Delhi District Court
State vs . Ramesh @ Ravi & Anr. on 17 January, 2015
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 23/12)
Unique ID case No. 02404R0227212014
State Vs. Ramesh @ Ravi & Anr.
FIR No. : 292/2010
U/s : 363/366/376/120B/34 IPC
P.S. : Rohini
State Vs. 1. Ramesh @ Ravi
S/o Rajesh
R/o Jhuggie No. 113, JJ Camp,
Near Jaipur Golden Hospital,
Sector03, Rohini, Delhi.
2. Dharmender
S/o Satbir Singh
R/o B102, Mangol Puri,
Delhi.
Date of institution of case 25.02.2012
Date of arguments : 17.01.2015
Date of pronouncement of judgment : 17.01.2015
JUDGMENT:
1. Briefly stated the case of the prosecution is that the victim P aged about 15 years left her house for school at about 7.00 am, on 31.08.2010. S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 1 of 36 2 However, she did not return back to her back till late evening. Her family made efforts to search for her, but when there was no clue about the victim, the matter was reported to the police vide DD no. 57B i.e. Ex.PW22/A, which was assigned to SI Mohd. Imtiaz for inquiry. SI Mohd. Imtiaz made efforts to contact complainant Satbir, but he was not found available. At about 2.35 am, on 01.09.2010, complainant Satbir went to the police station himself and made complaint about missing of victim P. He expressed his suspicion on accused Ramesh for having enticed and kidnapped his daughter and prayed that necessary action be taken against him. SI Mohd. Imtiaz got registered a case u/s 363 IPC on the basis of complaint made by Sh. Satbir and when further investigations of the case was assigned to him, pursuant to registration of the FIR, he commenced searched for the victim P as well as accused Ramesh. During the course of investigations, IO SI Imtiaz came to know that accused Ramesh and his jija Dharmender had taken the victim to their native village at Bulandshahar, UP. The IO conveyed this information to the complainant Satbir and after obtaining necessary permission, went to Bulandshahar, UP along with complainant Satbir and his own staff comprising of Ct. Vinod, Ct. Biri Singh and Lady Ct. Meenakshi and recovered the victim as well as accused Ramesh from jhuggie of accused Dharmender. On inquiry, victim P told the IO that on 31.08.2010, when she left her house for school, accused Ramesh @ Ravi met her on the way and started talking to her, due to which, she got late for school and was not permitted to enter S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 2 of 36 3 inside the gate of the school by the guard. Thereafter, accused Ramesh @ Ravi, took the victim R to the house of his sister, where his jija Dharmender as well as accused Ramesh @ Ravi, scared the victim and prevented her from going home by telling her that in case, she returned back to her home, she would be scolded by her family members. They instead took her to their village and after reaching there, victim came to know that she had been taken to the house of accused Dharmender in village. The victim R further stated that accused Dharmender left her and accused Ramesh @ Ravi at the said house and went away from there after taking some money from accused Ramesh @ Ravi and thereafter, accused Ramesh @ Ravi committed rape upon her. At night, when victim and accused Ramesh @ Ravi were about to leave the village, they were stopped by the villagers from leaving the village and thereafter, the police officials from Delhi came and recovered the victim and saved her from the clutches of accused Ramesh @ Ravi.
The IO brought the victim P as well as accused Ramesh @ Ravi to Delhi on the night of 01/02.09.2010 and sent them for their medical examination and also seized the exhibits taken from them by the concerned doctor. On 02.09.2010, the IO produced the victim before ld. M.M and got her statement recorded u/s 164 Cr.P.C and on the basis of the said statement, added Section 366 and 376 IPC in the case. Further investigations of the case were thereafter, assigned to ASI Nirmala, who got the exhibits of the case sent to FSL Rohini. She also arrested the S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 3 of 36 4 accused Dharmender, jija/brotherinlaw of the accused Ramesh @ Ravi on 01.10.2010. During the course of investigations, IO also made inquiry from the villagers, where accused Ramesh @ Ravi had taken the victim P, and was told by them that they had stopped accused Ramesh @ Ravi and victim P from leaving the village apprehending that some untowards incidents may occur with them due to late night hours. However, they had gone to inform the police, but before the local police could come, officials from Delhi Police reached their village. The IO also obtained the documents of the age of the victim from the school, according to which, date of birth of the victim was 12.10.1995. After completion of investigations, charge sheet was prepared and filed before the court of ld. M.M. Subsequently, the FSL result was also obtained and filed by the IO.
2. After committal, the arguments on charge heard and the charges for the offence under Section 363/366/376 IPC was framed against accused Ramesh @ Ravi. Further a charge u/s 120B IPC was framed against the accused persons Ramesh @ Ravi and Dharmender. A separate charge u/s 363/366 IPC was also framed against the accused Dharmender. The accused persons pleaded not guilty to respective charges framed against them and claimed trial and thereafter, the case was fixed for prosecution evidence.
3. The prosecution has examined 22 witnesses in support of its case. S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 4 of 36 5 Prosecutrix and other public witnesses :
4. The PW1, Sh. Satbir, is the complainant/father of the prosecutrix and he deposed that he was working as a TSR driver and that the prosecutrix was his daughter, who was then aged about 17 years (at the time, when witness appeared to depose before the court) He further deposed that on 31.08.2010, at about 07.00 a.m, his daughter P went to school in the morning in her school uniform, however, she did not return back till late evening and that, he made efforts to trace her and thereafter, gave a call to the police at 100 number and also went to the Police station to make his complaint. He proved his complaint as Ex. PW1/A. He further deposed that later on, he came to know that accused Ramesh and Dharmender, had taken taken his daughter to Village Nangla, Distt. Bulandshehar, UP and that police also came to know about this fact and that on 01.09.2010, he (PW1) went with the police officials to village Nangla and reached there during night hours and conducted raid and recovered the prosecutrix and apprehended the accused Ramesh. The witness proved the recovery of of his daughter as Ex. PW1/B and further stated that his daughter as well as accused Ramesh @ Ravi were brought to Delhi, while accused Dharmender could not be traced at village. The PW1 further deposed about being handed over the custody of his daughter by the order of the court vide receipt Ex. PW1/C. During crossexamination by learned defence counsels, the PW1 termed it correct that the accused Ramesh was residing in his colony and S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 5 of 36 6 was studying in the same school as the prosecutrix. The PW1 denied that prosecutrix used to talk to accused Ramesh from his (PW1's) mobile as well as from the mobile of his elder brother. He also denied that prosecutrix was on friendly terms with accused Ramesh or that he was aware of this fact. As regards the recovery of the prosecutrix, the PW1 stated that he had gone to Bulandshehar with his two relatives, father of accused Ramesh, two male police officials and one female police official. The PW1 denied that he was aware about the intimate relationship of his daughter with the accused Ramesh since two years prior to the incident or that he had falsely implicated the accused persons as he was not ready to marry his daughter with the accused Ramesh.
5. The PW7, P is the prosecutrix in the present case and she deposed that she used to study in Sarvodya School, Sector3 and that on 31.08.2010, on the way to school, at about 7.00 am, she met accused Ramesh, who was staying in her locality and that he started talking to her, due to which, she got late for school and was refused entry in the school by the school chowkidar as the entry time was over. The PW7 further deposed that thereafter, accused Ramesh enticed her and took her to the house of his sister at Mangol Puri, where, accused, his sister, and Jija Dharmender (accused) frightened her by telling her that if, she (PW7) returned home, she would be scolded by her parents and was thus enticed to go with them to their native village in U.P. The PW7 stated that S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 6 of 36 7 she could not recall the name of said village and that when they reached said village, accused Dharmender took some money from accused Ramesh and went away and thereafter accused Ramesh did Galatkam with her (victim P) on two occasions on that night despite her refusal. She further deposed that she was scared and that when, she and accused Ramesh tried to leave village at night, the villagers stopped them from leaving due to late hours and that one of the friend's of accused Dharmender met them and took them to his house, from where PW7 was recovered by the police. The PW7 also explained the meaning of 'Galatkam' by stating that accused Ramesh established relations as husband with her. The PW7 further deposed about her and accused Ramesh @ Ravi being brought to Delhi and her medical examination as well as seizure of her school uniform by the doctor, who examined her.
Some leading questions were put to the witness, in response to which, PW7 termed it correct that she had appeared before a lady Magistrate earlier to give her statement and proved the same as Ex. PW2/B. The case property was shown to the witness and at that time, it transpired that at the time of examination of PW7 in the hospital, the concerned doctor had seized one suit and not the school uniform of the PW7 as stated by her. The PW7 identified the said suit as Ex. P1 (colly).
A court question was asked from the witness to seek clarification about the clothes, which the witness was wearing at the time of her medical examination. The court question and the response of the S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 7 of 36 8 witness to the same, is as under : Court Ques.: On the last date of hearing i.e. 09.07.2013, the case property i.e. Ex.P1 (colly) was shown to you, however, you had denied that clothes belonged to you and had said that you were wearing school uniform at the time of your medical examination. Today you had identified Ex.P1 (colly) as the clothes which you were wearing at the time of your medical examination. Can you explain this discrepancy ?
Ans.: I had forgotten the fact that I was wearing a suit and just remembered that I was wearing school uniform as on the day of the incident I had left my house for school in my school uniform.
The PW7 identified both the accused persons correctly in the court.
During her crossexamination, the PW7 termed it correct that she and accused Ramesh were residing in the same colony. However, she denied that they used to study in the same school or that she used to talk to accused Ramesh on his mobile phone or that she had her photograph taken with the accused in a park.
Two photographs mark X and Y were shown to the witness, however, the witness stated that she was unable to identify herself in the photographs as the same were not clear.
S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 8 of 36 9
During her further crossexamination, the PW7 termed it correct that on the day, she went missing from the house, she had left her house for going to school in school uniform and that she could not attend the school on that day. She further deposed that accused had taken her from school in a bus and that she did not tell anybody in the bus that accused was taking her away forcibly as there were two persons i.e. accused and his Jija Dharmender, who told her not to disclose about it to anyone, 'Nahi to achha nahi hoga'.
At this stage, the witness was asked to clarify as to where, she had met accused Dharmender by way of court question. The witness responded by stating that when she got late for the school and accused Ramesh was taking her forcibly with him, towards his house, his Jija Dharmender met them outside his house.
The PW7 denied that she was having love affair with accused Ramesh since last about 1 ½ - 2 years.
During her further crossexamination, the PW7 admitted that she has given a handwritten statement Ex. PW7/X to the police and had gone through its contents after writing the same. She however, stated that it had been wrongly mentioned in her statement Ex.PW7/X that she had left home at 4:00 PM. She termed it correct that she had mentioned in reply to question No. 14 that she had met the brotherinlaw (jija) of accused at home and that she had not mentioned in Ex.PW7/X that the brotherinlaw (accused Dharmender) of accused Ramesh had also S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 9 of 36 10 enticed her. The witness further denied that she had mentioned word 'Nahi' at point "B" in reply to question No.16 in Ex.PW7/X. When the witness was question about Preeti, she (PW7) stated that said Preeti was her bhabhi, who has also signed on written statement Ex.PW7/X. She termed it correct that her bhabhi Preeti was literate.
Regarding the incident, the PW7 stated that on 31.08.2010, she had reached gate of her school at about 8:30 AM and that it took her about 15 minutes to reach school from her house. She further deposed that she had refused to talk to accused Ramesh, but he kept on following her to her school. She termed it correct that some public persons were present on the road at that time and that she did not ask said public persons to help her. She also stated that the chowkidar at school, had not seen accused Ramesh at that time as he was standing some distance ahead of the school gate and that she did not tell the chowkidar about the conduct of accused. The PW7 denied that the late comers were allowed to enter the school, however, a note was given in their diary regarding their late coming by the Principal as per rules of the school. The PW7 further deposed that accused Ramesh took her to the house of his sister at Mangol Puri on foot and that on the way, many public persons were coming and going and that accused was holding her hand and that she was literally being dragged by him and that she did not raise any alarm about the said conduct of accused Ramesh. She further deposed that since, it was noon time, nobody was present in the gali, where the house S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 10 of 36 11 of sister of accused Ramesh was situated and that she did not raise alarm, when accused Ramesh took her inside the house of his sister and that they remained at the house of the sister of accused Ramesh for about 5 to 10 minutes and that she did not raise any alarm during her stay in the said house.
The PW7 further stated that the place from where, they took the bus for village. was a big bus addah (terminal) and that she had not told the police the name of the State as well as the village, where she had been taken by the accused, in her previous statements. She termed it correct that there were other passengers besides the bus driver and conductor, in the bus, in which she and accused were travelling and that she did not raise alarm in the bus, in which, she was taken to the village. The PW7 termed it correct that none of the accused persons had shown her any weapon. She volunteered to state that she had been threatened by them. The PW7 further deposed that the bus stop, where they alighted from the bus was far away from the village and that they had gone to the house of accused Dharmender on foot from there and that no public person met her on the way as after crossing the road, there were fields and jungle upto the house of accused and that no family member of accused Dharmender was found present at his house. She further deposed that the house, just adjacent to the house of accused Dharmender, was vacant and that she did not see any other house near the house of accused Dharmender and that since, no one was there in the S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 11 of 36 12 said house except accused persons, she did not raise alarm by uttering 'bachao bachao'. The PW7 then stated that she did not tell anything to the villagers, who stopped them from leaving the village due to late hours. She volunteered to state that it was so as she was scared. The PW7 also stated that she had not stated in her statement u/s.164 CrPC Ex.PW2/B that a woman met her at the village, who talked to her. The PW7 was confronted with her statement u/s 164 Cr.P.C, where it was so recorded. The PW7 termed it correct that father of accused Ramesh had also accompanied the police officials to the village. She denied that at that time she had told her father and police officials that she had voluntarily come with the accused Ramesh or that she wanted to marry him or that she was brought to Delhi forcibly from the village by the police at the instance of her father. The PW7 also denied that accused Dharmender had met her in the village, where she was taken by accused Ramesh, only or that at that time, accused Dharmender had scolded accused Ramesh and had also informed the parents of PW7 after taking their mobile number from her.
6. The PW12, Sunita is the mother of the victim, while PW11 Sh. Sajay is the cousin brother of the victim and they both had come to Rohini court on 02.09.2010, on which date, the custody of the victim was handed over to them, vide memo Ex. PW9/A, pursuant to the directions given by learned M.M and deposed regarding the same.
S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 12 of 36 13 Witnesses qua the age of the victim/prosecutrix :
8. The PW8, Sh. Mukesh Kumar, produced the record, from MCD office, pertaining to victim P born to Satbir and Sunita and deposed that as per record, the date of birth of child P was 12.10.1995 and that the entry with regard to the date of birth of child P was entered in MCD record on the order of Sh. Sukhbir Singh, Executive Magistrate, Saraswati Vihar, which was produced before their office on 23.07.2009, along with the Birth Report Form, which was filled in and submitted by Sunita, mother of child P. He proved the copy of the SDM Order as Ex. PW8/A and copy of the birth report form as Ex. PW8/B. During crossexamination, the witness stated that no separate inquiry was made by their office before entering the date of birth of child Pooja in their record. He volunteered to state that once, order from the office of SDM was received, no further inquiry was conducted and that the order of SDM was not sent directly to their office and that the concerned person, whose date of birth was to be entered in the record, produced the same along with the Birth report form as and when, he or she desired to have his/her date of birth entered in their record. He further stated that the birth report form was got filled in their office by either of the parents of the child.
9. The PW14, Sh. S.S. Dahiya, Vice Principal, Sarvodya Vidyalaya, S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 13 of 36 14 Sector03, Rohini, Delhi, produced record from the school, wherein victim child/prosecutrix M was studying in 8th class and she deposed that as per attendance register, on 31.08.2010, the prosecutrix was absent for the whole day and that her absence was marked in the attendance register. She proved the copy of the said relevant entry on the attendance register as Ex. PW14/A. She further deposed that prosecutrix P was admitted in 6th class in their school on the basis of SLC and marksheet issued by MC Primary School. The PW14 proved copies of the SLC as well as Marksheet of the victim P as Ex. PW14/B and Ex. PW14/C, respectively and stated that as per the school record, the date of birth of child P was 12.10.1995. The witness also proved the relevant entry in admission register qua the victim child P as Ex. PW14/D and the certificate issued by Sh. N.D. Yadav, the then Principal of the school (giving details of date of birth of child) as Ex. PW14/E respectively.
Doctor witnesses :
10. The PW3, Dr. Renu, has proved the MLC of the prosecutrix P as Ex. PW3/A, by identifying the handwriting and signatures of Dr. Rashmi Lata, SR Gynecologist, who had examined victim P and deposed regarding the same. She further deposed that as per MLC, internal geneteria of patient was found well developed and her hymen was found torn.
S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 14 of 36 15
11. The PW15, Dr. Rashmi, deposed that on 02.09.2010, prosecutrix d/o Sh. Satbir, 15 years, female, was referred to her in the Gynecology Department from the Casualty Department for examination with the alleged history of absconding with the boyfriend for two days and having physical relations with the said boy, as told by the patient and that she examined the patient P and prepared her MLC Ex. PW3/A. She further deposed on examination, no obvious fresh external injury on external genetalia was found and that the hymen of the patient was found torn. She further deposed that after examination, she collected the samples and sealed the undergarments and clothing of the prosecutrix and handed over the same to the W/Ct. Sandhya. She further deposed that at that time, the prosecutrix was wearing suit and salwar and not a school uniform. The witness identified the clothes of the victim i.e. one red and cream colour printed salwar and shirt and one sports bra of red colour, which the prosecutrix was wearing at the time of her medical examination, as Ex. P1. (colly).
To elicit truth, some court questions were put to the witness, in reply to which, she deposed as under : Court Ques.: Who seizes and seals the clothes taken from the patient / prosecutrix in the hospital ?
Ans.: The clothes are handed over to the doctor but are sealed by the Nurse under supervision of the doctor, who examines the patient.
S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 15 of 36 16 Court Ques.: Is there a possibility of change of clothes when two or more patients are examined simultaneously ?
Ans. No. Court Ques.: Is there a possibility of clothes of prosecutrix in the present case being exchanged with clothes of some other patient in the examination room ?
Ans. No. At the time when I examined the prosecutrix there was only one patient i.e. the prosecutrix in the room and there is no possibility of her clothes being exchanged with some other person.
Court Ques. : Did you hand over the seal of the hospital, with which the clothes of the prosecutrix were sealed, to anyone including the IO after sealing the clothes ?
Ans. No, there is only one seal in the Casualty which is used by all the doctors and that seal does not go out of the hospital at any time. IO was only given sample seal.
During crossexamination, the PW15 stated that the doctors in the hospital did not have their own individual seal and used the seal of hospital only and that no record was maintained in the hospital of the samples taken and sealed. The witness could not comment, whether the seal similar to seal of hospital could be got made from the market or if the S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 16 of 36 17 same was used by someone.
12. The PW6, Dr. Kuldeep Singh has proved the MLC of the accused Ramesh Kumar as Ex. PW6/A, by identifying the handwriting and signatures of Dr. Raj Mohan Trivedi, who had examined accused Ramesh and deposed regarding the same. He further deposed that as per observations of Dr. Raj Mohan Trivedi on the MLC, there was nothing suggestive of his inability (inability of accused) to perform sexual intercourse.
Police Witnesses :
13. The PW4, W/Ct. Shashi, was posted as DD writer at PS South Rohini at the relevant time and had recorded DD No. 57B on 31.08.2010, at about 8.50 pm, on call received in the PS from mobile phone no. 9310997919 regarding brawl at house no. 266, Sector03, Rohini. She proved the attested true copy of DD No. 57B as Ex.PW4/A by producing the original DD register.
14. The PW18, Retd. HC Amarsukh, was posted as duty officer at PS South Rohini at the relevant time and had recorded the case FIR in the present case. He proved the endorsement made by him on the rukka as Ex.PW18/A and the computerized copy of FIR as Ex.PW18/B. S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 17 of 36 18
15. The PW22, SI Mohd. Imteyaz, is the main investigating officer of the present case and he deposed that on 31.08.2010, at about 8:50 PM, DD No.57B i.e. Ex. PW22/A was entrusted to him for inquiry through phone by duty officer and that after receiving the said DD, he reached at Jhuggi No.224, Indra J.J. Camp, Sector3, Rohini, Delhi, where he met some public persons, but complainant was not found there. He further deposed that on being contacted by him (PW22), complainant informed him that his daughter had gone missing since morning and that he was searching for his daughter and that he (complainant) would meet him (PW22) later on in the PS and would tell him (PW22) about the facts. The PW22 further deposed that on the same night, at about 2:30 AM, the complainant/PW1 Satbir came to PS and got his statement Ex.PW1/A recorded and that on the basis of said statement, he made his endorsement, prepared rukka Ex.PW18/A and handed it over to the duty officer for registration of FIR. He further deposed that in the FIR, the complainant raised suspicion on one of his neighbors i.e. accused Ramesh for kidnapping of his daughter and that despite his efforts, accused Ramesh could not be apprehended.
The witness further deposed that in the afternoon of 1st Sept. 2010, on receipt of secret information that accused Dharmender (brotherinlaw of accused Ramesh) was residing in Bulandshahar, he along with PW21 Ct. Biri Singh, PW19 Ct. Vinod, PW19 lady Ct. Meenakshi, complainant/PW1 Satbir and Rajesh Singh (father of accused Ramesh) S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 18 of 36 19 left for Bulandshahar in a private vehicle and reached at village Nangal, Bulandshahar, UP, where on inquiry, he came to know that accused Dharmender had brought one boy and a girl in his house and that they were present in the house of one Somvir. He further deposed that thereafter, the villagers took them to the house of Somvir, where the victim child P and accused Ramesh were found present in the house and on the identification by the complainant Satvir, prosecutrix was recovered vide recovery memo Ex.PW19/A and her custody was handed over to PW19 Ct. Meenakhi. The witness further deposed about the arrest and personal search of the accused Ramesh vide arrest memo Ex.PW10/A and personal search memo Ex.PW10/B. He further deposed about recording the disclosure statement Ex. PW22/B of the accused. He further deposed about getting medical examination of victim/prosecutrix conducted through PW16 W/Ct Sandhya and of accused through PW17 Ct. Umesh and deposed that after respective medical examination, PW16 W/Ct. Sandhya handed over the sealed exhibits of the victim child and PW17 Ct. Umesh produced the sealed exhibits of accused before him (PW22), which were seized by him vide seizure memos Ex.PW16/A (of victim child) and Ex.PW22/C (of accused). He further deposed that thereafter, he examined the victim child P, in the presence of her bhabhi Priti, in question answer form and got recorded the statement Ex. PW7/X in victim's own handwriting. The witness further deposed that on 02.09.2010, statement u/s 164 Cr.P.C, Ex.PW2/B of victim child was S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 19 of 36 20 recorded vide his application Ex.PW2/A and that he also obtained the copy of the statement of the victim vide his application Ex.PW2/D. He further deposed that thereafter further investigations of the present case was handed over to PW13 W/SI Satyawati.
During crossexamination by learned defence counsel, the PW15 deposed that he reached village Nangal at about 8:00 PM and that he did not visit local police station to record his presence and did not call the Pardhan of the said village. He further deposed that he did not record the names or addresses of public persons present in the said village Nangal. He then corrected himself by saying that no one told him their names and went away. He denied that the victim had told him that she had voluntarily accompanied the accused or that she wanted to remain with him of her own free will. He further denied that the accused Dharmender had informed the family members of victim about her whereabouts or that accused Dharmender had been falsely implicated in this case being the relative of accused Ramesh @ Ravi. He further stated that he did not verify the record from first attended school of the victim and that the father of the victim had shown him the said document, but he (PW22) did not collect the same from him. He denied that he had not collected the CDR of the mobile phones of the victim child or her father deliberately to conceal the fact that the victim used to made calls to the accused Ramesh @ Ravi.
S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 20 of 36 21
16. The PW16, L/Ct. Sandhya, had joined the investigations of the present case with PW22 IO SI Mohd. Imtiaz on the night intervening 1/2 nd September 2010 and got the prosecutrix medically examined at BSA Hospital and deposed that after her medical examination, the doctor had handed over the exhibits and clothes of the prosecutrix, in sealed condition to him, and that IO seized the same in her presence vide memo Ex. PW16/A.
17. The PW17, Ct. Umesh, had joined the investigations of the present case on the night intervening 1/2nd September 2010 and got the accused medically examined at BSA Hospital and deposed regarding the same.
18. The PW19, Ct. Meenakshi, had joined the investigations of the present case with PW22 SI Mohd. Imtiaz on 01.09.2010, at the time of recovery of prosecutrix and apprehension/arrest of accused Ramesh @ Ravi from village Nangla, Bulandshehar, UP and deposed regarding the same.
19. The PW21, Ct. Biri Singh, had joined the investigations of the present case with PW22 SI Mohd. Imtiaz on 01.09.2010, at the time of recovery of prosecutrix and apprehension/arrest of accused Ramesh @ Ravi from village Nangla, Bulandshehar, UP and deposed regarding the same. He further deposed that on 23.09.2010, he took the exhibits of the S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 21 of 36 22 present case to FSL Rohini vide RC no. 90/21/10 and deposited the same there.
20. The PW20, ASI Nirmala Sharma, is one of the subsequent investigating officers of the case and she deposed that 18.09.2010, on entrustment of the further investigation of the case, she got the exhibits of the present case deposited in FSL Rohini on 23.09.2010 through PW21 Ct. Biri Singh. She further deposed that on 30.09.2010, on being directed by learned MM to get the age verification of accused Ramesh @ Ravi done, she had collected the certificate Ex. PW20/A as well as copy of school leaving certificate Ex. PW20/B, from Sarvodya Vidyalaya, Sector3, Rohini regarding the date of birth of accused Ramesh @ Ravi.
She further deposed that on 01.10.2010, she along with PW10 Ct. Vinod went in search of accused Dharmender and reached at B102, Mangol Puri, Delhi, i.e. the house of accused Dharmender and that from there, accused Dharmender was arrested vide arrest memo Ex.PW10/C and after arrest was personally searched vide memo Ex. PW10/D. The witness also proved the disclosure statement made by accused Dharmender as Ex.PW10/E. She further deposed about recording of statement of public witness Somveer.
During crossexamination, the witness denied that she did not visit the house of accused Dharmender or that he was called at PS and was later on arrested in the present case. She further denied that S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 22 of 36 23 accused Dharmender was falsely implicated in the present case as he was relative (Jija) of accused Ramesh @ Ravi or that accused Dharmender had informed the father of prosecutrix regarding the arrival of the prosecutrix and accused Ramesh at village Nangal.
21. The PW10, Ct. Vinod Kumar, had joined the investigations with PW22 IO SI Mohd. Imtiaz on 01.09.2010 and with PW20 ASI Nirmala Sharma on 01.10.2010 and deposed on the same lines as of PW20 and PW22.
22. The PW13, W/SI Satyawati, is one of the subsequent investigating officers of the case and she deposed that on 31.10.2010, on marking of the further investigations of the case, she removed the objections put forth by the prosecution branch by obtaining the absence record of the prosecutrix from her school and placed the same on record and that after adding the Section 120B IPC, she filed the charge sheet in the court.
23. The PW5, HC Ajay Pal, was posted as MHCM at P.S. South Rohini at the relevant time. He deposed about different entries made by him in Register No. 19 at the time of deposit of exhibits in Mal khana and in register no. 21 at the time of sending the exhibits to FSL Rohini and proved the said entries as Ex. PW5/A to Ex. PW5/C, respectively. He further deposed that on 11.07.2011, FSL result and the case property (in S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 23 of 36 24 sealed condition) was received from FSL and that same was handed over to PW13 SI Satyawati.
Witness qua the statement u/s 164 Cr.P.C of the prosecutrix :
24. The PW2, Ms. Smita Garg, learned Metropolian Magistrate, had conducted the proceedings u/s.164 Cr.P.C and proved the same as Ex.PW2/A to Ex.PW2/D i.e. the application filed by IO for recording of statement of prosecutrix u/s.164 Cr.P.C as Ex.PW2/A ; statement of the prosecutrix as Ex. PW2/B ; the certificate given by PW2 as Ex.PW2/C and application for supply of copy of said statement, filed by IO, as Ex. PW2/D.
25. After closing of prosecution evidence, statements of accused persons Ramesh @ Ravi and Dharmender were recorded u/s 313 Cr.P.C, wherein the accused persons denied the allegations of the prosecution and stated that they are innocent and had been falsely implicated in the case at the instance. Accused Ramesh @ Ravi further stated that he was having a love affair with the prosecutrix and as they belonged to different castes, parents of prosecutrix were against their relations and that this case was an outcome of hatred and frustration of the parents of the prosecutrix.
Accused Dharmender further stated that in fact, he was the person, who had made a call to the father of the prosecutrix informing him S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 24 of 36 25 about the presence of prosecutrix and accused Ramesh at his native place and that he was roped in this case later on, when father of the prosecutrix reached at his native village and had a scuffle with him. (accused) The accused Dharmender declined to lead evidence in his defence, while the accused Ramesh wished to lead defence evidence. Later on, accused Ramesh @ Ravi, also closed his D.E without examining any witness.
26. Arguments have been addressed by learned amicus curie for the accused Dharmender and learned counsel for accused Ramesh @ Ravi as well as learned Additional PP for the State. Written submissions on behalf of the accused persons also filed.
27. Learned Additional PP has contended that in view of the statement of the PW1 Sh. Satbir and PW7 victim P, prosecution has succeeded in proving its case against the accused persons. She further submitted that from the testimony of PW8 Mukesh Kumar and PW14 Sh. S.S. Dahiya, it has been established that the prosecutrix was a minor at the time of alleged offence and as such her consent, if any, is not relevant. She further submitted that prosecution has succeeded in proving its case against the accused beyond reasonable doubt and has accordingly prayed that accused persons be convicted for the charged offence.
28. Ld. Counsel for accused Ramesh Kumar @ Ravi has submitted S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 25 of 36 26 that accused is innocent and has not committed any offence. It is further submitted the the victim was having a love affair with the accused and had voluntarily gone with him as her family members came to know about her love affair with the accused and because of different caste, parents of the prosecutrix were against the marriage of accused Ramesh with the victim and for this reason, he was falsely implicated in this case. Learned Amicus Curie for accused Dharmender has submitted that he was falsely implicated in this case only being the relative of the accused Ramesh @ Ravi and in fact, Dharmender had helped the father of the prosecutrix in tracing her. It is lastly contended that since the victim had voluntarily gone with the accused Ramesh @ Ravi, no offence of kidnapping is made out against the accused persons.
29. I have heard the arguments put forward by ld. Addl. PP as well as learned counsel for the accused Ramesh @ Ravi and ld. Amicus Curie for the accused Dharmender and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case as well as written submissions filed on behalf of the accused persons.
30. In the present case, the accused Ramesh @ Ravi is alleged to have kidnapped victim P, a minor girl aged about 15 years from the lawful guardianship of her father with intention to compel her to marry him and/or S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 26 of 36 27 to force her to have illicit intercourse with him. He is further alleged to have raped the victim. The accused Dharmender is alleged to have conspired with the accused Ramesh @ Ravi to facilitate kidnapping of the victim P.
31. The first issue, which arises for consideration of the court is, whether the victim P was less than 18 years of age, when she is alleged to have been enticed and kidnapped by the accused persons. In order to prove that victim was a minor, less than 18 years of age, at the time of the commission of offence, the prosecution has examined PW14 Sh. S.S. Dahiya, Vice Principal of the school, who produced the record from the school, wherein the victim child P was admitted in 6th class on the basis of SLC Ex. PW14/B and mark sheet Ex. PW14/C issued by MC Primary School, wherein, the date of birth of the child/victim P was mentioned as 12.10.1995. He also produced the original admission register and proved the relevant entry pertaining to victim as Ex. PW14/D and the certificate of attendance given by Sh. N.D. Yadav, then Principal of the school as Ex. PW14/E. He further stated that as per the attendance register of class 8th,in which the victim was studying at the time of incident, the child remained absent from the school for whole day on 31.08.2010. He proved the copy of the relevant entry of attendance register as Ex. PW14/A.
32. The prosecution has also examined Sh. Mukesh Kumar, record S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 27 of 36 28 clerk from MCD. He stated that as per the record, the date of birth of child P was 12.10.1995 and that the entry with regard to her date of birth was made in the MCD record on basis of the order passed by Sh. Sukhbir Singh, Executive Magistrate, Saraswati Vihar, which was produced in the office of PW8 on 23.07.2009 along with birth report form filled in and submitted by Smt. Sunita, mother of the child. He proved the copy of the order of SDM as Ex. PW8/A and the birth report form as Ex. PW8/B. During his crossexamination, the PW8 deposed that the order of the SDM was not received directly in their office and the concerned person, whose date of birth was to be entered in the record, produced it along with birth report form as and when he/she desired entry of date of birth to be made in the record of MCD.
33. The prosecution has also examined Sh. Satbir, father of victim P and Smt. Sunita, mother of the victim as PW1 and PW12, respectively, however, none of these witnesses have deposed anything about the date of birth of their daughter P or having applied before the concerned SDM for issuance of necessary directions for entry of date of birth of victim P in the school record. Similarly, victim P has also not given her date of birth in her deposition as PW7.
34. In the present case, the record from the first attended school i.e. the MC primary school, wherein the victim had taken admission has not been S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 28 of 36 29 produced before the court. Only record of sixth class was produced by PW14. From the testimony of PW14, which has been reproduced at length hereinabove, it is apparent that the parents of the victim P had neither gone to the school for her admission nor had they submitted any admission form or birth certificate etc. of victim at that time. The school of PW14 appears to have mechanically entered the date of birth and other particulars of victim P, in their record on basis of some documents i.e. SLC Ex. PW14/B and mark sheet Ex. PW14/C, received from primary school. It is however, noteworthy that the particulars of the school of victim P were not furnished to the investigating officer by the parents of victim P as is evident from the crossexamination of PW1, who has stated that the IO had himself obtained the age proof of victim P. Further, the record produced by PW14 was never put either to PW1 Sh. Satbir or PW14 Smt. Sunita, i.e. the parents of the victim to verify the genuineness, thereof. In these circumstances, a doubt is created as to the correctness of the date of birth of the victim P mentioned in the school record.
35. Learned Addl. PP has relied upon the record produced by PW8 Sh. Mukesh Kumar, from the MCD office, wherein the date of birth of the victim is mentioned as 12.10.1995 to contended that the school record is corroborated by MCD Birth certificate. However, the contention made by learned Addl. PP cannot be sustained since the entry in the MCD record was made only on 23.07.2009, whereas the victim P was admitted in S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 29 of 36 30 school of PW14 on 01.04.2008, thus, the entry in the MCD record is subsequent to the admission of victim P in the school and cannot be made basis for corroboration of date of birth of victim, which finds mentioned in the school record. Since no reliable basis of entry of date of birth of victim P in the record produced by PW14, could be established by the prosecution, the same cannot be relied upon to draw a conclusion that the date of birth of victim was 12.10.1995 and that she was aged about 15 years at the time of the incident. I am supported in this view by the judgment of Birdi Mal Singhavi vs. Anand Purohit, 1988 Supp. SCC 601, wherein it has been held that no evidentiary value can be given to Date of Birth entry in absence of material on which entry is made. In view of the aforesaid discussion, I am of the opinion that the prosecution has failed to prove that the victim P was a minor less than 18 years of age as on the date of commission of offence,
36. The next issue, which arises for consideration is whether the accused Ramesh @ Ravi had kidnapped the prosecutrix from the lawful guardianship of her parents on 31.08.2010 with intention to force her and/or seduce her to have illicit intercourse with him and further committed rape upon her.
37. In this regard, perusal of the testimonies of the prosecution S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 30 of 36 31 witnesses shows that there are material contradictions in their testimonies. The PW1 Satbir, father of the prosecutrix stated that prosecutrix and the accused were studying in the same school, but the prosecutrix/PW7 denied for the same. Even the conduct and behaviour of PW7/prosecutrix is very strange. As per the version of PW7, she met accused Ramesh @ Ravi on the way to school and he continued to follow her despite her refusal talk to him, but surprisingly, she did not raise alarm, even though public persons present there. The prosecutrix also did not seek help of the school chowkidar or public persons, who were available on the way from the school to the house of the sister of the accused. The victim has stated during her crossexamination that the accused Ramesh had caught hold of her and was literally dragging her. If it was so, then there is every possibility that some public persons may have tried to intervene and inquire as to why, the accused was dragging the victim with him in this manner, but it is not so in the present case and there is a doubt, if accused took victim P with him by forcibly dragging her along with him. Further, no effort was made by victim P to raise alarm, while she was being taken to bus stand (bus addah) by accused persons. Even on the bus stand, the prosecutrix did not raise alarm and also did not seek help from the fellow passengers. Further after reaching the village also, she did not tell villagers that the accused Ramesh @ Ravi and Dharmender had brought her there forcibly.
S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 31 of 36 32
38. Further the PW7 proseuctrix P, in her statement u/s 164 Cr.P.C, stated that when she was leaving village, with accused Ramesh @ Ravi, she had met one woman, who told her that the person, who had brought her (victim) to village was trying to trap her and that they should be leave village immediately, whereas she did not say any such things, in her statement u/s 161 Cr.P.C or her testimony before the court as PW7. The victim P has also made improvements in her testimony as PW7 as in her hand written statement, PW7/X, she has stated that accused Ramesh had enticed her by telling her that he wanted to marry her, whereas she has not deposed so before the court.
39. As regards accused Dharmender, in Ex. PW7/A (handwritten statement of victim P), the PW7 has specifically stated that accused Dharmender, Jija of Ramesh, met her at the village when she reached there with accused Ramesh @ Ravi and that accused Dharmender had not enticed her, whereas subsequently in her examinationinchief, she said that accused Dharmender had met her at the house of sister of accused Ramesh @ Ravi, being jija of the accused. During cross examination, PW7 victim P made further improvement and stated that accused Dharmender met her in the gali outside his house. It is noteworthy that the handwritten statement Ex. PW7/X of the prosecutrix was signed by Preeti, bhabhi of the victim, but said bhabhi has not been produced as a witness before the court.
S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 32 of 36 33
40. Further, the prosecutrix was allegedly recovered from the house of one Somvir and the accused Ramesh @ Ravi is also alleged to have been apprehended from the house of said Somvir, but surprisingly, Somvir, though cited as a witness, was not produced for examination before the court by the prosecution.
41. Ld. Counsel for accused Dharmender has contended that Dharmender was already present in village and when victim and accused Ramesh @ Ravi reached there and that he scolded them and also informed the parents of victim as well as father of the accused and it is pursuant to information given by accused Dharmender that the father of the victim, father of the accused and Delhi police official reached the village. Since, the father of the accused also had gone with the raiding team of police, the version given by accused Dharmender appears probable.
42. Though victim claims that she was forced to go with the accused persons, admittedly, none of the accused persons was armed with any weapon. The victim P, despite having ample opportunity to raise alarm and escape, made no such effort. It rather appears that victim P, who was a major, being above 18 years of age at the time of incident (as observed hereinabove), had taken a conscious decision to go with the accused S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 33 of 36 34 Ramesh without accused Ramesh or Dharmender having forced her or enticed her to arrive at the said decision in any manner. In similar circumstances, In para 8 of judgment titled as Bunty vs. State (G.N.C.T.) of Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011, it was held by the Hon'ble Delhi High Court that : "8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had travelled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...."
43. In this regard, it would relevant to refer to the case titled as " S. Varadarajan Vs. State of Madras (reported as AIR 1965 SC 942)", wherein while distinguishing between " taking" and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India that : " There is a distinction between " taking"
and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361. Where the minor S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 34 of 36 35 leaves her father's protection knowing and having capacity to know the full import of what she is doing , voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian."
44. In the present case also, the element of 'taking away' or 'enticement' is found to be lacking. In view of the material on record, it appears that prosecutrix was willing and consenting party and it seems that everything has happened with her sweet will. This is also reflected from the fact that though, in the FIR, the father of victim and the victim in her own statement stated that she was in school uniform, when she was taken by the accused and the said uniform was seized at the time of her medical examination, the case property produced before the court comprised of a suit instead of school uniform. Though, victim stated that she had stated that the doctor had seized her school uniform, by mistake she could not give any explanation, as to where her school uniform was and how she was found wearing a different dress, which was later seized by doctor, than the school uniform in which she had left her house. The victim also tried to conceal the fact that she and accused Ramesh were studying in the same school, though the testimony of PW1, Sh. Satbir, father of the victim and respective school certificates of the victim and the accused are indicative of the fact that the accused Ramesh @ Ravi and victim were studying together in the same school. In these S.C. No. 23/12 : State vs. Ramesh @ Ravi : Page 35 of 36 36 circumstances, the factum of kidnapping of prosecutrix does not stand proved.
45. The nutshell of foregoing discussion is that from the testimony of the victim child P as well as other material witnesses examined by it, the prosecution has miserably failed to prove that accused Ramesh @ Ravi had kidnapped victim child P, with intention to compel her to marry him and to force / seduce her to have illicit intercourse with him or that he had committed rape upon her or accused Dharmender ever helped or conspired with accused Ramesh @ Ravi in kidnapping of victim P. Accordingly, I acquit accused persons Ramesh @ Ravi and Dharmender of the charged offence by giving them benefit of doubt.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 17.01.2015) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi.
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