her identity) a minor girl aged about 14 years from the lawful custody of her parents without their consent. On the aforesaid time, place accused Mr.Shankar Kumar along with co-accused Mr.Ajit Kumar Sessions Case Number : 29 of 2013.
Unique Case ID Number : 02401R0353912010.
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kidnapped the prosecutrix with common intention that she might be forced to illicit intercourse and in furtherance of their common intention has threatened the prosecutrix with threat to her life. In between 05.05.2010 and 09.05.2010 at an unknown place, accused Shankar Kumar committed rape upon the prosecutrix.
CHARGE SHEET AND COMMITTAL
4. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 09.08.2010 and after its committal, the case was assigned to the Court of the learned predecessor vide order dated 25.1.2010 of the learned Sessions Judge, Delhi. Further, the case has been transferred and assigned to this Court of Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 08.01.2013 vide circular number 20/372-512/F.3.(4)/ASJ/01/2013 Dated 04.01.2013 of the learned District and Sessions Judge, Delhi.
CHARGE
5. After hearing arguments, charge for offence under sections 363/366/506/376 and 34 of the IPC was framed against the accused Mr.Shankar Kumar by the learned predecessor on 26.02.2011. The co- accused Mr. Ajit Kumar was a proclaimed offender at that time. On 14.5.2011, counsel for the accused Mr. Ajit Kumar had submitted that accused Mr.Ajit Kumar had already been granted bail by the Court of Mr. Sunil Kumar Sharma, learned Metropolitan Magistrate. On 14.07.2011, accused Ajit Kumar appeared along with his counsel and the charge for Sessions Case Number : 29 of 2013.
Unique Case ID Number : 02401R0353912010.
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the offence under sections 363/366 and 34 of the IPC was framed against accused Mr. Ajit Kumar.
PROSECUTION EVIDENCE
6. In order to prove its case, the prosecution has examined as many as 16 witnesses i.e. the prosecutrix is PW1; Mr. Pawan Kumar, father of the prosecutrix is PW2; ASI Ravinder Kumar, duty officer who had recorded the formal FIR of the case, is PW3; Dr. Narender Kumar, who had medically examined the prosecutrix and referred to Gynae Department, is PW4; ASI Partap Singh, who is the first investigation officer of the case is PW5; ASI Renu, who is second Investigating Officer of the case, is PW6; Ms. Manti, the mother of the prosecutrix is PW7;
Lady Ct. Seema, who had taken the prosecutrix to DDU hospital for medical examination is PW8; Ct.Sukhdev Singh who had taken the pullandas to the FSL, is PW9; Ct. Krishan, witness of investigation is PW10; SI Vipnesh, who is the third investigation offiicer of the case, who had filed the charge sheet is PW11; Dr. Sajit Hasan, who had medically examined the accused Shankar Kumar is PW12; Ms. Rachna Tiwari Lakhanpal, learned Metropolitan Magistrate, Rohini Court, who recorded the statement of prosecutrix under section 164 of the Criminal procedure Code (hereinafter referred to as the Cr.P.C.) is PW13; HC Rajesh Kumar, who is the MHCM of the case property is PW14; Ms. Neelam Chopra, PGT Teacher who had brought the school record of the prosecutrix to show her date of birth, is PW 15; Dr. Shashi Lata Kabra, Specialist Gynae, who had deposed in place of Dr. Komila, who had medically examined the prosecutrix.
Sessions Case Number : 29 of 2013.
Unique Case ID Number : 02401R0353912010.
FIR No. 130/2010, Police Station Moti Nagar, Under sections 363, 376, 506 and 34 of the Indian Penal Code. State versus Shankar Kumar and another. -:: Page 5 of 43 ::-
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STATEMENTS OF BOTH THE ACCUSED PERSONS UNDER SECTION 313 OF THE CR.P.C.
7. In their respective statements under section 313 of the Cr.P.C., recorded on 13.12.2012, both the accused persons have controverted and rebutted the entire evidence against them submitting that they are innocent and they have been falsely implicated in this case. Both the accused persons have preferred not to lead any evidence in their defence.
ARGUMENTS
8. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
9. The Additional Public Prosecutor for the State has requested for convicting the accused Mr.Shankar Kumar for having committed the offence under sections 363, 376,506 and 34 of the IPC and for convicting the accused Mr.Ajit Kumar for having committed the offence under sections 363, 366 and 34 of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
10. The counsel for the accused, on the other hand, has requested for their acquittal submitting that there is nothing incriminating against the accused persons on the record.
Sessions Case Number : 29 of 2013.
Unique Case ID Number : 02401R0353912010.
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CASE OF THE PROSECUTION, ALLEGATIONS AND DOCUMENTS
11. The prosecution story unfolds with the filing of the complaint of father of prosecutrix/ complainant (Ex.PW2/A) on the intervening night of 05/06.05.2010 on the basis of which the rukka (Ex.PW5/A) was written on which the FIR (Ex. PW3/A) was lodged. The investigation was marked to ASI Partap Singh. The further investigation was marked to ASI Renu.
The prosecutrix was recovered and was medically examined vide MLC (Ex.PW4/A) and vide the detailed report of the Gynae doctor, who had medically examined the prosecutrix (Ex.PW16/A). The exhibits pertaining to the prosecutrix were seized by the Investigation Officer. The accused Mr.Shankar Kumar made is disclosure statement (not proved) and he was interrogated and formally arrested on 11.05.2010 vide arrest memo (Ex.PW6/A) and his personal search was conducted vide personal search memo (Ex.PW6/B). Accused Mr.Shankar Kumar was medically examined (Ex.PW12/A). The exhibits of the case were snt by SI Vipnesh vide RC number 59/21 to the FSL where they were examined vide the FSL reports Ex.PX1 and Ex.PX2. The entries were made in the register numbers 19 and 21 at the time of deposit of the exhibits and their sending to the FSL vide Ex.PW14/A to Ex.PW14/D. The age proof of the prosecutrix was collected by the Investigation Officer which is the photocopy of the school register (Ex.PW15/A) and the certificate issued by Vice Principal (Ex. PW1/A) which show that the date of birth of the prosecutrix is 18.12.1996 as well as the attested photocopy of the form filled up by the parents prosecutrix (Ex.PW15/B) and the school leaving certificate of prosecutrix (Ex.PW15/C). The statement of the prosecutrix under section 164 of the Sessions Case Number : 29 of 2013.
Unique Case ID Number : 02401R0353912010.
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Cr.P.C. was recorded (Ex. PW1/A) by learned Metropolitan Magistrate and the proceedings (Ex.PW13/A to Ex.PW13/B) were drawn. Original register no.19 containing entries of two seal parcels along with sample seal of DDU hospital (Ex.PW14/A and Ex.PW14/B). The receipt of deposit of the exhibits in the FSL was taken (Ex.PW14/D). FSL reports (Ex.PX-1 and Ex.PX-2) were obtained and filed on the judicial record.
12. The accused Mr.Ajit Kumar was declared a proclaimed offender and a supplementary charge sheet was filed against him.
Subsequently, on his application for surrender and bail, he was formally arrested on 23.04.2011 and released on bail.
13. The allegations against both the accused persons are that on 05.05.2010 in between 12.00 noon and 12.30 pm on the way in between House No.208, Rakhi Market, Zahira and School at Sarai Basti, Delhi within the jurisdiction of Police Station Moti Nagar, accused Mr. Shankar Kumar along with co-accused Mr. Ajit Kumar kidnapped the prosecutrix, a minor girl aged about 14 years, from the lawful custody of her parents without their consent when she had gone to leave her brother Rohit to school, with common intention that she might be forced to illicit intercourse. She was taken in a TSR by accused Mr.Shankar Kumar which was driven by accused Ajit Kumar. She was taken to an unknown place where she was raped by accused Mr.Shankar Kumar between 05.05.2010 to 09.05.2010.
TESTIMONIES OF THE PROSECUTION WITNESSES Sessions Case Number : 29 of 2013.
Unique Case ID Number : 02401R0353912010.
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14. PW1, the prosecutrix, has deposed on oath that on 05.05.2010 she had gone to leave her brother Rohit at his school at Sarai Basti. They left the house at 12.noon and reached at the school of Rohit at 12.30 noon.
Thereafter, she waited for Shankar outside the school of her brother where he had to meet her. Shankar came there and she went along with him. She left her house and parents of her own accord. Shankar never told her to leave her house and parents. She wants to marry with the Shankar whom she had a love affair since long. She along with Shankar hired one auto (TSR) and after half an hour they reached at one house. There, the prosecutrix and Shankar lived as husband and wife. They married in one temple and the marriage was performed by Pandjitji. Thereafter, they had physical relation with each other as husband and wife. After 2/3 days, she along with Shankar came back to their house for blessings of their parents. Parents of the prosecutrix did not agree with Shankar. She remained at the house of her parents and the accused was thrown her house. She has further deposed that she studied up to 5th class in Nagar Nigam Prathmik Vidhayala, Delhi. She has identified the accused Shankar. She did not want any action against the accused. She deposed that her parents took her to the Police Station and police took her to the DDU Hospital where she was medically examined vide MLC (Ex.PW4/A) and vide the detailed report of the Gynae doctor, who had medically examined the prosecutrix (Ex.PW16/A). Thereafter prosecutrix was sent to Nirmala Chhaya. Her statement under section 164 Cr.P.C. (Ex.PW1/A) was recorded. She was told by her parents to give statement against the accused before the Magistrate. The accused had never raped her and forcibly taken her. She further deposed that accused is her husband and she wants to live with her Sessions Case Number : 29 of 2013.
Unique Case ID Number : 02401R0353912010.
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husband. She has not identified the accused Mr.Ajit Kumar and has not deposed anything against him.
15. She has been cross examined by the Additional Public Prosecutor as she has resiled from her earlier statement wherein she has denied that she has made any allegation against accused Shankar Kumar and Ajit Kumar.
16. In her cross examination by the accused, she has deposed that she was aged 18 years at the time of incident. She had no physical relationship with the accused before her marriage.
17. PW2, Mr. Pawan Kumar, is the father of prosecutrix and complainant of the case. He had stated that on 05.05.2010, his daughter had gone to leave her brother Rohit at his school and then she did not come back. He along with his relatives searched for her daughter but she was not found anywhere. He doubted that his daughter was taken away having been induced by Shankar. He went to the PS and lodged the FIR.
His statement is Ex.PW2/A. After four days, her daughter made a telephone call to him that she would come at Ram Manohar Lohia Hospital. He along with his relatives went to RML Hospital and brought her daughter to PS Moti Nagar. Thereafter, his wife also came at the PS. Her daughter was taken to DDU Hospital for her medical examination. He did not know where her daughter had spent 4-5 days. He identified the accused Shankar. Her daughter is known by two names. They enrolled their daughter by second name in the school. His daughter had told him Sessions Case Number : 29 of 2013.
Unique Case ID Number : 02401R0353912010.
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that she had been kidnapped by both the accused and raped by accused Shankar.
18. PW3, ASI Ravinder,is the Duty officer who had recorded the FIR (Ex.PW3/A) on the basis of rukka which was produced by ASI Pratap Singh.
19. PW4, Dr.Narender Kumar, had medically examined the prosecutrix and has proved the MLC of the prosecutrix as Ex.PW4/A. Thereafter, he referred the patient to Gynae Department.
20. PW5, ASI Partap Singh, is the first Investigation officer of the case. He has deposed that on 05.05.2010 the investigation of this case was handed over to him and he was on emergency duty at PS Moti Nagar. At about 10.00 pm, Mr. Pawan Kumar came to the PS and informed him about the missing of his daughter aged about 14 years. He recorded the statement of Mr. Pawan Kumar (Ex.PW2/A) and the endorsement (Ex.PW5/A) was made and got registered the formal FIR. He flashed the wireless message and informed missing persons squad and search for the prosecutrix but she could not be found on that day. He further deposed that on 10.05.2010, the prosecutrix was produced by her father in the PS. He informed about the arrival of prosecutrix to SHO and thereafter further investigation was marked to ASI Renu.
21. PW6, W ASI Renu, is the Second Investigation Officer of the case. On 10.05.2011, Mr. Pawan Kumar had produced the prosecutrix at Sessions Case Number : 29 of 2013.
Unique Case ID Number : 02401R0353912010.
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PS. She had taken the prosecutrix to DDU Hospital for medical examination. Thereafter doctor handed over sample seal and pulanda to her and she deposited the same with MHCM. She had search the accused Shankar but he could not be traced. She had recorded the statement of prosecutrix under section 161 Cr.P.C. Thereafter she had produced the prosecutrix before the Court for recording the statement under section 164 Cr.P.C. (Ex.PW1/A). Prosecutrix was handed over to her parents after seeking permission from member of CWC. Accused Shankar Kumar was arrested at the instance of the prosecutrix and arrested vide arrest memo (Ex.PW6/A) and personal search (Ex.PW6/B). Accused was taken to DDU hospital for medical examination and thereafter doctor handed over sample seal and blood sample, which were deposited with MHCM. Accused was sent to lock up and she recorded the statement of prosecutrix. Accused want sent to judicial custody. Thereafter, she was transferred and case file was deposited with the MHCR.
22. PW7, Ms. Manti, is the mother of prosecutrix. She had deposed that about two years ago her daughter, aged about 14 years, had gone to drop her son Rohit in a school at Daya Basti but did not return home. She suspected accused Shankar as he was also missing from his house. Her daughter was recovered after five days and she told her that it was accused Shankar who had taken her. She identified the accused Shankar but she could not identify the other accused Ajit Kumar.
23. As she turned hostile, the Additional Prosecutor had cross examined her and she had deposed that her daughter told her that accused Sessions Case Number : 29 of 2013.
Unique Case ID Number : 02401R0353912010.
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Shankar had raped her.
24. In her cross examination by the accused, she has deposed that she did not know the date of her marriage and the number of years since her marriage. She did not the date of birth of the prosecutrix.
25. PW8, Lady Ct. Seema, has deposed that on the direction of IO she along with prosecutrix had gone to the DDU Hospital where the prosecutrix was medically examined and the doctor handed to her the exhibits pertaining to the prosecutrix which she handed over the IO later on.
26. PW9, Ct. Sukhdev Singh had taken the exhibits of this case from the Malkhana to FSL.
27. PW10, Ct. Krishan is the witness of investigation. He had deposed that he along with IO in search the accused Shankar. Accused Shankar was arrested on the pointing out of prosecutrix on the direction of IO. His arrest memo (Ex.PW6/A) and personal search (Ex.PW6/B) was prepared. He along with IO went to the DDU hospital for medical examination of accused Shankar. After the medical examination doctor handed over the exhibits of the accused to him and he handed over the same to IO. IO deposited the exhibits to MHCM.
28. PW11, SI Vipnesh, is the Third Investigation Officer of the case. She has deposed on 06.07.2010, she had received the concerned the Sessions Case Number : 29 of 2013.
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file from MHCR for further investigation. Co-accused Ajit Kumar was search but he could not be found. The exhibits were deposited through Ct. Sukhdev vide RC No.59/21 to FSL Rohini. She also obtained the age proof of the prosecutrix from her school (Ex.PW11/A) issued by the Vice Principal of school in which her name was enrolled as the second name of the prosecutix, daughter of Mr. Pawan Kumar. Prosecutrix was also known by another name. She obtained the NBW of co-accused Ajit Kumar. She had filed the charge sheet in the Court which was forwarded by the SHO. She had obtained the FSL result (Ex.PX1 and PX2) from MHCM and filed the same before the Court. In her cross examination, she has deposed that the parents of the prosecutrix had told her that she is known by two names.
29. PW12, Dr. Sajit Hasan had medically examined the accused Shankar and prepared the detailed report on the MLC (Ex.PW12/A). His sample and blood sample was sealed and handed over to the IO.
30. PW13, Ms. Rachna Tiwari Lakhanpal, learned Metropolitan Magistrate, Rohini Courts, Delhi has recorded the statement of prosecutrix (Ex.PW1/A). Application for recording the statement of prosecturix (Ex.PW13/A) was moved. Certificate of the proceedings (Ex.PW13/B) was given. IO has identified the prosecutrix.
31. PW14, HC Rajesh Kumar, is Malkhana Moharrar. He has proved the relevant entries in register number 19 regarding depositing the four sealed parcels and two sample seal of DDU (Ex.PW14/A and Sessions Case Number : 29 of 2013.
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Ex.PW14/B). He has also proved the relevant entry in the RC register (Ex.PW14/C) and receipt of FSL (Ex.PW14/D).
32. PW15, Ms.Neelam Chopra, PGT Teacher, has produced and proved the attested photocopy of the form filled up by the parents of prosecutrix (Ex.PW15/B) and original school leaving certificate of the previous school of prosecutrix (Ex.PW15/C) as well as the register of school leaving certificate (Ex. PW15/A).
33. PW16, Dr. Shashi Lata Kabra, Specialist (Gynae) has deposed that she has been deputed in place of Dr. Komila, who has examined the prosecutrix. She proved the detailed report (Ex.PW16/A) prepared by Dr. Komila.
34. The accused and his counsel have preferred not to cross examine PWs 3, 6, 8, 9, 10, 12, 14 and 16. Their evidence remains uncontroverted and unrebutted and can be presumed to have been admitted as correct by the accused.
DISCUSSION, ANALYSIS AND OBSERVATIONS
35. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the Sessions Case Number : 29 of 2013.
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grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
36. Under this sphere, I now proceed to test the submissions of both the sides.
37. There are two stages in the criminal prosecution. The first Sessions Case Number : 29 of 2013.
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obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
IDENTITY OF THE ACCUSED
38. There is no dispute regarding the identity of the accused Mr.Shankar Kumar who has been identified by the prosecutrix who has further absolved deposing that she had gone with him and married him. He has not committed any offence.
39. She has neither identified nor assigned any criminal role to accused Mr.Ajit Kumar.
AGE OF THE PROSECUTRIX
40. One important issue in dispute is the age of the prosecutrix. The prosecution has claimed her age to be 14 years (as per the statement/complaint to the police of her father-Ex.PW2/A) while the accused have claimed that she was above 18 years and was a major on the date of the alleged offence.
41. PW1, the prosecutrix, has stated in her statement under section 164 of the Cr.P.C. that she is 14 years old. In her evidence before the Court, she has deposed that she was aged 18 years at the time Sessions Case Number : 29 of 2013.
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of incident.
42. PW2, the father of the prosecutix, has not deposed the date of birth of the prosecutrix nor her age on the date of incident. In his cross examination, he has deposed that he had told the Principal the date of birth of the prosecutrix at the time of her admission in school which was on the basis of his identity card and he does not have any other document.
43. PW7, the mother of the prosecutrix, also has not deposed the date of birth of the prosecutrix nor her age on the date of incident. In her cross examination, she has deposed that she does not know the date of birth of the prosecutrix.
44. PW15, the Principal, has deposed that as per the school records (school leaving certificate register, copy of application form filled by the parents of the prosecutrix and school leaving certificate-Ex.PW15/A, Ex.PW15/B and Ex.PW15/C), the date of birth of the prosecutrix is 18.12.1996. These documents indicate her age as about 13 years and six months at the time of alleged offence.
45. It is clear from the evidence of the witnesses of the prosecution that they do not have the birth certificate issued by the Municipal Authorities or the MCD. The parents of the prosecutrix has not even deposed her date of birth.
46. It is also borne out of the record that the ossification test of the Sessions Case Number : 29 of 2013.
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prosecutrix was not got conducted.
47. Now, the question arises, "As to whether the age as determined by scientific ossification test should be given preference to the oral age aspect of the prosecutrix?" While dealing with similar situation it was observed by Hon'ble Delhi High Court in a case reported as Brij Mohan v.
State, 38 (1989) DLT 15, as under :-
"It is settled law that the absence of cogent evidence such as of birth entry, the determination of age scientifically i.e. by ossification test should be preferred to the other evidence, including an entry in the school register unless that to be flawless."
48. Further more, in another case reported as Kanchan Dass v. State, 40 (1990) D.L.T. 401, it was held by Hon'ble Delhi High Court while dealing with similar aspect as under :-
"Assessment of age given on the basis of ossification test is to be preferred when there is doubtful oral evidence and suspicious evidence in the shape of school leaving certificate."
49. The Additional Public prosecutor, relying upon the judgment of the Himachal Pradesh High Court reported as Sonu Kumar v.State of Himachal Pradesh, 2012 Cr.L.J. 3210, has submitted that the ossification test cannot be relied upon and the birth certificate of the prosecutrix has to be given preference.
50. After careful perusal of the above referred judgment, I am of the considered opinion that the same is not application to the present case as in that case the birth certificate of the prosecutrix was available and was Sessions Case Number : 29 of 2013.
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proved by the Secretary of the Gram Panchayat who had issued the same and the doctors conduction the medical test for age were not examined while in the present case in hand it is only the school records of the prosecutrix (school leaving certificate register, copy of application form filled by the parents of the prosecutrix and school leaving certificate- Ex.PW15/A, Ex.PW15/B and Ex.PW15/C) and the same do not in any manner show that the prosecutrix was indeed a minor on the date of alleged offence as Ex.PW15/B has been filled by the parents without any supporting documentary evidence and the author of Ex.PW15/C has not been examined by the prosecution. Therefore, the judgment relied upon by the prosecution is of no help to it.
51. So, in view of the aforesaid judgments as rendered by Delhi High Court and applying the same to the facts and circumstances of the present case, it can be safely concluded that the ossification test of the prosecutrix should have been conducted which was to be preferred over the oral age of the prosecutrix and her school records as such information would be furnished to the school by her parents.
52. It is a common knowledge that in India parents generally tell the age of the child in the school much less than the actual age of the child for the reason that he or she may get benefit of the same in future. Present case is also an exception to the same. It is clear that prosecutrix date of birth was not registered. Whatever her parents told verbally was written in the school record.
Sessions Case Number : 29 of 2013.
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53. However, in the present case, neither the ossification test of the prosecutrix has been conducted nor there is any Municipal Authority or MCD issued date of birth certificate of the prosecutrix. Therefore, school leaving certificate register, copy of application form filled by the parents of the prosecutrix and school leaving certificate (Ex.PW15/A, Ex.PW15/B and Ex.PW15/C) or the oral evidence of PWs 2, 7 and 15 cannot be taken into consideration.
54. It would not be out of place to mention here that PW15 has produced the school leaving certificate of the previous school of the prosecutrix of Class V but the witness from the concerned school has not been examined by the prosecution and as such in view of Section 27 of the Evidence Act, the same cannot be taken into consideration.
55. The prosecutrix has categorically deposed that she was aged 18 years at the time of incident. The parents of the prosecutrix have failed to depose her date of birth. It is also clear that the date of birth given to the school is not on any document or cogent evidence but only on the basis of the information furnished in the application form by the parents of the prosecutrix.
56. Therefore, applying the same ratio, it cannot be said that the age of the prosecutrix was 14 years or that she was a minor on the date of the alleged offence. The prosecution as failed to prove that she was a minor especially when she has herself stated her age to be 18 years before the Court in her evidence as PW1.
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STATEMENT AND EVIDENCE OF THE PROSECUTRIX
57. It is necessary to discuss and analyse the testimony of the most material witness i.e. PW1, the prosecutrix, as she has taken different stands in her statements.
58. In the Court, during trial, the prosecutrix, as PW1, in her evidence, has deposed that on 05.05.2010 she had gone to leave her brother Rohit at his school at Sarai Basti. They left the house at 12.noon and reached at the school of Rohit at 12.30 noon. Thereafter, she waited for Shankar outside the school of her brother where he had to meet her. Shankar came there and she went along with him. She left her house and parents of her own accord. Shankar never told her to leave her house and parents. She wants to marry with the Shankar whom she have love affairs since long. She along with Shankar hired one auto (TSR) and after half an hour they reached at one house. There, the prosecutrix and Shankar lived as husband and wife. They married in one temple and the marriage was performed by Pandjitji. Thereafter, they had physical relations with each other as husband and wife. After 2/3 days, she along with Shankar came back to their house for blessings of their parents. Prosecutrix' parents did not agree with Shankar. She remained at the house of her parents and the accused was thrown her house. She has further deposed that she studied up to 5th class in Nagar Nigam Prathmik Vidhayala, Delhi. She has identified the accused Shankar. She did not want any action against the accused. She deposed that her parents took her to the Police Station and police took her to the DDU Hospital where Sessions Case Number : 29 of 2013.
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she was medically examined vide MLC (Ex.PW4/A) and vide the detailed report of the Gynae doctor, who had medically examined the prosecutrix (Ex.PW16/A). Thereafter prosecutrix was sent to Nirmala Chhaya. Her statement under section 164 Cr.P.C. (Ex.PW1/A) was recorded. She was told by her parents to give statement against the accused before the Magistrate. The accused had never raped her and forcibly taken her. She further deposed that accused is her husband and she want to live with her husband. She has not identified the accused Mr.Ajit Kumar.
59. She has been cross examined by the Additional Public Prosecutor as she has resiled from her earlier statement wherein she has denied that she has made any allegation against accused Shankar Kumar and Ajit Kumar. However, nothing material for the prosecution has come forth in her cross examination.
60. In her cross examination by the accused, she has deposed that she was aged 18 years at the time of incident. She had no physical relationship with the accused before her marriage.
61. In her statement (under section 161 of the Cr.P.C.) to the police (Mark X-1) she has stated that on 05.05.2010 both the accused persons dragged her to a three wheeler threatening her against raising alarm. The three wheeler was driven by accused Ajit Kumar. They took her to a room at an unknown placed where accused Shankar Kumar raped her. On 09.05.2010, she managed to escape when the door was left open.
Sessions Case Number : 29 of 2013.
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62. In her statement under section 164 of the Cr.P.C., the prosecutrix has deposed that two boys whom she knows by names and faces, came to her on 05.05.2010 at about 12 noon and extended threats to her and forced her to sit in an auto which was driven by accused Ajit Kumar and kept driving around for about an hour. They took her to a room at an unknown place. At night, accused Shankar came to the room and forcibly raped her. She was kept there for three days where he repeated his act. On 09.05.2010, she managed to escape when the door was left open.
63. The prosecutrix has taken different stands and given different versions of the alleged incident in her statements under section 161 of the Cr.P.C. as well as under section 164 of the Cr.P.C. and her evidence before the Court. The same are being tabulated below:
Evidence of the Statement of the Statement of the prosecutrix as PW1 prosecutrix under prosecutrix under section 164 of the section 161 of the Cr.P.C. Cr.P.C.
She was 18 years old She was 14 years old at She was 14 years old at the time of incident. the time of incident. at the time of incident.
Shankar came there Both the accused came Both the accused
and she went along there, threatened her came there,
with him. and forced her to go threatened her and
with them. forced her to go with
them.
She left her house and She was forced to go She was forced to go
parents of her own with the accused in a with the accused in a
accord. TSR driven by accused TSR driven by
Ajit Kumar. accused Ajit Kumar.
Sessions Case Number : 29 of 2013.
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Shankar never told her No such deposition. No such deposition.
to leave her house and parents. She wants to marry with the Shankar whom she have love affairs since long. She along with The accused made her The accused made her Shankar hired one sit in an TSR driven by sit in an TSR driven auto (TSR) and after Accused Ajit Kumar. by Accused Ajit half an hour they Kumar. reached at one house. There, the prosecutrix No such deposition. No such deposition. and Shankar lived as husband and wife. They married in one temple and the marriage was performed by Pandjitji. Thereafter, they had physical relations with each other as husband and wife. After 2/3 days, she No such deposition. No such deposition. along with Shankar came back to their house for blessings of their parents. Prosecutrix' parents did not agree with Shankar. She remained at the house of her parents and the accused was thrown her house. Sessions Case Number : 29 of 2013. Unique Case ID Number : 02401R0353912010. FIR No. 130/2010, Police Station Moti Nagar,
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She did not want any No such deposition. No such deposition. action against the accused.
She deposed that her No such deposition. No such deposition. parents took her to the Police Station.
She was told by her No such deposition. No such deposition.
parents to give Her statement under statement against the section 164 of the accused before the Cr.P.C. voluntarily Magistrate. made. The accused had never No such deposition. No such deposition. raped her and forcibly taken her. She further deposed that accused is her husband and she want to live with her husband. She has identified the Both accused named. Both accused named. accused Shankar. She has not identified the accused Mr.Ajit Kumar.
64. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence of victim suffer from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version.
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65. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happen to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
66. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases
487.
67. It is not in dispute that the accused Shankar Kumar and the prosecutrix had gone in a three wheeler and she had not raised any alarm. This fact indicates that they were together with the consent of the prosecutrix freely in the public. The prosecutrix apparently has not made any complaint to anyone nor raised alarm at any point for help.
68. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.
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SECTIONS 363 AND 376 OF THE IPC
69. In the present case, the charge sheet was filed under sections 363/376/506/34 of the IPC and the charge for offence under sections 363/366/506/376 and 34 of the IPC was framed against the accused Mr.Shankar Kumar and the charge for the offence under sections 363/366 and 34 of the IPC was framed against accused Mr. Ajit Kumar.
70. For proving the offence under section 363 and 366 of the IPC, the first and foremost requirement of the prosecution is to prove that the prosecutrix was a minor on the date of the commission of the offence and she had been kidnapped.
71. As discussed above, it can be said that the age of the prosecutrix could be 18 years which makes her a major and it cannot be said with certainty that she was aged about 14 years or was a minor on the date of the alleged offence. The prosecutrix appears to be a major on the date of commission of offence as the prosecution as failed to prove that she was a minor.
72. The hon'ble Delhi High Court in Vivek Kumar @ Sanju and another v. The State and another Crl. M.C. No. 3073-74/2006 decided on 23.2.2007 took similar view. Following observations in that judgment are of some interest:
"There is no law which prohibits a girl under 18 years from falling in love with someone else. Neither falling in love with some body is an offence under IPR or any other penal law. Desiring to marry her love is also not an offence. A young girl who is in love has two Sessions Case Number : 29 of 2013. Unique Case ID Number : 02401R0353912010. FIR No. 130/2010, Police Station Moti Nagar, Under sections 363, 376, 506 and 34 of the Indian Penal Code. State versus Shankar Kumar and another. -:: Page 28 of 43 ::-
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courses available to her one is that she should marry with the consent of her parents after obtaining the consent of her parents. If her parents do not agree to persuade them or to wait for attaining the age of majority and then exercise her right as a major to marry the person of her own choice. However, this is possible only when the house of her parents where she is living has congenial atmosphere and she is allowed to live in peace in that house and wait for attaining age of majority. This might have been the reason in the mind of petitioner No.2 when she told her father that she was in love and wanted to marry Sanju, but the response of father when daughter confided in him, created the fear in the mind of petitioner no.2 Her father slapped her and told that her action would malign the religion and bring danger to the religion. He, even threatened to kill her and marry her off to some rich person. When once such a threat is given to a girl around 17 years of age, who is in love, under such circumstances she has a right to protect her person and feelings against such onslaught of her relatives even if the onslaught is from her own parents. Right to life and liberty as guaranteed by the Constitution is equally available to minors. A father has no right to forcibly marry off his daughter, who is below 18 years against her wishes. Neither he has right to kill her, because she intends to marry out of her religion. If a girl around 17 years of age runs away from her parents house to save herself from the onslaught of her father or relatives and joins her lover or runs away with him, it is no offence either on the part of the girl or on the part of boy with whom she ran away and married.."
73. Similarly in Bhagwan Singh Ors. v. State & Anr. 2006 (3) JCC 2050, the High Court of Delhi had quashed the proceedings. In this case, the following portion from the judgment of S. Vardarajan v. State of Madras, 1965 SCR (1) 243 was quoted. I am privileged to quote the same as below:-
"But when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) from the house of the relative of father where she is Sessions Case Number : 29 of 2013. Unique Case ID Number : 02401R0353912010. FIR No. 130/2010, Police Station Moti Nagar, Under sections 363, 376, 506 and 34 of the Indian Penal Code. State versus Shankar Kumar and another. -:: Page 29 of 43 ::-
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kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub-Registrar's office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have 'taken' her out of the keeping of her lawful guardianship, that is, the father. The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanies him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him.."
74. In the present case also, there is no material on record that the prosecutrix was taken or enticed or allured or forced by the accused. There is also no material on record to show that accused deceitfully took away the prosecutrix.
75. In fact, the prosecutrix, in her evidence as PW1, has categorically deposed that she had left on her own to go with the accused Mr.Shankar Kumar.
76. Proof of such intention is vital for the purposes of sections 363 and 376 IPC as pointed out by the Supreme Court in Faiyaz Ahmad v. State of Bihar, 1990 Cr.L.J. 2241 (SC). If a girl leaves the house of her parents of her own and is an adult, and accompanies a person to various Sessions Case Number : 29 of 2013.
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places, no offence is committed under this section or any other section. Reliance can be placed upon the judgment reported as Om Parkash v. State of Haryana, 1988 Cr.L.J. 1606 (P&H).
77. In another case reported as Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, in para 25 it was observed by Hon'ble Supreme Court of India as under:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted......"
78. This brings me to the final question as to whether it was she who had gone of her own or had been enticed away by the accused. In this regard it is no doubt true that in her statement before this Court she has stated that she had herself gone with the accused voluntarily and without any threat, pressure, influence or coercion and lived with him and also had physical relations with him.
79. Section 375 of the IPC enumerates six circumstances wherein the sexual intercourse committed amounts to rape which read as under:
First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully Sessions Case Number : 29 of 2013.
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married.
Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly - With or without her consent, when she is under sixteen years of age.
80. It is also clear from the evidence of PW1 that she had herself gone with the accused Mr.Shankar Kumar with her free consent and without any threat, pressure, coercion or influence when she has deposed that on 05.05.2010, she met him and she went with him. In these circumstances, in the absence of an active role having been played by the accused, the allegations leveled against the accused stand ruled out altogether. There is no material to conclude that the accused Mr.Shankar Kumar had used force or had enticed her or raped her. The evidence of the prosecution especially the prosecutrix is in favour of the accused. She also appears to have reached the age of discretion. Further, it also cannot be ignored that she was of the age of discretion and sufficient maturity.
81. It is also clear from the evidence of PW1 that she had herself gone with the accused with her free consent and without any threat, pressure, coercion or influence when she has deposed that on 05.05.2010, the accused met him at the gate of the school of her brother and she went with him. She left her house and parents of her own accord. Shankar never told her to leave her house and parents. She wants to marry with the Shankar whom she have love affairs since long. She along with Shankar hired one auto (TSR) and after half an hour they reached at one house. Sessions Case Number : 29 of 2013.
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There, the prosecutrix and Shankar lived as husband and wife. They married in one temple and the marriage was performed by Pandjitji. Thereafter, they had physical relations with each other as husband and wife. She did not want any action against the accused. She was told by her parents to give statement against the accused before the Magistrate. The accused had never raped her and forcibly taken her. She further deposed that accused is her husband and she want to live with her husband. She has not identified the accused Mr.Ajit Kumar. She was aged 18 years at the time of incident. She had no physical relationship with the accused before her marriage.
82. In these circumstances, in the absence of an active role having been played by the accused, the allegations leveled against the accused stand ruled out altogether. There is no material to conclude that both the accused had used force or had enticed her or accused Shankar Kumar had raped her. The evidence of the prosecution especially the prosecutrix is in favour of the accused. She also appears to have reached the age of discretion. It also cannot be ignored that she was of the age of discretion and sufficient maturity.
83. Here, I would like to incorporate the observations made by the Hon'ble Supreme Court in S.Vedarajan v. State of Madras AIR 1965 SC
942. In para 9 of the judgment it was observed as under:-
"It must, however, be borne in mind that there is a distinction between taking and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances Sessions Case Number : 29 of 2013. Unique Case ID Number : 02401R0353912010. FIR No. 130/2010, Police Station Moti Nagar, Under sections 363, 376, 506 and 34 of the Indian Penal Code. State versus Shankar Kumar and another. -:: Page 33 of 43 ::-
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can the two be regarded as meaning the same thing for the purposes of S.361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused persons. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.."
84. It can be assessed from the evidence of the prosecutrix that she had gone with her free will and consent with the accused as she did not raise any alarm while they went in three wheeler. She also did not raise any alarm nor asked for help when they went and stayed in a room.
85. It is clear from the record that the prosecutrix not only was a major on the date of alleged offence (as there is no proof of her being a minor) but she had also reached the age of discretion and had herself gone voluntarily with the accused and lived with him. She was neither taken away nor enticed from her father's custody by the accused nor raped repeatedly. She has not deposed an iota about any alleged rape or forced physical relations. Under these circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father or raping her. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. There is nothing incriminating on the record against the accused.
Sessions Case Number : 29 of 2013.
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86. It is clear from the record that the prosecutrix not only was a major on the date of alleged offence (as there is no proof of her being a minor) but she had also reached the age of discretion and had herself gone voluntarily with the accused Shankar Kumar and married him. She was neither taken away nor enticed from her father's custody by the accused. She has not deposed an iota about any alleged rape or forced physical relations. Under these circumstances, no inference can be drawn that the accused Shankar Kumar is guilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. There is nothing incriminating on the record against the accused.
87. As regards accused Ajit Kumar, the prosecutrix has neither indentified him nor deposed anything incriminating against him nor assigned any criminal role to him.
CONSENT OF THE PROSECUTRIX
88. It has been argued on behalf of the accused that the prosecutrix was a consenting party. It may be observed here that consent is an act of reason coupled with deliberation, after the mind has weighed the good and evil on each side in a balanced manner. Consent denotes an active will in the mind of a person to permit the doing of an act complained off. Consent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on Sessions Case Number : 29 of 2013.
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the knowledge of the significance and the moral quality of the act, but after having freely exercised a choice between resistance and assent. Where the prosecutrix had sufficient opportunity not only to run away from the accused but she could have taken the help of the neighbours and medical evidence also indicated that there were no injuries on the person of the prosecutrix, it can be said that she was a consenting party.
89. It has been held in the judgment reported as Sadashiv Ramrao Hadbe v. State of Maharashtra and another, (2006) 10 SCC 92 that absence of injuries on the body of the prosecutrix improbabilise the prosecution version that she has been raped. Similar opinion was also observed in Radhu v. State of Madhya Pradesh, JT 2007 (11) SC 91 and Vinay Krishna Ghattak v. State of Rajasthan, 2004 (1) RCR (Cri.) 565 wherein it was held that absence of injuries on the body of the prosecutrix generally gives rise to an inference that she was a consenting party. In the present case, therefore, it can be said as there is no injury on the body of the prosecutrix (as is clear from her MLC-Ex.PW4/A and Ex.PW16/A), the probability is that rape is not committed.
90. Since the prosecutrix as PW1 have not deposed anything incriminating against the accused persons and also there are overwhelming contradictions in her different statements, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused persons. The prosecution story does not inspire confidence and is not worthy of credence.
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91. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy regarding the veracity of the prosecution case and the prosecution has failed to establish kidnapping or rape. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place. It appears from the evidence that it is not a case of kidnapping but of elopement and marriage.
MLC OF THE PROSECUTRIX AND FSL REPORTS
92. The MLC of the prosecutrix (Ex.PW4/A and Ex.PW16/A) shows that she does not have any fresh external injury.
93. Also the FSL reports (Ex.PX-1 and Ex.PX-2) also show that semen could not be detected on the vaginal slides of the prosecutrix and the public hair.
94. These facts indicate that the prosecution version regarding the prosecutrix being raped are false as had she been actually raped, she would have received some injuries, maybe minor and the FSL reports would have shown the presence of semen.
MENS REA / MOTIVE
95. Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit Sessions Case Number : 29 of 2013.
Unique Case ID Number : 02401R0353912010.
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the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
96. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
97. In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, Sessions Case Number : 29 of 2013.
Unique Case ID Number : 02401R0353912010.
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when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
98. In the present case, a story has been projected that the accused has kidnapped and raped the prosecutrix and this version appears to be untrue as there is no reason why he would do so. The prosecutrix has herself gone with the accused. There does not appear to be any criminal intention and mens rea on the part of the accused.
CONCLUSION
99. It is not possible that the accused would keep her at w.e.f. 05.05.2010 to 09.05.2011 and repeatedly commit rape upon her without any person noticing the same or without her bringing the incident to the notice of any person, especially when they have been using public conveyance for travelling. The testimony of the prosecutrix is in favour of both the accused persons.
100. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests Sessions Case Number : 29 of 2013.
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which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
101. Applying the above principles of law to the facts of present case, it is evident that the identity of the accused Mr.Shankar Kumar stands established. He was known to the prosecutrix even prior to the incident. It also stands established that the prosecutrix was not a minor at the time of the alleged incident i.e.05.05.2010. It also stands established that the accused had neither kidnapped her nor raped her. The testimony of the prosecutrix appears to be voluntary and truthful in so far as the absolving of the accused Mr.Shankar Kumar. She has neither identified accused Mr.Ajit Kumar nor assigned any criminal role to him.
102. The case of the prosecution fails to establish that the prosecutrix had been forcibly taken by both the accused rather it appears that she had gone by her own consent and had been residing with accused Mr.Shankar Kumar as his wife after marriage with him for four days. She Sessions Case Number : 29 of 2013.
Unique Case ID Number : 02401R0353912010.
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had physical relations with the accused Mr.Shankar Kumar with her consent after marriage.
103. There is no incriminating evidence against both the accused persons.
104. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish kidnapping or rape. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place. It appears from the evidence that it is not a case of kidnapping but of elopement and marriage.
105. The prosecutrix was living in a city like Delhi. From the conduct of PW1, the prosecutix, it is clear that PW1 herself willingly went with the accused Mr.Shankar Kumar and also stayed with him for about four days w.e.f 05.05.2010 to 09.05.2010 without making any complaint to anybody. Her entire conduct shows that she was a consenting party to the whole incident.
106. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was kidnapped, raped and threatened.
107. Therefore, in view of above discussion, the conscience of this Sessions Case Number : 29 of 2013.
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Court is completely satisfied that the prosecution has failed to bring home the charge against both the accused persons.
108. Accordingly, Mr.Shankar Kumar and Mr.Ajit Kumar, both the accused persons, are hereby acquitted of the charges.
109. It would not be out of place to mention here that today there is a hue and cry being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the evidence of the prosecutrix is unreliable and untrustworthy, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C.
110. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
111. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
112. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
Sessions Case Number : 29 of 2013.
Unique Case ID Number : 02401R0353912010.
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113. After the expiry of the period of limitation for appeal, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 19th day of January, 2013. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.
************************************************************ Sessions Case Number : 29 of 2013.
Unique Case ID Number : 02401R0353912010.
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