Delhi District Court
State vs . Ram Milan Yadav on 14 January, 2016
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No.94/15.
Unique Case ID No. 02405R0524512002.
State Vs. Ram Milan Yadav
S/o Sh. Norang Yadav,
R/o D-57, Sector-1, Pappankalan,
Dwarka,
New Delhi.
Permanent Address :
Village Khandhusra,
P.S. Dabosia, Distt. Basti,
U.P.
Date of Institution : 16.4.2002.
FIR No. 895 dated 28.10.2001.
U/s. 363 IPC.
P.S. Dabri.
Date of reserving judgment/Order : 11.1.2016.
Date of pronouncement : 14.1.2016.
JUDGMENT
1. The above named accused Ram Milan Yadav had been chargesheeted by the prosecution for the offences u/s.376/506 IPC. He is alleged to have kidnapped the prosecutrix namely 'R' (real name withheld in order to conceal her identity), a 14 years old minor girl on 26.10.2001, confining her in his house till 17.1.2002 and raping her during that period.
SC No.94/15. Page 1 of 162. It is the case of the prosecution that the prosecutrix had gone missing on 26.10.2001 at about 7 p.m. when she had gone to the nearby DDA Park in Sector-1, Pappankalan, New Delhi, to watch the effigy of Rawan. The information about her disappearance was intimated to Police Control Room at telephone no.100 which was transmitted to P.S. Dabri where it was recorded as DD No.36A. The DD was entrusted to SI Manjeet Tomar for suitable action. SI Manjeet Tomar alongwith Const. Satya Narain reached the address mentioned in the DD i.e. D-15, Sector-1, Pappankalan, New Delhi, and met the maternal uncle of the prosecutrix and recorded his statement. The statement of father of the prosecutrix was recorded on 28.10.2001, on the basis of which FIR was registered. The investigation was commenced by SI Manjeet Tomar. He sent WT message and also recorded the statements of material witnesses. It was suspected that the prosecutrix has been allured away by accused Ram Milan, however, none of them could be traced. Later on, further investigation was entrusted to SI Tara Chand. He also made efforts to trace the prosecutrix but in vain. NBWs were issued against accused Ram Milan.
3. The prosecutrix and the accused were apprehended from Old Delhi Railway Station on 17.1.2002 at the pointing out of prosecutrix's father. Statement of the prosecutrix u/s.161 Cr.PC was recorded wherein she stated that the accused had taken her to DDA Park on 26.10.2001 on the pretext of showing her the effigy of Rawan and then asked her to accompany him or otherwise, he would kill her brother. She got scared and accompanied the accused, who took her to Nangloi. He beat her SC No.94/15. Page 2 of 16 and also committed forcible sexual intercourse with her. He also solemnized marriage with her against her consent in a temple and continued to rape her for about one month at Nangloi. Thereafter, he took her to a unknown place in U.P. in a bus and kept her there for two months during which period, he continued to commit rape upon her. Thereafter, he brought her to Old Delhi Railway Station where they were seen by her father.
4. Pursuant to the aforesaid statement of the prosecutrix, sections 366 and 376 IPC were added to the FIR. Accused was arrested. He is stated to have made a confessional statement to the police admitting his guilt. He was got medically examined in DDU Hospital and the exhibits given by the doctor were seized. The prosecutrix too was taken to DDU Hospital where her medical examination was conducted and the exhibits given by the doctor were seized by the IO. The IO also seized the copy of the school leaving certificate of the prosecutrix from her father which showed her date of birth as 25.7.1986. The ossification test of the prosecutrix was also got conducted on 15.2.2002 wherein her age was estimated between 15 to 17 years.
5. After completion of the investigation, Charge Sheet was prepared by the IO and submitted to the concerned Ilaqa Magistrate.
6. Upon committal of the case to the court of Sessions, Charges u/s.363 IPC, u/s.366 IPC and u/s.376 IPC were framed against the accused on 21.8.2002. The accused denied the charges and hence trial was held.
SC No.94/15. Page 3 of 167. At trial, the prosecution examined 14 witnesses to prove the charges against the accused. The statement of the accused u/s.313 Cr.PC was recorded on 19.2.2005 wherein he stated that the prosecutrix had accompanied him voluntarily as well as willingly and was living with him on her own free will. He further stated that the prosecutrix got married to him with her own free consent and the case has been instituted against him by the father of the prosecutrix falsely in order to harass him. The accused examined his three co-villagers Sh. Ram Chet, Sh. Ram Kewal and Sh. Om Prakash as DW1, DW2 & DW3 respectively in his defence.
8. The D.E. was closed on 11.3.2005 and case was posted for final arguments to 01.4.2005. However, the accused did not appear before the court thereafter. NBWs issued against him but could not be executed. Process u/s.82/83 Cr.PC also was issued against him which was returned unexecuted. Accordingly, the accused was declared proclaimed offender vide order dated 21.2.2006. The accused came to be arrested again in the year 2015 and was sent to this court for further proceedings in the case. Accordingly, the case was taken up for final arguments.
9. I have heard Ld. APP for State, Ld. Counsel for the accused and have perused the entire material on record.
10. The prosecutrix has been examined as PW1. She has deposed that on the day of Dusshera in the year 2001, accused Ram Milan took her to see fair (Mela). From there, he took her to SC No.94/15. Page 4 of 16 the house of his friend and then to village Basti in U.P. forcibly and upon threatening to kill her brother. She has stated that the accused did not do anything to her in Delhi. Accused married her in a temple at Basti. She deposed that accused kept her in village Basti for about two months and committed sexual act with her against her consent. She deposed that her father reached village Basti and brought her to Delhi. Police was also accompanying her father at that time.
11. She was cross examined by Ld. APP after obtaining permission from the court. She admitted that the accused took her to show her effigy of Rawan in DDA Park where he threatened her that if she did not accompany him, he will kill her brother. She accompanied him due to fear. She admitted that accused took her to a room in Nangloi and when she insisted upon him to return to her house, he gave beatings to her and did wrong act (Galat Kaam) with her. She explained that by wrong act, she means the sexual act. She admitted having mentioned in her statement to the police that the accused took her to a temple in Nangloi and married her against her wishes by putting garland around her neck and applying vermilion on her head. She denied that the police, with the help of her father, apprehended her and the accused at Old Delhi Railway Station on 17.1.2002.
12. In the cross examination conducted on behalf of accused, she deposed that the accused is her neighbour. She further deposed that accused had not put her to any kind of fear before taking her to Dusshera Mela and added that accused persuaded her to proceed to Mela. She stated that the accused did SC No.94/15. Page 5 of 16 sexual act with her in village Basti and not at Nangloi, Delhi. She stated that her father alongwith three policemen had reached village Basti and had apprehended them.
13. She further deposed that she had been meeting the accused after they were recovered by the police. She stated that when the accused was in jail, she had gone to his house in order to get him released from jail. She had filed an application before the court stating that her parents were pressurizing her to proceed against the accused. She had also filed an application before the High Court for getting her statement recorded but the said application was marked back to Ld. M.M. She deposed that after court hearing, she used to go back to th house of accused in village Basti out of her own free will and not under any pressure. According to her, she lived in the house of accused in village Basti for about four months on her own free will. She stated that she used to go to the house of the accused with the intent to live there as she had seen his good behaviour and that of his parents. She alleged that she does not want to go to the house of accused now and wants to live with her parents. She stated that the accused committed sexual intercourse with her in his house in village Basti.
14. In reply to certain court questions, she admitted that she has studied upto 4th class in Nagam Nigam Balika Vidhalaya, Sector-1, Dwarka. She stated that her school leaving certificate was taken into custody by police.
15. The father of the prosecutrix has been examined as PW2. He deposed that his daughter 'R' went missing on SC No.94/15. Page 6 of 16 26.10.2001 when she had gone alongwith her sister and brother in law to watch the burning of effigy of Rawan in DDA Park, Sector-1, Pappankalan. His brother in law Virender Choudhary made a call at telephone no.100 in this regard. They continued to search for her the whole night but she could not be found and a missing report was lodged in the police station on 27.10.2001. He further deposed that after lodging a missing report, he came to know that his daughter has been taken away by the accused and accordingly, he went to P.S. Dabri on 28.10.2001 where his statement Ex.PW2/A was recorded. He alongwith the police officials had gone to the native village of the accused i.e. village Basti where they searched for his daughter with the help of local police but could not find her. While coming back from village Basti, he saw his daughter alongwith accused at platform no.13 in Old Delhi Railway Station. He called police and the police recovered his daughter vide memo Ex.PW1/B. Police also arrested the accused in his presence. He further deposed that she had given a copy of school leaving certificate of his daughter to the police, which was seized vide memo Ex.PW2/C. He proved the said school leaving certificate as Ex.PW2/D.
16. In the cross examination, he deposed that he was informed by his elder daughter Meera at about 7.45 p.m. that the prosecutrix 'R' has gone missing. He stated that a lady whose whereabouts are not known, told them that the accused had taken away his daughter. He did not remember exactly when 'R' was admitted in the school and surmised that it may have been in the year 1995. He stated that earlier she was studying in a school in the village but he did not remember the name of the school. He SC No.94/15. Page 7 of 16 had not submitted the school leaving certificate of the previous school at the time of admission of 'R' in the school at Delhi. He had also not submitted any proof of her previous qualification at the time of her admission in Delhi School.
17. PW3 HC Suraj was the Duty Officer in P.S. Dabri on 28.10.2001 from 4 p.m. to 12 midnight and had registered the FIR in this case, on the basis of rukka given to him by SI Manjeet Tomar. He proved the copy of FIR as Ex.PW3/A and his endorsement on the rukka as Ex.PW3/B.
18. PW4 Dr. Shekhar of DDU Hospital, New Delhi, had filled up the X-ray form for bone age X-ray of the prosecutrix, which he proved as Ex.PW4/A.
19. PW5 HC Balwan proved DD No.17B dated 27.10.2001 as Ex.PW5/A. According to him, the said DD is in the handwriting of DD Writer Const. Ghanshyam.
20. PW6 HC Satpal was the Duty Officer in the police station on 26.10.2001 from 5 p.m. to 1 a.m. in the night and proved the copy of DD No.36A as Ex.PW6/A which he had recorded as 9.50 p.m. on the basis of a wireless message handed over to him by wireless operator.
21. PW7 is Sh. Virender Chaudhary, the maternal uncle of the prosecutrix. He deposed that the prosecutrix had gone missing on 26.10.2001 when she had gone to watch the effigy of Rawan in DDA Park, Sector-1, Pappankalan, New Delhi. He informed the SC No.94/15. Page 8 of 16 police at telephone no.100 at 9.45 p.m. about the same. He searched for his niece in the house of their relatives. He went to the police station on 27.10.2001 at about 7.55 a.m. and lodged missing report which was recorded as DD No.17B. He had signed the DD register. According to him, the copy of DD is already Ex.PW5/A. He further deposed that accused Ram Milan was also missing from the said date and this fact had come to his knowledge after lodging of DD report.
22. In the cross examination, he deposed that his niece had gone from the house at about 6.45 p.m. alongwith her sister and brother in law. According to him, the sister and brother in law of his niece got separated from her just after about five minutes. His sister i.e. the mother of the prosecutrix informed him at about 7.30 p.m. that the prosecutrix has not returned home. She came to his house in search of the prosecutrix and then he made call at telephone no.100.
23. PW8 Dr. Ajay Sharma has proved MLC of the accused as Ex.PW8/A vide which his medical examination was conducted by Dr. Avdhesh Kumar.
24. PW9 is SI Manjeet Tomar. He had recorded the statement Ex.PW2/A of the complainant i.e. father of the prosecutrix on 28.10.2001, prepared rukka Ex.PW9/A and got the FIR registered.
25. PW10 is the Head Mistress, Nagam School, Dwarka Sector-1 and proved school leaving certificate of the prosecutrix as SC No.94/15. Page 9 of 16 Ex.PW10/A. She further deposed that as per the school record, the date of birth of the prosecutrix is 25.7.1986. In the cross examination, she deposed that the certificate Ex.PW10/A was issued by previous Principal Mrs. Usha Sachdeva, who has since retired. She also stated that the prosecutrix had joined their school on 15.12.1994 as a student of 3rd primary class. They did not receive any school leaving certificate of the previous school of the prosecutrix. She stated that the name of the prosecutrix was struck of the rolls of the school on 16.9.1995 on account of her continued absence.
26. PW11 Lady Const. Nootan had taken the prosecutrix to DDU Hospital on 18.1.2002 for medical examination.
27. PW12 Dr. Nitin Kumar had conducted medical examination of the prosecutrix in DDU Hospital on 18.1.2002. He proved her MLC as Ex.PW12/A.
28. PW13 Dr. Seema Jain had conducted gynecological examination of the prosecutrix in DDU Hospital on 18.1.2002. She proved her observations on the MLC as Ex.PW12/A. She deposed in the cross examination that the prosecutrix had told her that she ran away from home on her own will and has been staying with a boy for the last three months and therefore she noted the same on the MLC. She stated that whatever she has recorded in the MLC was told to her by the prosecutrix. According to her, the prosecutrix did not tell her that the boy had committed any wrong act with her. She further deposed that as there was no sign of force or pressure on the person of the prosecutrix, therefore, it did SC No.94/15. Page 10 of 16 not appear to her that the prosecutrix had been subjected to forcible sexual intercourse.
29. PW14 is the IO SI Tara Chand.
30. According to the prosecution case, the accused had kidnapped the prosecutrix, aged 14 years, on 26.10.2001, confined her in his house till 17.1.2002 and had been committing forcible sexual intercourse with her during that period.
31. The prosecutrix has deposed in her testimony before this court that accused Ram Milan took her to see the fair (Mela) on the day of Dusshera in the year 2001 from where he took her to the house of his friend and then to village Basti, U.P. She has added that the accused took her by force and on issuing threat that he would kill her brother. However, in the cross examination, she deposed that the accused did not put her to any kind of fear for taking her to Dusshera Mela and he only persuaded her to accompany her to the Mela. It is thus difficult to hold that the accused had taken her alongwith him forcibly or had issued any threat to her. Further PW2 and PW7 have very clearly deposed that the prosecutrix had left her house on that day i.e. 26.10.2001 alongwith her sister and brother in law for the DDA Park Sector-1 Pappankalan, New Delhi, to watch the burning of effigy of Rawan. Therefore, the sister and brother in law of the prosecutrix were very material witnesses to say what had happened to the prosecutrix and how she was taken away by the accused. It appears that no inquiries have been made from these two persons. Their statements are not on record. They have not been examined SC No.94/15. Page 11 of 16 as witnesses before this court. Hence, the prosecution has withheld the two very vital witnesses and an adverse inference has to be taken in this regard against the prosecutrix that these two witnesses, if examined in the court, would have deposed against its case. Further, the prosecutrix has herself told the doctor (PW13), who conducted her medical examination, that she had run away from her home on her own will and has been staying with a boy.
32. Hence the prosecution has failed to lead any credible, clinching and trustworthy evidence to establish that the accused has taken away the prosecutrix alongwith him on 26.10.2001 forcibly or by enticement or allurement. It appears that the prosecutrix had voluntarily gone alongwith accused and this fact was probably known to her sister and brother in law, who were accompanying her at that time. I do not find any cogent and sufficient evidence on record to hold the accused guilty of the offences u/s.363 IPC and u/s.366 IPC.
33. It is evident from the evidence on record that the accused had kept the prosecutrix in his house in village Basti, U.P., for about three months and during that period, he was having physical relations with her. The prosecutrix has deposed that the accused had established sexual relations with her against her consent. However, she has deposed in the cross examination that while the accused was in jail after his arrest in this case, she had gone to his house to get him released from jail. She had also filed an application before the court stating that her parents were pressurizing her to proceed against the accused and that her SC No.94/15. Page 12 of 16 statement may be recorded. She has further deposed that after the court hearing, she had gone to the house of accused in village Basti out of her own free will and not under any pressure. She deposed that she stayed in the house of the accused in village Basti for about four months on her own free will.
34. The conduct of the prosecutrix, as noted herein-above, fairly indicates that she had been staying with the accused in his house in village Basti, U.P., on her own free will and without any force or pressure. The fact that she was visiting his house even after his arrest in this case and she wanted to ensure that the accused is released on bail, amply demonstrates that she was in deep love with the accused and the accused had not caused any harm to her, either mentally or physically. Such conduct of the prosecutrix nowhere indicates that she had been subjected to forcible sexual intercourse by the accused while she was staying with him in his house. She has very clearly stated in the cross examination that she used to go to the house of the accused as she had found the behaviour of accused and his parents towards her very good and she intended to live there. It is therefore evident that the prosecutrix had no complaint at all against the accused or his parents as they had not inflicted any bodily or mentally injury upon her. The conduct of the prosecutrix shows that the physical relations between her and the accused were consensual on account of their's love for each other.
35. It was vehemently argued by Ld. APP that even if it is taken that the prosecutrix was a consenting party to the physical relations with the accused, her consent was immaterial as she was SC No.94/15. Page 13 of 16 less than 16 years of age when the accused cohabited with her. In this regard, I may note that the prosecution has failed to prove beyond doubt that the prosecutrix was less than 16 years of age during the period she was staying with the accused at his house and was having consensual sexual relations with him.
36. The prosecution, in this regard, has relied upon the school leaving certificate of the prosecutrix Ex.PW2/D which had been handed over by her father to the IO. This certificate does show the date of birth of the prosecutrix as 25.7.1986 implying that she was a 15 years and 3 months old when she had gone alongwith the accused and was having physical relations with him. The certificate shows that the prosecutrix was studying in 4th primary class when it had been issued. It also shows that the prosecutrix had taken admission in the school on 06.12.1994 i.e. just about ten months before the date of issuance of the certificate. The Principal of the school appearing as PW10 has deposed that the prosecutrix took admission in their school in 3rd primary class and they had not received any school leaving certificate of the previous school where the prosecutrix had studied upto 3rd class.
37. PW2, the father of the prosecutrix, has deposed that the prosecutrix was earlier studying in a school in the village but he did not remember the name of the school. He has deposed that he did not submit any proof of the previous educational qualification of the prosecutrix at the time of her admission in the school at Delhi. Therefore, it is evident that Nagar Nigam Prathamik Vidhalaya, Sector-1 Dwarkapuri, New Delhi, which had SC No.94/15. Page 14 of 16 issued the certificate Ex.PW2/D was not the school first attended by the prosecutrix. There is nothing on record to show as to on which basis was the date of birth of the prosecutrix recorded as 25.7.1986 in the records of that school. The records of the school previously attended by the prosecutrix have not been produced or proved. Therefore, the date of birth of the prosecutrix mentioned in this certificate cannot be taken as true and correct.
38. It may also be noted here that the prosecutrix had been subjected to bone age which was conducted in DDU Hospital on 18.1.2002. In the report Ex.PW4/A, her bone age has been opined to be between 15 to 17 years. Therefore, the bone age estimation of the prosecutrix clearly reveals that she was more than 16 years of age when she had eloped alongwith accused on 26.10.2001 and during the period she was having consensual physical relations with the accused. The court is bound to take into consideration the age of prosecutrix as that which is opined in this ossification test report for the reason that it is a trite law that if different and conflicting evidence comes on record with regards to an issue, accused has right to choose that which favours him. In view of this legal principal also, the age of prosecutrix, as reflected by certificate Ex.PW2/D, should be ignored and she should be held to be above 16 years of age on the relevant date, as shown by the ossification test report Ex.PW4/A.
39. Hence the prosecution has failed to establish the Charge u/s.376 IPC also against the accused.
40. The accused is, thus acquitted of all the charges.
SC No.94/15. Page 15 of 16 Announced in open (VIRENDER BHAT)
Court on 14.1.2016. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.94/15. Page 16 of 16