Delhi District Court
Sc No: 433/17 State vs . Sanjay Singh on 27 January, 2018
SC No: 433/17 State Vs. Sanjay Singh
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-FAST TRACK
SOUTH-WEST, DWARKA, NEW DELHI
In the matter of:-
S. C. No. 433/17
FIR No. 182/12
Police Station BHD Nagar
Under Section 363/376 IPC
State
Versus
Sanjay Singh
S/o. Sh. Sohan Singh
R/o. H. No. B-26A, B-Block,
Sultan Garden, Nangloi Road,
New Delhi
......Accused
Date of institution 17.07.2017
Judgment reserved on 12.01.2018
Judgment Pronounced on 27.01.2018
Decision Acquitted
Judgment 1 of 22
SC No: 433/17 State Vs. Sanjay Singh
JUDGMENT
1. Accused is facing trial in the present case on allegations of kidnapping prosecutrix "A" aged around 16 years and committing her rape.
2. Initially FIR in question was registered u/s 363 IPC on the basis of missing complaint of father of prosecutrix alleging that her daughter/ prosecutrix came to Delhi and later on 07.08.2012 she boarded a bus for her native place but did not reach there. Complainant suspected that prosecutrix was kidnapped by accused.
3. Police searched prosecutrix through electronic and print media. ASI Suresh apprehended prosecutrix and accused from Dhansa Stop, Najafgarh. Prosecutrix was got medically examined and her statement was also got recorded u/s 164 Cr.P.C.
Judgment 2 of 22
SC No: 433/17 State Vs. Sanjay Singh
4. Accused was arrested. On the basis of statement of father of prosecutrix accused was charge-sheeted to face trial for the offence punishable u/s 363 IPC.
5. Charge for offence punishable u/s 363 IPC was framed against accused who pleaded not guilty and claimed trial. During course of trial, prosecutrix testified that accused committed rape upon her. Ld MM observing that deposition of prosecutrix constitutes that the accused has committed an offence u/s 376 IPC, committed present case to Sessions Court.
6. Charge for offence punishable under Section 363/376 IPC was framed against accused. Accused pleaded not guilty and claimed trial.
7. Prosecution examined 6 witnesses.
Judgment 3 of 22
SC No: 433/17 State Vs. Sanjay Singh
PW Name of witness Nature of Documents proved
witness
1 Urmila Mother of Deposed that her son and
accused prosecutrix together went
from her house.
2 MS Father of Supported prosecution case as
prosecutrix to his daughter going with
accused. Proved missing
complaint lodged by him as
Ex PW2/A.
3 A Prosecutrix Supported prosecution case
by deposing that accused
forcibly took her to Nagpur,
accused maltreated her and
also forcibly established
physical relations with her.
Prosecutrix denied that her
statement was recorded u/s.
164 Cr. P.C as Ex PW3/A.
4 Vijay Singh School Record Proved date of birth of
prosecutrix as 28.06.1996 as
per her school record Ex.
PW4/A & B.
5 ASI Radha Krishan Police Recorded statement of
complainant, prepared rukka
as Ex. PW5/A, got accused
medically examined and
obtained his blood sample
vide memo Ex. PW5/B,got
deposited exhibits with FSL
vide Ex. PW5/C & D and
obtained FSL Result as
Ex F-1.
Judgment 4 of 22
SC No: 433/17 State Vs. Sanjay Singh
6 SI Suresh Kumar Investigating Proved arrest & personal
officer search of accused vide memo
Ex PW6/D & E, proved the
seizure of exhibits of
prosecutrix as per memo Ex.
PW6/E, Got recorded
statement of prosecutrix
u/s 164 Cr.P.C.
8. Accused in his statement admitted recording of FIR in question, statement of prosecutrix recorded u/s 164 Cr.P.C, medical examination of prosecutrix and his own medical examination. In view of statement of accused, witnesses to prove aforesaid documents were dropped.
9. In statement recorded u/s 313 Cr.P.C, accused stated that prosecutrix fell in love with him and pressurized him to take her along with him. At her instance, they went together to Nagpur where they stayed together in a rented accommodation. Prosecutrix left her house voluntarily and when she came back to her house, prosecutrix was pressurized by her parents to depose against him.
Judgment 5 of 22
SC No: 433/17 State Vs. Sanjay Singh
10. It has been contended on behalf of accused that the prosecutrix voluntarily left her home and she did not make any attempt to return to her house during her stay with accused. It is submitted that there is no evidence to indicate that accused either enticed, kidnapped or established forcible relations with her. Thus, accused has not committed any offence and is entitled to be acquitted.
11. Per-contra, Ld. Addl. PP submits that prosecutrix in her deposition stated that accused enticed her and also raped her. It is thus submitted that testimony of prosecutrix which is reliable and trustworthy establishes guilt of accused and in these facts accused is liable to be convicted.
12. I have given thoughtful consideration to the arguments advanced and perused the material on record.
Judgment 6 of 22
SC No: 433/17 State Vs. Sanjay Singh
13. Age of the prosecutrix: Before dwelling upon the incident of kidnapping or sexual assault, let us find out what was age of prosecutrix at time of incident. Prosecution has relied upon the school record of the prosecutrix as Ex. PW4/A & B as per which the date of birth of prosecutrix is mentioned as 28.06.1996.
14. Date of birth of prosecutrix is not disputed by the defence. Nonetheless, except for Ex. PW4/A there is no other document on record to controvert date of birth of prosecutrix. In view of the mandate given under Juvenile Justice (Care and Protection of Children) Act, 2015, age of juvenile (in present case, prosecutrix) as per her first attended School record is taken to be true. School record Ex. PW4/A & B goes to show that date of birth of prosecutrix is 28.06.1996 and as such on the date of incident (07.08.2012) prosecutrix was about 16 years 2 months old. Thus, it has to concluded that prosecutrix did not attain majority on the date she left her house.
Judgment 7 of 22
SC No: 433/17 State Vs. Sanjay Singh
15. Testimony of prosecutrix: Prior to deposition of prosecutrix her statement Ex PW5/A was recorded u/s 164 Cr.P.C . It's English translation reads as under:
"On 07.08.2012 I went to Nagpur. Two months before I came to my bua's house in Delhi. On 07.08.2012, I left for my village in Himachal Pradesh with Sanjay but I went to Nagpur. In Nagpur we are residing in a colony in front of railway station. We both are residing voluntarily. We are residing together for three months. I did not marry because my age is less. She is not my real bua and is cousin of my father. I often used to visit her. I and Sanjay love each other and for this reason we decided to ran away. In Nagpur we stay in a rented house. We told landlord that we are brother and sister. Our parents have not given permission to marry as such we ran away.
Q. Why you went to Nagpur?
Ans. When we reached station then the said
train was about to leave. If we would have waited then we could be apprehended and for this reason we boarded train to Nagpur.
Sanjay was working in Insurance. He withdrew Rs. 5,000/- from the ATM at railway station. After 10-12 days of reaching Nagpur, Sanjay started to work in a hotel.
Judgment 8 of 22
SC No: 433/17 State Vs. Sanjay Singh
No talks took between our families. One day when we opened the phone then our family members started calling us. They called us deceitfully by saying that my father is unwell and has to be operated. Me and Sanjay came on 20.10.2012, Saturday to our bua's house. From there my parents, bua and fufa on 21.10.2012 Sunday took us to police station. We were kept there for entire night. In the morning my statement was recorded and now I have been brought to the Court.
Till today me and Sanjay did not get marry. I will marry him after completing 18 years then I will stay with Sanjay. As of now I am ready to go with my parents."
16. Prosecutrix in her examination-in-chief has supported the prosecution version and has testified as under:
"On I know accused Sanjay Singh (present in the Court and correctly identified by the witness) as son of my maternal uncle.
On 07.08.2012, I went to Nagpur by train alongwith accused Sanjay. I left my aunt Urmial Devi's house alongwith Sanjay by bus for my house, but Sanjay took me to Nagpur by train. Sanjay took me forcibly to Nagpur. Sanjay took one rented accommodation in Nagpur and we lived there. We lived in Nagpur for about 1.5 months and Sanjay started working there. Sanjay forced himself physically upon me against my will many times. I tried to call my parents but the phone always used to remain with accused Sanjay and he never gave the phone to me. Sanjay had imprisoned me inside the rented accommodation.
Judgment 9 of 22
SC No: 433/17 State Vs. Sanjay Singh
During that period Sanjay hit me with fist and legs. After 1.5 months, I somehow got the mobile phone and call my parents. After that, Sanjay also called his mother and told her that both of us are coming back home. When we reached Sanjay's house, Sanjay's sister namely Reena slapped me on my face. After that, my parents came at Sanjay's house and started talking to both of us. After that, they took us to PS and police officials enquired from me in the PS. Police got my medical examination and other internal examinations conducted in the hospital and I was told that all the test are found normal. After that my parents took me to our house and I started living with them. After 3 months, I developed pain in my abdomen and my stomach started coming out. After medical check up, we came to know that I was about 3 months pregnant. We did not tell this fact to anyone and went to Solan, Himachal Pradesh at my uncle's house and got aborted the fetus there. Thereafter, we called Sanjay's elder brother namely Bittoo and told him that he has said lie to us about the medical examination. After that, Bittoo started giving explanation and told that we had got the medical examination done and everything was normal at that time. We asked to give expenses of abortion from Bittoo ie. elder brother of accused Sanjay, on that he told us that they will not give any expenses as it was not Sanjay's mistake and I was the culprit in it. I resided with my uncle in Solan, Himachal Pradesh and my father also came there and started residing with us. My father got me married after 1.5 years of the above mentioned incident.
Police did not record my statement in the police station. I did not give any statement u/s 164 CrPC to the Magistrate in Dwarka Courts. ......"
Judgment 10 of 22
SC No: 433/17 State Vs. Sanjay Singh
17. From the testimony of the prosecutrix it is evident that prosecutrix admits that she stayed with accused for two months and during her entire stay she made no effort to return to her parents. Prosecutrix was cross-examined at length by the Ld. Defence Counsel. Version of prosecutrix on relevant aspects of the matter reads as under:-
a) About her relationship with accused:
On 07.08.2012 I went to Nagpur. Two months before I came to my bua's house in Delhi. ...... She is not my real bua and is cousin of my father. I often used to visit her. I and Sanjay love each other and for this reason we decided to ran away. (statement recorded U/s 164 Cr.P.C) I know accused Sanjay Singh .... as son of my maternal uncle. ( examination-in-chief)
b) About her going with the accused:
On 07.08.2012, I left for my village in Himachal Pradesh with Sanjay but I went to Nagpur. In Nagpur we are residing in a colony in front of railway station. We both are residing voluntarily. (statement recorded U/s 164 Cr.P.C) Judgment 11 of 22 SC No: 433/17 State Vs. Sanjay Singh On 07.08.2012, I went to Nagpur by train alongwith accused Sanjay. I left my aunt Urmial Devi's house alongwith Sanjay by bus for my house, but Sanjay took me to Nagpur by train. Sanjay took me forcibly to Nagpur. Sanjay took one rented accommodation in Nagpur and we lived there. (examination-in-chief) In her cross-examination prosecutrix deposed:
.....In 7 August 2012, I left with accused at about 7 am from the house of accused. Accused took me to railway station. At railway station accused took two tickets for Nagpur. Within 2-3 hours of reaching station, we boarded train. We remained at platform for about 1 -1 ½ hours. Accused alone went to buy tickets and I was sitting alone at railway station. I did not try to go from there as I thought accused was taking me to my home at Mandi, Himachal Pradesh.
There is no train destined to Mandi nor there is any railway station. We reached Nagpur after about 2-3 days.
d) Place where prosecutrix stayed:
In Nagpur we stay in a rented house. We told landlord that we are brother and sister. Our parents have not given permission to marry as such we ran away. (statement recorded U/s 164 Cr.P.C) Sanjay took one rented accommodation in Nagpur and we lived there. We lived in Nagpur for about 1.5 months and Sanjay started working there.
(examination-in-chief)
Judgment 12 of 22
SC No: 433/17 State Vs. Sanjay Singh
I do not know where we stayed at Nagpur in a rented accommodation. Perhaps I stayed there for about 1 ½ years with accused. ......... We were residing in a single room house. The toilet was outside the room.(cross- examination)
e) About job of accused and her effort to leave:
I tried to call my parents but the phone always used to remain with accused Sanjay and he never gave the phone to me. Sanjay had imprisoned me inside the rented accommodation. During that period Sanjay hit me with fist and legs. After 1.5 months, I somehow got the mobile phone and call my parents. (examination-in-chief) Cross-examination:
I do not know where accused was working at Nagpur. He used to leave for his job at about 7 am and came back by 9-10 pm. Accused used to cook meals for us. I used to wash my own clothes. I never used to come outside the house as accused used to go after bolting the main door from outside. Accused never used to take me with him. I do not know as to whether accused was working in a hotel or not. We were residing in a single room house. The toilet was outside the room. It is correct that I never tried to escape that place despite knowing that accused will be away from house for more than 14 hours.
Judgment 13 of 22
SC No: 433/17 State Vs. Sanjay Singh
f) About Sexual Assault:
Sanjay forced himself physically upon me against my will many times........ After 3 months, I developed pain in my abdomen and my stomach started coming out. After medical check up, we came to know that I was about 3 months pregnant. (examination-in-chief)
18. Prosecutrix in all her versions mentions that accused is her cousin and she went with accused on 07.08.2012. In her testimony prosecutrix testified that she left her aunt's house alongwith Sanjay by bus for her house but he took her forcibly to Nagpur by train.
19. Prosecutrix though deposed that took her with him to Nagpur forcibly but during all the duration of her travel from Delhi to Nagpur prosecutrix did not raise any alarm nor made any effort to return back. From her testimony, it is clear that she traveled with accused by bus and train but at no point she protested the act of accused of taking her with him. During course Judgment 14 of 22 SC No: 433/17 State Vs. Sanjay Singh of her cross-examination prosecutrix deposed that they remained at platform for about 1 -1 ½ hours. From railway station accused took two tickets for Nagpur. When accused went to buy tickets, she remain seated at railway station. Prosecutrix admits that no train goes to Mandi nor there is any railway station. From her testimony it can be easily inferred that prosecutrix was fully aware where she was going with accused and where was their destination.
20. Testimony of prosecutrix shows that she was well aware that no train goes to her native place that is Mandi, Himachal Pradesh nor there is any Railway Station there, even then prosecutrix went with accused to Railway Station. As stated above at no point of time prosecutrix made any effort to return back even after becoming aware that accused bought two Tickets for Nagpur. She traveled with accused in bus and train but she never raised any alarm anywhere to indicate that she was taken by accused against her consent.
Judgment 15 of 22
SC No: 433/17 State Vs. Sanjay Singh
21. It is not the case where accused could have confined prosecutrix or kept her under lock & key for more than a month.
Prosecutrix categorically deposed that accused used to leave for his job at about 7 am and come back by 9-10 pm. Prosecutrix admits that she never tried to escape that place despite knowing that accused will be away from house for more than 14 hours. Despite being alone in house at no point of time prosecutrix made an effort to leave the company of accused. Neither she ever complained about acts of the accused to any of her neighbors. This shows that prosecutrix was residing with the accused willingly and consensually.
22. There is no reason why she could not have made a complaint to the family, police, friends, relatives others with whom she came in contact with. The fact that she choose to remain silent only shows that she herself was in the company of the accused with her consent.
Judgment 16 of 22
SC No: 433/17 State Vs. Sanjay Singh
23. Prosecutrix though deposed that accused forced himself physically upon her against her will many times and after 3 months, after medical check up, she came to know that she was about 3 months pregnant. She went to Solan, Himachal Pradesh at her uncle's house and got aborted the fetus there. Thereafter, they called elder brother of accused and asked to give expenses of abortion but he refused to give any expenses by saying that it was not mistake of accused and prosecutrix was the culprit in it.
24. However, there is no evidence on record to substantiate allegations in respect of pregnancy of prosecutrix. No evidence has been brought on record to prove that either prosecutrix got pregnant or her pregnancy was terminated. Medical examination of prosecutrix does not indicate any trauma or indication of sexual assault on her. It is matter of record that during her entire stay with accused prosecutrix never made any complaint to anybody nor she approached police with any complaint despite having an opportunity to do so.
Judgment 17 of 22
SC No: 433/17 State Vs. Sanjay Singh
25. Though prosecutrix denied during her examination- in-chief that her statement Ex PW3/A was recorded but the fact remains that prosecutrix was cross-examined by Ld Addl.PP for State regarding recording of her statement and later on during her cross-examination prosecutrix deposed that her parents accompanied to Court when her statement Ex. PW3/A was recorded before Ld. MM. Nonetheless, in her statement Ex PW3/A (recorded U/s 164 Cr.P.C) prosecutrix did not allege her sexual assault rather stated that she did not get marry accused and would marry him after completing 18 years.
26. Hon'ble High Court of Delhi has been pleased to render an authoritative pronouncement on 14.08.2015 in Criminal Appeal No. 325/2013 titled as Vijay Kumar Vs. State of NCT of Delhi wherein a girl aged about 15 years of age had gone along with the accused to Bhatinda Punjab and remained there for 89 days where physical relations between them were established on several Judgment 18 of 22 SC No: 433/17 State Vs. Sanjay Singh occasions. In the said case the Ld. Trial Judge had convicted the boy for offence punishable U/S 363/366/376 IPC, however in the appeal filed in the matter the Hon'ble High Court duly considered the conduct of the girl and came to conclusion that the girl was of the age of discretion, she had gone along with the accused without any kind of protest, she had not raised alarm at any point of time at any place despite there being an opportunity for the same. As far as the medical evidence in said case is concerned the Hon'ble High Court duly considered medical evidence of prosecutrix showing her hymen to be found torn and allegations that boy established physical relations with her in Bhatinda and found the same to be consensual.
27. Hon'ble High Court placed reliance upon law laid down in Shyam and Anr Vs. State of Maharashtra AIR 1995 SC 2169 to hold that the girl was of the age of discretion. Paragraphs of aforesaid judgment relevant for facts of present case are reproduced as under:
Judgment 19 of 22
SC No: 433/17 State Vs. Sanjay Singh
" xxx In her statement in Court, the prosecutrix has put blame on the 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 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 Judgment 20 of 22 SC No: 433/17 State Vs. Sanjay Singh against the appellants/accused under Section 366 I.P.C would thus fail. Accordingly, the appellants deserve acquittal. The appeal is, therefore, allowed acquitting the appellants. Xxx"
28. If ratio of aforesaid judgment is applied to facts and circumstances of present case then it would be apparent that prosecutrix has attained age of discretion and willfully went with accused. Prosecutrix during course of cross-examination deposed that she got married in March 2013 after attaining majority. There was hardly difference of 5 months of her marriage and her stay with accused. Moreover, at the time of her medical examination no physical trauma was noted on her by the Doctor. From all her statements it is evident that she did not make any complaint against the accused during her entire stay period with accused. Therefore, ratio of the aforesaid judgment applies to present case as well. Hon'ble High Court of Delhi in the aforesaid case has been pleased to set aside conviction of the accused. On the basis of the aforesaid ratio laid down in the case, accused cannot be held guilty.
Judgment 21 of 22
SC No: 433/17 State Vs. Sanjay Singh
29. Conclusion: From aforesaid discussions, it is evident that prosecution has failed to prove charges against accused. Accordingly, accused stands acquitted. Bail bond of accused stands canceled. His surety stands discharged. Accused is directed to furnish a personal and surety bond in sum of Rs. 10,000/- each under provisions of Section 437-A Cr.P.C with surety in the like amount which shall remain in operation for period of six months.
File be consigned to record room.
Announced in the open court on 27th day of January, 2018.
Digitally
signed by GAUTAM MANAN
GAUTAM ASJ-SFTC: SOUTH-WEST
GAUTAM MANAN
DWARKA:DELHI
MANAN Date:
2018.01.29
16:11:11
+0530
Judgment 22 of 22