Delhi District Court
State vs Wakil on 16 January, 2008
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IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE FAST TRACK COURTS
ROHINI DELHI
SC No. 39/2 dated 15/01/2007
Date of Decision: 16th of January, 2008
State
Versus
1. Wakil
S/o Sh. Ram Swarup,
R/o 380, Sultanpuri,
Delhi.
At present: 26/A,
Garhi Harsaru,
Railway Colony,
Gurgaon, District- Haryana,
2. Ganga Devi
W/o Sh. Ram Sarup
R/o Garhi Harsaru,
Railway Colony,
Gurgaon, District- Haryana,
FIR No. 354/2003
PS-Sultanpuri
U/s. 363, 368, 376, 34 IPC
JUDGMENT
1. First the Fact This case pertains to commission of offences under section 363, 368, 376 & 34 IPC. On 05/04/2003, Wakil -:2:- (accused) is alleged to have kidnapped the prosecutrix, aged 15 years, resident of Aman Vihar, Sultan Puri, from the lawful guardianship of her parents and during the period from 05/04/2003 to 16/04/2003 did commit rape on her. Smt. Ganga Devi (accused) has been challaned by the police on the allegations that during the period from 05/04/2003 and 16/04/2003, she wrongfully confined or concealed the prosecutrix at her house informing knowing well that she had been kidnapped and abducted by her son.
In the year 2003, Wakil accused was running shop near the house of the prosecutrix , in Sultan Puri, Delhi. On 05/04/2003 at about 6 am, the accused forced the prosecutrix to accompany him to Haridwar. She was then taken to Old Delhi Railway Station in a TSR and from there to Haridwar by train. The accused kept the prosecutrix in a Dharamshala at Haridwar for about 5/6 days. During this period, he did commit rape on the prosecutrix.
When the prosecutrix did not return home, father of the prosecutrix lodged missing report with police of Police Station Sultan Puri, on 05/04/2003 at about 06:45 p.m.
2. Case is registered On 07/04/2003, father of the prosecutrix made -:3:- statement before the police which led to registration of this case. In that statement, he named Wakil accused for kidnapping of his daughter.
3. Investigation Starts On 16/04/2003, father of the prosecutrix, went to Police Station Sultan Puri and told that co-accused Smt. Ganga Devi- mother of Wakil accused was keeping his daughter in wrongful confinement at her house. Thereupon, SI Kaushal Ganguli accompanied by lady constable Anita and father of the prosecutrix, went to the house of co-accused Smt. Ganga Devi and recovered the prosecutrix from there. At the time of recovery of the prosecutrix, co-accused Ganga Devi was also found present there. She was interrogated and then arrested.
The prosecutrix was then taken to Sanjay Gandhi Memorial Hospital where she was medico legally examined. Vaginal swabs were taken, sealed and then handed over to the police. Under garments of the prosecutrix were also sealed and given to the police. Lady constable Anita produced the above referred to sealed parcels before the investigating officer, who seized the same and then deposited them with the MHC (M). The prosecutrix was then produced -:4:- before learned Metropolitan Magistrate where she made statement under Section 164 Cr.PC. It was thereupon that the custody of the prosecutrix was given to her father.
Case of prosecution is that Wakil accused was absconding and SI Jagdish Rai obtained process under Section 82 Cr.P.C. against him after issuance of non Bailable Warrants. On 22/11/2003, the SI went to the house of Wakil accused and executed the process. It was on 25/11/2003 that Wakil accused surrendered before the court and that is how he was arrested and then removed to Judicial Custody.
On 28/11/2003, Wakil accused was taken to Hindu Rao Hospital and got medico legally examined. At the time of medico legal examination of Wakil accused, sample of blood was taken and his undergarments were seized and then given to constable Darshan, who in turn, handed over the same to PW11 SI Jagdish.
School leaving certificate was collected by the SI from father of the prosecutrix and then seized, on 16/12/2003. As per school record, the date of birth of prosecutrix is 20/01/1988.
On 14/01/2004, four sealed parcels and two sample seals were sent to CFSL Kolkatta through Constable -:5:- P.S. Tiwari, who in turn, deposited the same at CFSL on 15/01/2004, and on return deposited the receipt with the MHC (M). On completion of investigation challan was put in court.
4. Charge After compliance with provisions of section 207 Cr.P.C. , case came to be committed to the Hon'ble Court of Session.
Prima facie case having been made out, charge for offences u/s 363, 366, 376 IPC was framed against Wakil accused whereas charge for an offence u/s 368 IPC was framed against Smt. Ganga Devi accused.
Since the accused persons pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.
5. Prosecution Evidence In order to prove its case, prosecution has examined following witnesses:
Prosecutrix has stepped into the witness box as PW1 whereas as her father Sh. Hari Narain has appeared as PW3.
PW4 Poornima is the teacher of Government Girls Middle School, Sultan Puri. She has been examined to -:6:- prove date of birth of the prosecutrix i.e. 20/01/1988 as per school record.
Medical evidence is available in the statement of PW7 Dr. Manoj Dhingra, PW8 Dr. Saroj Kumar and PW9 Dr. Dhananjay Kumar.
PW2 Head Constable Bhagirath has been examined to prove recording of FIR Ex.PW2/A and DD No. 14 Ex.PW2/C. PW5 Lady constable Anita, PW6 Constable Kirti Kumar, PW10 SI Kaushal Ganguly, PW11 SI Jagdish Rai and PW12 Constable T. S. Tiwari have deposed about investigation part of prosecution story.
6. Defence Plea When examined u/s 313 Cr.P.C., accused persons denied all the incriminating circumstances appearing in evidence against them and claimed false implication.
Plea put forth by Wakil accused reads as under:
My mother Smt. Ganga Devi was not so arrested. During those days, I was away to the house of my sister at Haridwar. I stayed there for two/three months. On return, I learnt about arrest of my mother. I surrendered before the court and that is how I was arrested..... -:7:-
...... I left my house in April, 2003 after quarrel with my brother and went to Haridwar where I lived at the house of my sister for about 2/3 months. Thereafter, I came to Hapur and helped my maternal uncle in the job of Nickle polish. I returned to Delhi from Hapur in October or November 2003...
...I and the prosecutrix were in love with each other. I did not kidnap or rape the prosecutrix. I have been falsely implicated.
Plea put forth by Smt. Ganga Devi accused reads as under
My son was running a shop in Aman Vihar but I do not know as to where the prosecutrix was living in the year 2003......
......My son Wakil went to Haridwar and lived there at the house of my daughter for about two/three months. Prosecutrix was not recovered from my house. I never kept her in wrongful confinement at my house.
....Father of the prosecutrix levelled false allegation against me that my son had taken away the prosecutrix. That is why police took me away from my house. -:8:-
During those days, my son Wakil was away to Haridwar to see my daughter who was not keeping good health there."
7. Arguments heard. File perused.
8. Contentions Learned Addl. PP has referred to the statement of the prosecutrix and argued that since the prosecutrix has levelled allegations against the accused persons, case of kidnapping and commission of rape stands fully established against Wakil accused whereas case of wrongful confinement stands fully established against his co accused - his mother.
On the other hand, learned defence counsel contended that prosecution has miserably failed to substantiate any of the accusation levelled against any of the accused. Learned defence counsel has referred to the statement of the prosecutrix made in court and her statement recorded u/s 164 Cr.P.C. and pointed out contradictions on material aspects, and contended that in view of these contradictions, it is not safe to rely on the statements of the prosecutrix. It has also been contended that father of the prosecutrix got this case registered against Wakil accused -:9:- merely on suspicion and that he has failed to explain as to which fact led to suspect the accused in the kidnapping of the prosecutrix.
As regard age of the prosecutrix, learned defence counsel contended that prosecution has failed to prove on record any birth certificate depicting the age of the prosecutrix. Learned defence counsel referred to the cross examination of the prosecutrix wherein she admitted to have filed an application, during investigation of this case giving her age as 19 years and to have expressed her desire to stay at the house of the accused.
Learned defence counsel then contended that case of the prosecution regarding recovery of the prosecutrix form the house of the accused does not stand established when according to the prosecutrix herself, she was taken to the police station by Smt. Ganga Devi accused. So, learned defence counsel has urged that both the accused are entitled to acquittal.
9. Discussion Present case was registered on the statement made by Hari Narain, father of the prosecutrix on 07/04/2003, That statement is Ex.PW3/A. Prior thereto on 05/04/2003, at -:10:- 06:45 p.m., he simply lodged missing report . In the report, he informed that his daughter had left the house in the morning at about six without telling them. He further told the police that despite search his daughter was not traceable. In that report he clearly reported that he was not having suspicion against anyone.
While appearing in court as PW3, father of the prosecutrix deposed that on 05/04/2003 his daughter left the house to take milk at about 6 a.m. but she did not return home and as such he lodged missing report. The statement made by PW3 is not in consonance with what he told to police on 05/04/2003 as in the missing report he did not tell the police that his daughter had left the house to take milk. Rather he reported that the prosecutrix had left the house without telling anyone. He named the accused for the first time in statement Ex.PW3/A, recorded on 07/04/2003, while stating that he suspected the hand of the accused in kidnapping of his daughter. But prior thereto on 05/04/2003, he did not raise any suspicion against the accused. He clearly told the police on 05/04/2003 that he was not having any suspicion against anyone. In the given facts and circumstances, it was for the father of the prosecutrix to tell as to which fact led him to -:11:- suspect the accused. However, there is nothing on record to suggest as to which fact raised suspicion against the accused resulting in registration of the case against him on the basis of statement recorded on 07/04/2003.
It is not case of prosecution that the prosecutrix was kidnapped in presence of any person. Her father has failed to explain as to what led to suspicion against Wakil accused. This bring us to the statement of PW1 - the prosecutrix.
According to the prosecutrix on 05/04/2003, when she reached the shop of accused to take milk, the accused proposed to marry her. According to PW1, she turned down the proposal but the accused forced her to accompany him to Old Delhi Railway Station in an auto-rickshaw and then to Haridwar by train. At Haridwar, she was kept in a dharamshala for about 5/6 days. According to the prosecutrix, the accused even committed rape on her at Haridwar. It is also in her statement that accused told his father regarding her whereabouts at Haridwar and as such she was brought to Delhi by father of accused and that Smt. Ganga Devi accused - mother of Wakil accused took her to police station and that is how his father was informed. -:12:- Prosecutrix then narrated about her medico legal examination and making of her statement Ex.PW1/A u/s 164 Cr.P.C.
As noticed above, as per version narrated by the prosecutrix in court, the accused forced her to accompany him to Haridwar after she turned down his proposal at his shop at the time she reached there to take milk. Statement of the prosecutrix was recorded u/s 164 Cr.P.C on 17/04/2003. That statement is Ex.PW1/A. In Ex.PW1/A, the prosecutrix did not state that she had gone to the shop of the accused or that he put forth the proposal of his marriage with her or that when she turned down his proposal, he forced her to accompany to Haridwar. In Ex.PW1/A, the prosecutrix stated that the accused came to the street where their house is situated and took her to Haridwar. Therein she did not state at all that the accused proposed to marry her or that on such proposal he took her along.
It is in the statement of the prosecutrix that first of all they reached Old Delhi Railway Station in an auto- rickshaw. Had the accused taken away or enticed away the prosecutrix, she could raise alarm in the street itself or at his shop or draw attention of the auto-rickshaw driver and tell that she was being forcibly taken away by the accused. She could -:13:- also raise alarm on reaching the railway station but the fact remains that she did not raise any alarm at any of these places. She stated to have travelled to Haridwar by train but her testimony does not reveal that at any point of time she raised any alarm to attract any co-passenger. According to her, accused kept her in a dharamshala at Haridwar for 5/6 days. She could drawn attention of any of the persons present at the Dharamshala or on way from Delhi to Dharamshala that she had been kidnapped but her statement does not suggest that she took any such step in this regard. Rather she admitted in her cross examination to have not raised any alarm when she was taken to the railway station.
According to her, the compartment in which they travelled was full of passengers but she did not complain to any of the passenger that she was being taken forcibly by the accused. Although in her chief examination she deposed that the accused kept her in a dharamshala at Haridwar but in her cross examination she stated that she was kept in a hotel at Haridwar. She stated that she did not complain to any of the staff of the hotel or any of the public staying there to tell that she was brought there forcibly. It is in her statement that accused used to leave the room of the hotel during day time. -:14:- If it was so, even then she was having opportunity either to run away or to report the matter to the police or draw attention of the employees of the hotel.
However, the prosecutrix did not take any such step. Explanation put forth by the prosecutrix is that at the time accused used to leave hotel he used to bolt the door from outside. But even then she could bang the door so as to draw attention of the persons/employees present in the hotel. However, there is nothing on record to suggest that she took any such step. She admitted in her cross examination to have not stated before the police that the accused used to bolt the door from outside. This fact also does not find mentioned in her statement Ex.PW1/A recorded u/s 164 Cr.P.C.
It may be mentioned here that in her cross examination, the prosecutrix admitted to have voluntarily accompanied the accused of her own free will. She denied that the accused kidnapped her. She further stated in her cross examination even to have told the police that she had accompanied the accused on her own free will, but she displayed ignorance as to why the police did not record this fact.
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In her cross examination, it has appeared that she was in love with the accused. She admitted in her cross examination to have written love letter Ex.PW1/D1 to the accused of her own. She also admitted that she wanted to marry the accused but when she came to know that he belongs to other caste, she changed her mind and deposed against him.
As noticed above, according to the prosecutrix, accused kept her at Haridwar for about 5/6 days. However, in her statement Ex.PW1/A recorded u/s 164 Cr.P.C , she stated that after committing rape on her, the accused ran away from Haridwar leaving her alone and thereafter she lived at Haridwar alone for nine days. She did not depose about this fact in her statement made in court. It was for the prosecution to explain as to why she did not report the matter to police when the accused had run away leaving her behind alone. Furthermore, in her statement made in court, she nowhere stated that the accused at any point of time ran away leaving her alone at any place in Haridwar. Contrary to it, in her statement made in court, she stated that it is the accused who told his father about their presence at Haridwar and thereupon father of the accused reached there and brought her back to -:16:- Delhi. This fact narrated by the prosecutrix is not in consonance with her version available in her statement made u/s 164 Cr.P.C. - Ex.PW1/A. Therein she stated that after the accused ran away leaving her alone at Haridwar, she alone returned to her house. At this stage, when we advert to the version narrated by the other prosecution witnesses, it would transpire that the version narrated by the prosecutrix does not find corroboration from their statements. First of all, PW3 Hari Narain - father of the prosecutrix deposed that on 16/04/2003 his daughter was recovered from the house of the accused. PW10 SI Kaushal Ganguly also deposed to have accompanied father of the prosecutrix to the house of Smt. Ganga Devi accused and recovered the prosecutrix from there. According to PW10 SI Kaushal Ganguly on 16/04/2003 father of the prosecutrix came to him at the police station and told that Smt. Ganga Devi accused was keeping his daughter in wrongful confinement at her house. However, there is nothing in the statement of PW3 Hari Narain that it was he who informed the police about availability of his daughter at the house of Smt. Ganga Devi accused. In her cross examination, he stated that police took him to the house of sister of accused situated in Wazirpur on 12/04/2003 on the -:17:- suspicion that his daughter could be available there. He nowhere stated that any body told him that his daughter was kept secretly by Smt. Ganga Devi accused.
On the other hand, according to the prosecution when father of the accused brought her from Haridwar to Delhi, mother of the accused took her to police station and that is how her father was informed by the police. However, none of the other prosecution witnesses deposed that mother of the accused brought the prosecutrix to the police station. Even if, as per statement of the prosecutrix, mother of the accused took her to the police station, there is no explanation as to why the prosecutrix was not recovered from the mother of the accused and as to why at that very time the mother of Wakil accused was not arrested. The investigating officer has come forward with story of recovery of the prosecutrix from the house of Ganga Devi accused on 16/04/2003. In the given circumstances, had he recovered the prosecutrix from the house of Smt. Ganga Devi, the investigating officer should have associated witnesses from the public. However, there is nothing on record to suggest that any person from the locality was associated so as to lend corroboration to the version of the prosecution about recovery of the prosecutrix from the -:18:- house of the accused. In absence of any corroboration from independent source and in view of statement of the prosecutrix that she was taken to the police station by Smt. Ganga Devi accused, the prosecution version narrated by father of the prosecutrix, PW5 lady constable Anita and PW10 SI Kaushal Ganguly regarding her recovery from the house of Smt. Ganga Devi falls to the ground.
Learned Addl. PP has submitted that in April 2003, the prosecutrix was about 15 years of age and since the accused took her away, the charge of kidnapping of the prosecutrix, stands fully established. In order to prove the factum of age of the prosecutrix, prosecution has examined PW4 Poornima, teacher of the concerned school where the prosecutrix was enrolled as a student. As per school record, date of birth of the prosecutrix is 20/01/1988. It is true that as per school record her date of birth stands recorded as 20/01/1988, but there is nothing on record to suggest as to on the basis of which document this age was recorded in the school record. During investigation, the investigating officer did not seize any record from MCD or any birth certificate to corroborate the age as recorded in school record.
In her cross examination the prosecutrix admitted -:19:- to have filed an application Ex.PW1/DB in the court of learned Metropolitan Magistrate, wherein her age was written as 19 years and that she expressed her desire to stay at the house of the accused. She also admitted in her cross examination that the application Ex.PW1/DB was bearing her signatures. No doubt she put forth the explanation that her signatures were obtained by the accused on this application, there is nothing in her statement to suggest as to on which date and time and which of the accused got her signatures on this application, particularly when as per version of the prosecution she was recovered on 16/04/2003 and Smt. Ganga Devi accused was in custody of the police whereas Wakil accused was still at large. The prosecutrix admitted in her cross examination that she refused to accompany her father at the time she was produced in court. She further admitted that while so refusing to accompany her father she stated that in case she could not be sent to the house of the accused, she be sent to Nari Niketan. She further admitted that during investigation, she was set at liberty under the orders of the Metropolitan Magistrate as she was major.
As regards commission of rape, the prosecutrix has come forward with the version that during the period of -:20:- 5/6 days, she was kept in a dharamshala by the accused and was ravished by him. It may be mentioned here that although in her chief examination, she deposed about their stay in a dharamshala, in her cross examination she stated that they stayed in a hotel. Had the accused ravished her in the hotel she could raise hue and cry so as to attract persons / employees present in the hotel. As already noticed above, the prosecutrix admitted in her cross examination that she did not make any complaint to the staff of the hotel or any person staying there. In her statement u/s. 164 Cr.P.C. , she deposed that after committing rape the accused ran away from Haridwar. However, in her statement made in court, prosecutrix did not state about running away of the accused. In her statement made in court rather she deposed that the accused told his father about their whereabouts at Haridwar and thereupon his father brought her to Delhi. As noticed above, in her cross examination, the prosecutrix admited that she wanted to marry the accused but when she came to know that he belonged to different caste, then she changed her mind and deposed against him. This goes to show that she has made statement against the accused only after having come to know that the accused was of caste different from her -:21:- caste, and that otherwise she would not have levelled any allegation against the accused. All this creates doubt regarding allegation of rape by Wakil accused.
10. Conclusion In view of the above discussion, this court comes to the conclusion that prosecution has failed to substantiate any of the accusation levelled against any of the two accused. Consequently, Wakil and Smt. Ganga Devi accused are acquitted of the charges framed against them.
Case property be destroyed in accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court on dated 16th of January, 2008 ( Narinder Kumar ) Additional Sessions Judge Fast Track Courts Rohini : Delhi -:22:-