Delhi District Court
State vs Santosh @ Ashutosh on 19 July, 2011
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
SC No.60/10
FIR No.389/07
U/s 363/366/376 IPC
PS Mandir Marg
State
Vs.
Santosh @ Ashutosh S/o Madan Parsad
Village New Atwarpur
PS Parsa Bazar, District Patna
Bihar ......Accused
Challan filed on : 28.01.2008
Received by Fast Track Court on:01.11.2010
Reserved for Order on : 07.07.2011
Judgment delivered on : 19.07.2011
JUDGMENT
Briefly stated the facts of the prosecution case are that on 15.11.2007 Rambaran Gupta came to PS and got recorded his statement Ex.PW1/A wherein he has alleged that on 14.11.2007 his daughter Pooja aged about 15 years went to school at about 7.30 a.m but she did not return back to house from the school. He tried to search his daughter but State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 1 of 22 in vain. He came to know that one Santosh s/o Madan Prasad had taken her away after enticing her. He had already doubt on Santosh as he used to live in his neighbourhood and talks about marrying to his daughter. When he came to know about this, Santosh shifted to Sec.22, Noida. On this statement IO made his endorsement Ex.PW12/A and got the case registered. The investigation was conducted and accused was arrested from a village in Bihar and prosecutrix was recovered from him. After completion of investigation the challan was filed in the court.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 12.08.2008 and thereafter by fast track court on 01.11.2010.
3. The charge against the accused was framed u/s 363/366/376 IPC on 02.04.2009 by Sh. SK Sarvaria, Ld. ASJ to which the accused pleaded not guilty and claimed trial.
4. The prosecution in all has examined as many as 14 witnesses.
5. The evidence against the accused was put to him in his statements recorded u/s 313 Cr.P.C in which he has pleaded his innocence and deposed that he has been falsely implicated in this case. The accused has not opted to lead defence evidence. Thereafter the case was fixed for State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 2 of 22 final arguments.
6. I have heard Ld APP for the State as well as Ld. defence counsel and perused the testimonies of all the PWS and exhibited documents carefully.
7. PW1 Ram Baran Gupta is the complainant and father of the prosecutrix and he has stated that he lodged complaint Ex.PW1/A.
8. PW2 Radha Gupta is the mother of prosecutrix.
9. PW3 Pooja is the prosecutrix. She has stated that her statement was recorded which is Ex.PW3/A.
10. PW4 W/ASI Sushila is the FIR recorder. She produced the FIR register. The copy of FIR is Ex.PW4/A and her endorsement is Ex.PW4/B.
11. PW5 UN Mishra is the witness from school of prosecutrix and he has deposed that the date of birth of Pooja is 27.6.1992. The certificate issued by Principal is Ex.PW5/A.
12. PW6 Ct. Vinod has deposed that on 18.11.07 ASI Charandass and W/Ct Kanta brought Santosh and prosecutrix and thereafter Pooja State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 3 of 22 was taken to LHMC for medical examination. After medical examination six sealed parcels were handed over to ASI Charandas which were seized vide memo Ex.PW6/A.
13. PW7 Ct. Surenderjeet Singh has deposed that on 20.11.07 he took accused Santosh for medical examination. The semen sample was taken into possession vide memo Ex.PW7/A.
14. PW8 Dr. Rajesh Kumari has deposed that on 18.11.07 she examined Pooja aged about 16 years. She prepared the MLC which is Ex.PW8/A.
15. PW9 Dr. Deepika Razia has deposed that he worked with Dr. Neeraj Kanojia who had examined Ashutosh and prepared his MLC which is Ex.PW9/A.
16. PW10 Dr. Sumit has deposed that he had taken the sealed parcel from Malkhana and deposited in FSL, Rohini.
17. PW11 Sh Parveen Singh, Judge Small Cause Courts has deposed that on 19.11.07 he recorded the statement of prosecutrix u/s 164 Cr.PC. The statement is Ex.PW3/A.
18. PW12 ASI Charan Dass Nigah has deposed that on 15.11.07 State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 4 of 22 Ram Baran came to PS and got recorded his statement Ex.PW1/A. He made endorsement and got the case registered. On enquiry he came to know that Pooja was taken to Parsa Bazar, Patna. He alongwith Ct. Kanta and complainant went to Patna on 16.11.07 and made entry in PS Parsa Bazar. The copy is Ex PW12/B. The accused was apprehended from the house of his uncle and prosecutrix was got recovered from him. They were about to go to temple for solemnization of marriage. The arrest memo of accused is Ex.PW12/C and personal search memo is Ex.PW12/D. Two day transit remand was obtained vide Ex.PW12/E from CJM. Thereafter they were brought to Delhi and got medically examined. He got recorded the statement u/s 164 Cr.PC of prosecutrix. He moved an application to NP Girls Sr. Secondary School for getting the age certificate of prosecutrix and the same is Ex.PW5/A seized vide memo Ex.PW12/L. He sent the exhibits to FSL on 4.12.07.
19. PW13 HC Bhim Singh has deposed that he was posted as MHCM and he produced register no.19 showing entries with regard to deposit of case property in the malkhana.
20. PW14 W/Ct Kanta has deposed that she accompanied the IO to Patna.
21. In the overall analysis of the testimonies of all the witnesses it is revealed that PW1 Ram Baran is the complainant, PW3 Radha is the State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 5 of 22 mother of prosecutrix and PW3 Pooja is the prosecutrix. These three witnesses are the main star witnesses in this case and whole case of the prosecution depends on their testimonies. Infact they are the backbone of the prosecution case. In her testimony PW1 Ram Baran Gupta has stated that on 14.11.07 Pooja aged about 15 or 15 and half year, date of birth 27.6.92 went to school but did not return after school. He made effort to trace her. He raised suspicion on Santosh who was earlier residing near his house and was harassing Pooja by offering her for marriage. At that time he was residing in Noida. On 15.11.07 he lodge the complaint Ex.PW1/A. On 17.11.07 his daughter was rescued from the house of one Madan Lal who is father of accused. In cross examination he has stated that his marriage was solemnized in the year 1988. He has four children he has been living in Delhi with his wife since 1988. His first child was born in 1990. His daughter Pooja was born in the year 1992 in Jeetipur District Basti. He did not get registered the birth of his daughter Pooja. The school in which his daughter was studying i.e NP Sr. Secondary Girls School from class 6th to 12th. Before this his daughter was studying in Lal School. He got admission of his daughter on the basis of birth affidavit. He admitted that his daughter is now married and having one child. He denied that his daughter was taken by the accused with the permission of his wife.
22. PW2 Radha Gupta has stated that on 14.11.07 her daughter had gone to school but did not return . She has also stated that they raised State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 6 of 22 suspicion on Santosh as he was harassing Pooja by offering her for marriage. Her daughter made complaint to her. In cross examination she has stated that she does not remember the date of birth of her daughter. She made improvement in her statement that Pooja had gone to school at 7.30 a.m. She had not lodged report against the accused that he used to harass her daughter by offering her for marriage.
23. PW3 Pooja is the prosecutrix and she has stated that her date of birth is 27.6.92. On 14.11.07 at about 7.30 a.m she was going to school. Accused met her in the way. He was trying to talk with her. Accused asked her to accompany him to Noida. She refused. He under threat took her to Noida in a house and there he committed rape with her against her wish. Accused gave her juice to consume & thereafter she became semi unconscious and when she gained consciousness, she found herself in one house at Patna. On 16.11.07 Police alongwith her parents reached there and brought her to Delhi alongwith accused. She was medically examined. Her statement u/s 164 Cr.PC was recorded which is Ex.PW3/A. She identified her underwear Ex.P1. In cross examination she has stated that she has not brought the document to show that her date of birth was 27.6.92. Accused was residing at the distance of 810 houses from her house. She admitted that she stated the date of incident to Ld. MM as 13.11.07. She admitted that her younger brother was with her on that day. He was studying in 4th standard. She made improvement that accused tried to talk with her. She admitted that she has stated before the State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 7 of 22 Ld. MM that she asked accused as to why he is not talking with her. She denied the suggestion that she accompanied accused to Noida as she was in love with him. She made improvement that accused gave her juice due to which she became unconscious and thereafter she found her in Patna. She also made improvement in her statement that accused administered some stupefying substance forcefully. She admitted that her age was recorded as per her narration as 16 years on MLC. She admitted that there was crowd at Patna Railway Station. She has not raised any alarm at the station. She did not state to the driver of TSR that accused is forcefully taking her. She denied the suggestion that she wrote love letters to accused. She denied letter mark A having written to accused. She admitted that she was asked by the counsel to speak the truth but he has not asked her to give particular statement.
24. Considering the evidence available on file, the most important evidence to be looked into is of age of the prosecutrix at the time of her alleged kidnapping because her age plays a decisive role in relation to the charge framed in this case u/s 363/366/376 IPC. Sec.363 IPC contemplates Punishment for kidnapping. Sec.366 IPC contemplates - kidnapping, abducting or inducing woman to compel her for marriage etc. Ingredients of offence In relation to the charge u/s 366 IPC apart from the fact that girl was below 18 years of age, two ingredients further must be established (i) that she was kidnapped or abducted from the custody of her lawful guardian, and (ii) that she was kidnapped, or State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 8 of 22 abducted with the intention of compelling her to marry any person against her will or in order that she may be forced or seduced to illicit sexual intercourse. It was further necessary to find that they abducted the woman for any of the purposes mentioned in section 366 IPC. The purpose of abduction must be proved u/s 366 IPC. When the charge u/s 366 IPC is for kidnapping a minor girl to seduce her to sexual intercourse, the age of the prosecutrix is a very important factor. The girl being minor, the offence u/s 366 IPC is committed when she was seduced for the purpose of illicit intercourse. As far as section 376 IPC there should be material to establish that either the alleged marriage or intercourse has taken place without the consent of the girl, if she is above the age of 18 years or 16 years as the case may be. When it is not proved that prosecutrix was below 18 years of age then no offence of taking her away from the lawful guardianship of her guardian is established. However, the age of girl is 15 years and charge against the accused that he kidnapped the girl for the purpose that she would be seduced to sexual intercourse has to be proved. As far as section 376 IPC is concerned this section has now two sub sections, namely sub section (1) and sub section (2) and for the offence of rape committed by the accused as specified in sub section (1) is different from that provided under sub section (2) of section 376 IPC. Therefore, there is an essential difference between the offences under sub section (1) and those under sub section (1) of section 376 IPC. In a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence.
State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 9 of 22
25. So, in view of the definition of section 363, 366 IPC as well as Sec. 376 IPC, I have given my thoughtful consideration on the testimony of PW1 Ram Baran Gupta (father), PW2 Radhda Gupta(Mother) and PW3 Pooja (prosecutrix). As far as the age of prosecutrix Pooja PW3 is concerned, the prosecution has examined PW5 UN Mishra, Teacher from NP Girls Senior Secondary School, Gole Market, New Delhi. He has stated that he has brought the school record of student Pooja and as per record her date of birth is 27.6.92. Certificate in this respect issued by the Principal is Ex.Pw5/A. This entry was made on the basis of the transfer certificate submitted on behalf of the student. I have perused the said Ex.PW5/A. It is a handwritten certificate on letter head from Principal of the school stating date of birth as 27.6.1992. This certificate has not been supported by any document on the basis of which it has been issued. PW5 has stated that it was made on the basis of transfer certificate. But even the transfer certificate has not been placed with this Ex.PW5/A. Therefore Ex.PW5/A cannot be treated as authentic proof of age.
26. PW1 Ram Baran who is the father of the prosecution and PW2 Radha Gupta who is the mother of the prosecutrix have stated that the date of birth of their daughter is 27.6.92. PW3 has also stated her dated of birth as 27.6.92. In cross examination PW1 Ram Baran Gupta has stated that his marriage was solemnized in the year 1988. He has four State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 10 of 22 children. First son was born in the year 1990. His daughter Pooja was born in village Jeetiput. He did not get his daughter registered in his village. He admitted that he has no document which shows the birth of his daughter Pooja. His daughter was studying in NP Sr. Secondary Girls School which is from 6th to 12th class. Prior to this she was studying in Lal School situated in Gole Market. He got admission of his daughter in 1st class on the basis of affidavit. He got prepared the affidavit from Patiala House court. PW2 in examination in chief has stated that the date of birth of her daughter is 27.6.92 but in cross examination she has stated that she does not remember the date of birth of her daughter. No record of Lal School showing date of birth of prosecutrix has been produced. Secondly PW1 has admitted that he got admission on the basis of affidavit. It has not been proved as to on whose affidavit the prosecutrix got admission. The prosecution has also not tried to bring on record the alleged affidavit or examine its maker. In this case. I have also considered the MLC and statement u/s 164 Cr.PC. In the MLC the age has been stated to be 16 years and as per statement u/s 164 Cr.PC recorded by Ld.MM Sh Praveen Singh, the age of prosecutrix has been stated as 16 years 10 months. If date of birth as 27.6.92 as deposed by PW1 & 2 is taken into account, the age of prosecutrix comes to 15 years and 5 months as on the date of incident. It does not corroborate either with MLC or statement u/s 164 Cr.PC. So, the version of PW1 & 2 regarding age of the prosecution is also doubtful. In this case there is no conclusive proof regarding the age of the prosecutrix. I have given my thoughtful consideration on some State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 11 of 22 case law. In case Law Ashok Kumar Vs. State of Rajasthan, S.B. Criminal Appeal NO.721/76 it is stated in the head note that : 'Sec.363 & 366 - Abduction Love Letters written by girl to accused - Girl of easy virtue and her statement not inspiring confidence - Prosecution with holding production of document that could resolve inconsistency between T.C and Father's statement regarding age of girl - Medical opinion not certain that girl was below 18 years. Elopement in absence of parents of girl - Held, prosecution has failed to prove guilt beyond reasonable doubt'.
In case law Smt. Kamlesh & Anr Vs. State of UP & Ors., Criminal M.W.P No. 5667 of 2001 it is stated in head note that : 'Kidnapping - Article 226 of Constitution of India, Sec.154 and 156 of Cr.P.C, 1973 and Sec. 363 and 366 of IPC 1860 and sec.45 of Indian Evidence Act, 1872 - Petitioners married each other and got marriage registered before Registrar of Marriages (Conflicting Evidence about age of girl (age as per school leaving certificate is 15 years whereas certificate issued by Chief Medical Superintendent shows age as 15 years - duty of IO in case of such conflict to get petitioner examined by ossification test to ascertain her age collect other evidence such as horoscope, school leaving certificate and ocular version of parents - doctor certificate regarding age only opinion - held, evidence cannot be taken as conclusive evidence'.
It stated in case Law Mohar Singh @ Pappu & Ors. Vs. State Criminal Appeal NO.83 and 86 of 1999 that : 'Sec.363, 366, 376 - Kidnapping, abduction and gang rape - age of prosecutrix - evidence - doctor who examined prosecutrix and gave opinion about her bone age not examined - defence deprived of right of cross examining State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 12 of 22 him - date of birth as given in school certificate only approximate at the time of admission by illiterate father prosectrix not be said with certainty that she was below 18 years - Benefit of doubt goes to the accused - Prosecutrix taking money from home and roaming with accused for two days through populated areas of Delhi without making any alarm - Plea that she was forcefully taken fails - Accused acquitted'.
In case law Devanand Vs. The State of NCT of Delhi in Crl.A. 104/2002 it is stated that : 'Sec. 376 - Rape - Age of prosecutrix - School leaving certificate relied upon to prove that the age of the prosecutrix was below 16 years - School leaving certificate is totally contradicted by the medical evidence because an ossification test that was conducted the age was opined to be between 14 to 16.4 years with a variation of two years on either side - In the absence of any other reliable evidence and unreliable testimony pertaining to the age of the prosecutrix it cannot be termed that prosecution has proved that she was below 16 years of age at the relevant time'.
In case law MANU/DE/1199/2003 , CRLA 58/2002 titled as Rakesh Vs. State it is stated in head note : 'IPC 1860 - Sec. 363, 384, 506, 120B - Kidnapping, abducting or inducing woman to compel her marriage - Extortion - Prosecutrix consenting party - When reliable evidence in proof of date of birth is not forth coming, the accused will be entitled to benefit of doubt - Accused could not have been held guilty of offence u/s 363/366/506 IPC because as already observed, her conduct shows that she went with the appellant, got married and photographed with him of her own free will - Prosecution failed to bring State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 13 of 22 home the charges against the appellants beyond reasonable doubt - Appeal allowed'.
27. In view of the above observations of above case law relied and in consideration of the present facts and circumstances of the case, in the present case in hand the statements of father PW1 and mother PW2 of prosecutrix are not inconsistent with MLC and statement u/s 164 Cr.PC where prosecutrix herself might have told the age as 16 years 10 months while as per Ex.PW5/A it comes about 15 years 5 months. The recorded in the Ex.PW5/A is not based on any certificate of birth issued by the municipal corporation or panchayat. The IO should have got done the ossification test or collect other material from previous school of prosecutrix or from panchayat of the village of prosecutrix. But no such step has been taken. No horoscope or school leaving certificate of class 5th supported the ocular version of PW1&PW2. The prosecution has thus withheld the best evidence. The onus was on prosecution but it failed to discharge the same. Reliance is placed on Sunil Vs. State of Haryana, (2010) 1 SCC 742 wherein it was held that the failure to get the prosecutrix examined from the dental surgeon and the radiologist was a serious flaw in the prosecution version. It was held that the absence of primary evidence, reports of the dental surgeon and the radiologist would have helped the court to arrive at the conclusion regarding the age of the prosecutrix. Relying on State of Karnataka Vs. Sureshbabu Pukraj State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 14 of 22 Porral, AIR 1994 SC 966 it is contended that when the age is in doubt then the question of taking away the prosecutrix from her lawful guardianship does not arise. A love letter mark A has been placed on record. Though PW2 Pooja has denied having written to accused from the letter it can be made out that she was a fully grown up girl. Considering the statement u/s 164 Cr.PC of the prosecutrix she has deposed that her age was 16 years and 10 months. So, it can be safely held that prosecutrix was above 16 years and below 18 years of age on the alleged day of incident and she was a fully grown up girl who was able to understand ups and down of society. The prosecution thus, has not been able to prove by any cogent and convincing evidence that the prosecutrix was a minor at the time of incident.
28. PW3 Pooja has stated in her statement that on 14.11.07 at about 7.30 am she was going to school and accused met her on the way and trying to talk to her. Accused asked her to accompany him to Noida. She refused. He under threat took her to Noida in a house and there he committed rape with her against her wish. He gave her a juice to consume thereafter she became semi unconscious and when she gained consciousness, she found herself in one house at Patna. Thereafter police brought them to Delhi. The Prosecutrix accompanied the accused to Noida in a bus route no. 355. At that time no allegation has been made that she was given something to eat or that she became unconscious. In the bus a number of passengers used to travel. Even conductor and bus State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 15 of 22 driver who are public servant used to be available. But Prosecutrix did not tell anyone that accused is taking her forcibly. I have also considered her cross examination. It is revealed that she had made glaring improvement in her statement recorded before the court in relation to the statement recorded by the Ld. MM u/s 164 Cr.PC. It is necessary to reproduce the said statement u/s 164 Cr.PC.
Statement of Pooja d/o Ram Baran Gupta age 16 years 10 months r/o Lady Harding Staff Quarters, Block no. 112 Room no. 72.
On S.A. On 13.11.07 ko Mangalvar ke din subah 7.30 baje mai apne chhote bhai ke saath ghar se schooll ko nikli. Vo apne school ki taraf chala gaya aur main anpe school ki taraf ja rahi thi. To rashte mai mujhe Ashutosh mil gaya. Usne mujhse baat karna band kar rakha tha. Ata maine usse puchcha ki vo mujhse baat kyun nahin karta. Usne koi Jabab nahin diya aur kaha ki mere saath Noida chalogi ya nahi. Ek baar to maine mana kiya per phir yah sochkar ki kahin yah sada ke liye mujhse duur na chala jaye maine haa ker di. Uske baad humne Noida ke liye 355 number bas pakdi aur noida main uske kamre per pahunche. Uske baad humney gaaney waney sune. Uske baad usne meri murzi se mere saath sehvas(intercourse) kiya. Uske baad hum market gaye aur mere liye kapde aur chappal lekher aaye. Uske baad khana khakar aur nahakar shaam 6 baje hum wahan se Ghaziabad ke liye nikle. Ghaziabad se hum rail dwara Kanpur pahunche. Kanpur se bus dwara hum Allahabad gaye. Allahabad se rail dwarda hum Hazipur pahunche. Hazipur se auto ke dwara Patna pahunche. Wahan se uske ghar Aitwarpur pahunche. Hum uske ghar Budhwar subah char baje pahunche. Uske mummi papa so rahe the. Inki Mummi ne khusi dikhai lekin papa naraz hua. Uske baad main enki chachi ke char gai aur wahin rahi. Thursday ko subah hum mandir jaane ko taiyar ho rahe the ki police ne aakar hame pakad liya. Uska baad hame Delhi laya gaya. Delhi lakar hame thane main rakha gaya. Uske baad mere mata pita ko bulaya gaya. Mere mata pita ne mujhse kaha ki vo sub kuch bhool jayange State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 16 of 22 agar mai court mai vyan du ki Ashutosh mujhe jabran ya kuch nashili cheez khilakar saath le gaya tha. Mujhe sabhi police walo ne bhi yahi kehne ko kaha. Lekin main aisa nahi kar sakti kyonko jhooth bolne se use saaja ho sakti hai.' RO&AC (Praveen Singh) Signed as MM/ND (Pooja Gupta) 19.1.07
29. The above statement had been made by the prosecutrix when she and accused were brought to Delhi. The statement u/s 164 Cr.PC and statement recorded before the court are totally different. The prosecutrix has made glaring improvement in her statement recorded before the court from the statement recorded u/s 164 Cr.PC. In her statement recorded at the first instance she did not state that she was taken under threat to Noida. She has also stated in her statement recorded in the court that accused has committed rape upon her against her wish while in her statement u/s 164 Cr.PC she has stated that accused did the intercourse with her consent. The prosecutrix has changed her statement when recorded in the court. So, she cannot be treated as trustworthy and reliable witness. From the statement u/s 164 Cr.PC even the prosecution has stated that her parents asked her to give statement in the court that Ashutosh had taken her forcibly and had given her some poisonous substance. Police personnels have also stated to depose the same. From this version of Prosecutrix it is crystal clear that prosecutrix had eloped with accused with her own wish without any force and even the sexual State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 17 of 22 intercourse has also been done with the consent of the prosecutrix. In view of the evidence of prosecutrix PW3 Pooja, the case of the prosecution seems to be doubtful against the accused. I have also considered the testimonies of other witnesses.
30. PW12 ASI Charan Dass is the IO and he, on the statement of Ram Baran Ex.PW1/A recorded by him, got recorded the FIR. PW4 W/ASI Sushila recorded the FIR of the present case. The copy of FIR is Ex.PW4/A. He has further stated that accused alongwith prosecutrix were apprehended while they were ready to go to temple for solemnization of marriage. Pw14 W/Ct Kanta has also deposed about apprehension of accused and prosecutrix. PW12 has stated that he also examined the prosectrix Pooja who has also disclosed her that when she was going to her school on the way the accused met her and he has taken her to Noida first then to Patna for marriage. Even PW12 IO of this case has not stated that prosecutrix was taken forcibly by the accused. PW12 has further stated about taking transit remand and bringing the accused and prosecutrix to Delhi. He got recorded the statement u/s 164 Cr.PC. He sent the exhibits to FSL Rohini. PW10 Ct. Sumit took the case property to FSL Rohini. PW6Ct.Vinod, PW7 Ct. Surinderjeet Singh and PW9 Dr. Deepika are the formal witness. PW13 HC Bhim Singh is the formal witness who made entries regarding depositing of case property in malkhana. I have also perused the MLC of prosecutrix. The same has been prepared by Dr. Rajesh Kumari examined as PW8. In cross State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 18 of 22 examination she has admitted that as per vaginal examination there was no injury to the libia majora and libia minora. She admitted that when she examined Pooja there was no bleeding from her private parts. Neither she asked nor Pooja disclosed her whether she was sexually assaulted or not. Tearing of hymen may be possible by the internal injury other than sexual assault. If there is fresh injury and forcible assault then there is bleeding and bruise mark will also be present but in this case there is neither bleeding nor injury mark. She admitted that her examination does not confirm the victim was sexually assaulted. Considering the cross examination of PW8 Dr. Rajesh Kumari it is crystal clear that the examination done by Pw8 does not confirm that the victim was sexually assaulted. So, it is crystal clear that if the sexual act was performed by the accused, it was performed with the consent of the prosecutrix.
31. From perusal of the statement of the prosecutrix and letter mark A it is clear that the prosecutrix was moving freely with the accused Santosh @ Ashutosh everywhere. Though she states in deposition before the court that she forcibly taken to Noida however, there was no persistent threat and despite number of opportunities, she neither raised any alarm nor objected nor made an attempt to move out of the custody of Santosh. Even she did not tell anyone on way to Patna that she is being taken there contrary to her will. She did not disclosed as to what threat was given by accused. This fact brought out clearly fortify that there was no threat from the accused and prosecutrix had gone and stayed with State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 19 of 22 accused of her own wish. The conduct of prosecutrix moving freely shows consent which fact has been established from her statement made u/s 164 Cr.PC as well as letter written by her to accused. Reliance placed on S Varadarajan Vs. State of Madras, AIR 1965 Supreme Court 942 (V52 C 150). At this stage it would be appropriate to reproduce the observations of Hon'ble Supreme Court in case of Shayam & Ors. Vs. State of Maharashtra, 1995 Cri.L.J. 3974: In her statement in court, the prosecutrix has put blame on appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the so called 'taking', it does not seem that the prosecutrix was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts would be under check by both the appellants/ accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by 'taking' her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but, still she was in the age of discretion, sensible and aware of the intention of the accused Shyam, that he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam the Appellant on her own and in that sense that there was no 'taking' out of the guardianship of her mother. The culpability of neither Shyam, A1 nor that of Suresh, A2 in these circumstances, appears to us established. The charge against the appellant/accused u/s 366 IPC would thus fail. State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 20 of 22 Accordingly, the appellants deserve acquittal. The appeal is, therefore, allowed acquitting the appellants.'
32. In case Law 2010 (2) JCC 1337 Sonu Vs. State of Delhi it is stated in head notes that : 'Penal Code, 1860 - Sec. 376 - Prosecutrix being more than 16 years of age and having accompanied the appellant of her own free will and accord - She being a consenting party, ingredients of the offence of rape are not attracted - Accordingly appellant acquitted of the offnce u/s 376.' 'Penal Code, 1860, Sec. 363 - Prosecutrix having herself accompanied the appellant to his village and staying with him for about one week - It cannot be said that appellant had taken her away from the protection of her lawful guardian.' 'Penal Code 1860 - Sec. 366 - In the absence of any evidence to show that appellant had taken prosecutrix with him by using force or inducement - No offence is made out. '
33. In the present case in hand, from evidence it can be inferred that the prosecutrix was moving freely with the accused. She had accompanied the accused on her own free will. She is above 16 years of age. She is a fully grown up girl and she was in the age of discretion, sensible and aware of the intention of the accused. No step has been taken by her if accused was taking her forcibly out of the guardianship of her parents. She has clearly stated before the Ld.MM that sexual intercourse was done with her consent. The statement u/s 164 Cr.PC of the prosecutrix itself falsify the case of the prosecution against the present accused. It is well settled principle of law in AIR 2003 SC 3609, State State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 21 of 22 of Punjab Vs.Karnail Singh that : "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".
34. In view of my above discussions and facts and circumstances of the case, I am of the view that the prosecution has utterly failed in proving the guilt of the accused and the accused is entitled for the benefit of doubt. I therefore give the benefit of doubt to accused Santosh @ Ashutosh. He is acquitted from the charges levelled against him u/s 363/366/376 IPC. Accused is on bail in this case. His BB/SB are cancelled and surety is discharged. File be consigned to record room.
Announced in the open Court on 19.07.2011 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track CourtNew Delhi and South East District) NEW DELHI State Vs.Santosh @ Ashutosh FIR no.389/07 Page No. 22 of 22