Delhi District Court
State vs Umesh on 15 April, 2009
: 1 :
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE04 (NORTH) : DELHI
SC No.41/08
FIR No. 63/03
U/s 363/366/506II/376/323 IPC
PS : Model town
State Versus Umesh
S/o Majnu
R/o Gaon Narayanpur,
Distt. Mainpuri, U.P.
J U D G M E N T :
1. The accused was charged with and has faced trial for having kidnapped a girl (the prosecutrix) aged 14/15 years with the intention to compel her for marry and then committed rape upon her and also after beating her extended threats to kill her and thus, committed offences punishable u/Sec. 363/376/506/323 IPC.
2. Factual matrix: The above mentioned case was registered on the complaint of Smt. Sharda w/o Sh. Prem Pal R/o C41, Gautam Colony, Narela, Delhi. In the said complaint dated 04.02.2003, the complainant Smt. Sharda had alleged that she and her minor daughter (the prosecutrix) aged 14/15 years were doing household work in the Kothies at Derawal State Vs. Umesh Page No. 1 of pages 33 : 2 : Nagar. On 25.01.2003 she had come along with her daughter from their house for work and at 12.30 p.m., after finishing her work she was going back to her house. Her daughter also used to meet her at bus stand Derawal Nagar after finishing her work but her daughter did not come on that day, for which she made search and having failed to locate her, she went back to her house and informed her husband. Till the date of lodging complaint, she and her husband both tried to locate her in the village as well as with relatives but could not found her. Her neighbour Umesh, who had been residing on rent was also missing from the same day. She had suspicion that Umesh had kidnapped her minor daughter. She prayed for searching of her daughter and action against the alleged kidnapper. On her above complaint, the above case was initially registered U/s 363 IPC and the investigation was initiated. During the course of investigation, prosecutrix was recovered on 22.02.2003 and the accused was also arrested on the same day. The statement of prosecutrix u/Sec. 161 Cr.P.C. was recorded and her medical examination was got conducted. Thereafter, she was produced before the Ld. MM/Delhi and her statement U/s 164 Cr. P. C was recorded on 25.02.2003. The exhibits were collected and sent to FSL for State Vs. Umesh Page No. 2 of pages 33 : 3 : examination. After completion of investigation, challan was filed in the court in which u/s. 376/506/323 IPC were also added. Since, the alleged offences were exclusively triable by the court of Sessions, so the case was committed to this Court after complying the provisions of Section 207 Cr. P. C.
3. After hearing arguments, a formal charge U/s 363/366/ 506 II/376/323 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
4. Evidence: In support of its case, prosecution has examined as many as 18 witnesses.
In order to complete the chain of evidence, Ld. Addl. PP for the State apart from the material witnesses also examined formal witnesses as follows: FORMAL WITNESSES: PW 4 Ct. Govind Ram testified that on 27.2.2003, he was posted as a Duty Constable at HR Hospital where accused was brought for medical check up and he got him medically examined. After medical examination, the doctor had handed over a parcel containing under State Vs. Umesh Page No. 3 of pages 33 : 4 : wear of accused, a blood sample and a sample seal which he handed over to the IO, who seized it vide memo Ex.PW4/A. He further testified that on 25.2.2003, the prosecutrix was medically examined and her blood sample with a sample seal was handed over to him by the doctor, which he gave to the IO who seized the same vide memo Ex.PW 4/B. PW 5 Ct. Madan Mohan testified that on 31.3.2003 he took five exhibits vide road certificate No. 249/21/03 from the MHC(M) to FSL Malviya Nagar and deposited the same there. Thereafter, he handed over the copy of Road Certificate to the MHC (M). He claimed that as long as the exhibits remained in his custody nobody had tampered with the same.
PW 6 Ct. Dalip Kumar joined the investigation on 27.2.2003 with IO and on that day they brought the accused from the lock up in the court of Ld. MM and after taking permission of the Ld. MM, they took the accused to Hindu Rao Hospital for his medical examination. The doctor then gave one parcel containing underwear of the accused and another parcel of his blood samples. Both were sealed with the seal of HRH and a sample seal was also given to the IO, who seized all the articles vide memo Ex.PW4/A and then they returned to the PS and State Vs. Umesh Page No. 4 of pages 33 : 5 : deposited the sealed parcels in the maalkhana.
PW7 ASI Sant Vilas testified that he was on emergency duty at PS Model Town on 04.2.2003 when at about 3.00 pm, one lady Sharda came at the PS and he recorded her statement Ex.PW2/A and made endorsement on Ex.PW7/A and got the FIR registered. Thereafter, he tried to trace the prosecutrix as well as the accused. On 22.2.2003, he received an information that one boy and a girl were sitting at bus stand Azadpur. He alongwith the complainant Sharda went there and then at her instance both the accused and the prosecutrix were apprehended at Azadpur bus stand. He confirmed that the accused was arrested vide memo Ex.PW7/B and his personal search was conducted vide memo Ex.PW7/C. Thereafter, he handed over the accused and the prosecutrix to SI Chaman Singh for further investigation.
During cross examination he deposed that he received the secret information at about 8.15 a.m. to which he informed the SHO orally and then left for the bus stand, Azadpur, where Sharda met him near bus stand, Azadpur. He denied the suggestion that the prosecutrix and accused were brought by the maternal uncle of prosecutrix at P.S. State Vs. Umesh Page No. 5 of pages 33 : 6 : PW8 HC Krishan Kumar is the Duty Officer, who testified that on 4.2.2003, ASI Sant Vilas had given a rukka to him at 4.10 pm and on its basis, he recorded FIR Ex.PW8/A in this case and further investigation was handed over to ASI Sant Vilas. He further testified that on 25.2.2003, he was working as MHC (M). On that day WSI Pushp Lata had deposited two sealed parcels and two sample seals of HRH. He entered the said facts at entry No. 2057 and on 27.2.2003, WSI Pushp Lata had again deposited one sealed parcel containing one sample and sample seal against entry no. 2062. He further testified that on 28.3.2002, the samples were sent to FSL Malviya Nagar through ASI Abdul Aziz vide road certificate no. 246/21/03, but the same were not deposited there and were returned and redeposited in the maalkhana. On 31.3.2003, again these parcels were sent vide RC No. 249/21/03 through Ct. Madan Mohan to the FSL Malviya Nagar and were deposited there. The photocopies of the relevant entries were Ex.PW 8/ B and the photocopies of RC were Ex.PW 8/C and Ex.PW 8/D. PW11 Ct. Anil Kumar testified that on 25.2.2003 he produced the prosecutrix in the court of Ld. MM from Nari Niketan along with WSI Pushp Lata Tyagi. The Ld. MM had recorded statement u/Sec. 164 State Vs. Umesh Page No. 6 of pages 33 : 7 : Cr.P.C. of the prosecutrix. Thereafter, he went with prosecutrix at HR Hospital and got her medically examined and then after the medical examination, the doctor had given a slide swap duly sealed with the seal of HRH to the IO and that the duty constable of HRH had given one sealed parcel containing blood of the prosecutrix with a sample seal of HRH and the said case property was seized by the IO in his presence vide memo Ex.PW 11A and Ex.PW 4/B. PW 13 Retd. SI Chaman Singh testified that on 22.2.2003, he in compliance of the directions of SHO, sent the accused Umesh to the jail and prosecutrix was produced before the court and sent to Nari Niketan.
5. MEDICAL/EXPERT WITNESSES: PW9 Dr. R.K. Mehta testified that on 25.2.2003, the prosecutrix aged about 15 years female was brought to the hospital by SI Pushp Lata at 12.45 pm for medical examination and bonny age estimation. He examined the patient. On local examination, clinically there was no external injury present on her person. 5 ml blood of the patient was taken for grouping. It was sealed and handed over to the Duty Constable. Xray was advised for bonny age estimation. Patient State Vs. Umesh Page No. 7 of pages 33 : 8 : was referred to DMO, Gynae for detailed examination and for medico legal expert for opinion. He prepared MLC Ex.PW 9/A. PW10 Dr. P.K. Jain testified that he had examined the bone age Xray plates of Raj Kumari and had given a report regarding her age. As per the report, the bone age of prosecutrix was between 16 to 18 years and he proved his report in this regard as Ex.PW10/A. During cross examination, he stated that though he had given the age between 16/18 years but there could be variation of six months plus minus either side in that estimation.
PW12 Dr. M.K. Panigrahi, CMO HR Hospital had examined the accused on 10.3.2003, who was brought and identified by SI Pushp Lata with an alleged history of kidnapping a victim and committing rape upon her and sexual intercourse with her several times. On examination, he was of the view that there was nothing to suggest that Umesh was incapable of performing sexual intercourse. His report was Ex.PW12/A. PW14 Dr. Sangeeta Popli, MO, HR Hospital testified that she was deputed by MS HR Hospital to identify the handwriting and signatures of Dr. Sangeeta Choudhary and to depose in the court, as Dr. State Vs. Umesh Page No. 8 of pages 33 : 9 : Choudhary had left the hospital as her whereabouts were not known. She claimed that she had seen the said doctor writing and signing. On seeing MLC Ex.PW9/A, she proved the observation made by Dr. Choudhary on the back side of MLC regarding the patient and her signature at point A2. As per the report Ex.PW14/A, general condition of the patient was satisfactory and secondary sexual characters were well developed. On local examination, it was revealed as old torn hymen and vagina admitted two fingers easily. Uterus was normal size and fornices free. Slides were made from the vagina and handed over to SI Pushp Lata.
PW17 Dr. Deepak Goyal testified that on 27.02.2003, he was posted at HR Hospital as CMO on that day he examined the accused Umesh brought by Ct. Dalip Kumar with the alleged history of committing rape one month back. On examination his vital were found normal and no abnormality was abducted clinically and there was no evidence of any fresh external injury. He took his blood sample and under garments and sealed them and handed over the same to police officials. He proved his report Ex.PW17/A bearing his signature at point A1.
State Vs. Umesh Page No. 9 of pages 33 : 10 :
6. MATERIAL WITNESSES: PW 1 is the prosecutrix, who testified in her examinationin chief that she and her mother used to work in different kothies and used to meet at one place in the evening and from there they used to go back to their house. Around one year prior to the date of recording of her statement, she had completed her work around 12.30 pm and when she was going back to her house alone and reached at Azadpur, the accused Umesh met her and told her to accompany him on the point of knife. The accused threatened her that if she would raise the alarm, he would kill her with knife. So, she did not raise any alarm out of fear. Then the accused Umesh made her sit in an auto rickshaw and took her to Ghaziabad through bus from bus terminal. In Ghaziabad, accused took her in a room where his parents were staying and kept her there for 1520 days and there accused committed rape upon her on several time without her consent. Accused also married her by threatening her. Thereafter, her mausa came there in her search and brought her to Delhi. She was produced before the police and police recorded her statement. She was medically examined and her statement was also recorded by Magistrate. The prosecutrix also identified her thumb State Vs. Umesh Page No. 10 of pages 33 : 11 : impressions on her statement u/Sec. 164 Cr.P.C. which is Ex.PW 1/A. She confirmed that she was fourteen years of age when Umesh took her forcibly.
During cross examination, she claimed that the accused was not known to her prior to the incident, though he used to reside in her neighborhood. She denied the suggestion that she was having love affairs with the accused since 2002. She also denied the suggestion that on 20.01.2003, some disputes arose between accused and his family members and police was called or that the dispute was that she wanted to marry accused. She claimed that accused threatened her at the bus stand Derawal Nagar and took her away to Ghaziabad. She further claimed that she did not raise any alarm in the bus as she was under
fear. Thereafter, accused took her to the house of his relatives. He took her to a room in Mohalla and kept her there. The parents of the accused used to reside in an adjoining room. Accused did not allow her to go outside the room and himself used to go outside to purchase vegetables by locking the room and cook the same on his own. She also claimed that accused married her without her wishes. She denied that she had intercourse with the accused without her consent. She also denied that State Vs. Umesh Page No. 11 of pages 33 : 12 : her marriage was performed by a Pujari in the mandir and in the presence of relatives. She claimed that she did not raise any hue and cry in the mandir as she was under the influence of threats. She denied that accused had informed her parents after marriage and thereafter her uncle (mausa) came there. She testified that accused had brought her to Delhi so that she could meet her parents. She was confronted with the statement Ex.PW1/A at point A to A, wherein it is mentioned that prosecutrix was brought to Delhi by her mausa and mama, who came to Ghaziabad to bring her. She denied the suggestion that she was 18 years of age at the time of her marriage or that accused never threatened and compelled her for marriage or that accused had not committed rape upon her. She also denied the suggestion that her mausa and mama had brought her and accused to Delhi so that they could be accepted as a married couple but accused was arrested in Delhi at the instance of her parents.
PW 2 Smt. Sharda, mother of the prosecutrix, testified that she and her daughter used to work in kothis in Derawal Nagar. On 25.1.2003, she was working in a separate kothi whereas her daughter was working in another kothi and they used to go to house together as State Vs. Umesh Page No. 12 of pages 33 : 13 : they used to meet each other at the bus stop after finishing the work. She further deposed that about 12.30 pm her daughter used to meet in the kothi (where she used to work) for taking the lunch together. However on 25.1.2003 she did not come to take lunch. When her daughter did not reach at the appointed place and even she was not found her at the bus stop, she came back to her house and told her husband about missing of their daughter. Thereafter, they started searching their daughter in the village and in the houses of relatives. But they could not find her. Accused Umesh, who used to live in their neighbourhood was also missing from the said date, so they raised suspicion upon him and accordingly lodged a complaint Ex.PW2/A against him. Her daughter was found after about 15 days in the company of accused at Bus Stand Azadpur. She then, informed the police at PS Model Town and the accused was arrested. The witness further testified that her daughter was about 14 years at the time of incident.
During cross examination, she conceded that sometimes her daughter used to return to the house alone by train. She denied the suggestion that there was any love affair between accused and her State Vs. Umesh Page No. 13 of pages 33 : 14 : daughter. She conceded of having entering into a quarrel with accused Umesh on 20.01.2003 in which the police was also called, however, she denied the claim that quarrel took place because her daughter wanted to marry accused Umesh. She denied the suggestion that her daughter intended to marry accused Umesh and they were not agreed. The usual time of her and her daughter's coming back to home used to be 5.00 to 6.00 pm. She conceded that she never used to meet her daughter at bus stop at 12.30 pm as she used to come to her place for lunch. She admitted of having knowledge that her daughter went away with accused as the accused was not found in his room from that very day. She denied the suggestion that her daughter eloped with the accused out of her own consent. She denied that her daughter was 18 years of age when she was taken away by the accused. She admitted that her daughter had never made any complaint to her that accused ever misbehaved or threatened her prior to 25.01.2003. She further stated that when her brother and brotherinlaw were bringing the accused and her daughter from Ghaziabad, they returned back empty hand as accused took her daughter to somewhere else and on the next day she found her daughter and accused sitting at Bus Stop Azadpur at about State Vs. Umesh Page No. 14 of pages 33 : 15 : 12.30 pm. She denied the suggestion that her brother and brotherin law had brought her daughter and accused to her house and that her daughter had changed her statement at their instance.
PW 3 Sh. Prem Pal, the father of prosecutrix, testified that the prosecutrix was 14 years old at the time when the incident occurred. He confirmed that in the year 2003 his daughter along with his wife used to go to Derawal Nagar for working in the houses there. They used to leave the house early morning and used to return in the afternoon everyday. One day in the year 2003, his wife told him that their daughter had not returned. Thereafter, he tried to trace his daughter but she could not be found. Accused used to reside in front of his house and they noticed that he was also missing from the date his daughter was missing. Thereafter, his wife lodged a report at PS Model Town against the accused. After about 10 days, his daughter was recovered from the possession of accused at Bus Stand Azadpur. His wife was standing at Bus Stop Azadpur and she saw her daughter along with the accused coming from Lal Bagh. He further testified that he had given the date of birth certificate of his daughter to the IO. The said date of birth certificate was signed by Pardhan of their village. The said State Vs. Umesh Page No. 15 of pages 33 : 16 : certificate was seized by the IO vide memo Ex.PW 3/A. During cross examination he denied the suggestion that his daughter had a love affair with accused Umesh for the last 2/3 years or that once his daughter told him that she intends to marry with accused and there was quarrel with him and accused or even they called the police. He denied the suggestion that when her daughter was taken by the accused, she was more than 18 years of age or that the birth certificate marked A is forged and fabricated and is not based on proper record. He could not confirm as to whether his brotherinlaw had brought the accused and her daughter from Ghaziabad.
PW 15 is WSI Pushp Lata, who testified that on 24.2.2003, the investigation of this case was handed over to her. The prosecutrix was produced from Nari Niketan in the court of the Ld. MM, but her statement could not be recorded as Link MM was busy. Thereafter, on 25.2.2003, the girl was again produced in the court and her statement was recorded u/Sec.164 Cr.P.C. marked 15A. Application in this regard was Ex.PW 15/A. She also obtained the permission for getting the prosecutrix medically examined and she was taken to HR Hospital and was medically examined there. Her MLC Ex.PW9A was prepared. Dr. State Vs. Umesh Page No. 16 of pages 33 : 17 : Sangeeta Choudhary had given a swab slide of prosecutrix sealed with the seal of Hospital with sample seal, which she seized vide memo Ex.PW11/A. She further testified that duty constable Govind had given her a sealed blood sample along with sample seal, which she seized vide memo Ex.PW4/B. She further deposed that the girl was produced before the doctor for her bony age determination. She had obtained the opinion of the doctor, who had opined the girl to be of age between 1618 years. Thereafter, the girl was brought to court where her father applied for superdari of the girl and she was released on superdari to her father. She deposited the pullandas in the maalkhana and recorded the statement of Ct. Anil Kumar. She further testified that on 27.2.2003 she along with Ct. Dalip Kumar came to Tis Hazari court and obtained custody of accused Umesh. The accused was taken to the hospital for his medical examination; MLC of accused was prepared by Dr. Deepak Goel, duty constable and he had given him sealed blood sample of accused and sealed pullandas of his underwear along with sample seal, which he seized vide memo Ex.PW4/C; accused was sent to JC and pullandas were deposited in the maalkhana and statement of Ct. Dalip Kumar was recorded. She further testified that on 03.3.2003, father of State Vs. Umesh Page No. 17 of pages 33 : 18 : the prosecutrix had given proof of age of prosecutrix and as per the certificate, the prosecutrix was born in February 1989, which he seized vide memo Ex.PW3/A. She further deposed that on 5.3.2003, she recorded the statement of Rachpal and Rajinder Kumar and also made enquiries from prosecutrix. On 10.3.2003, accused was again taken to HR Hospital with the permission of court for obtaining expert opinion regarding his capability to perform intercourse. Accused was examined by Dr. M.K. Panigrahi, who gave his opinion Ex.PW12/A and accused was brought back to the court and sent to JC. On 31.3.2003, the pullandas were sent to FSL Malviya Nagar through Ct. Madan Mohan. He recorded the statements of the witnesses and after completing the investigation, filed the challan in the court.
During cross examination she stated that parents of the prosecutrix were present on the day when the statement of prosecutrix was recorded under Section 164 Cr. P. C. The parents of the prosecutrix were not present on 24.02.2003. She denied the suggestion that parents of the prosecutrix talked to her outside the court or that she was duly tutored before making the statement under Section 164 Cr. P. C. The date of birth certificate of the prosecutrix was produced by her father, State Vs. Umesh Page No. 18 of pages 33 : 19 : which was issued by Pradhan and since it was original, she did not verify it nor she recorded the statement of the issuing authority. She denied the suggestion that she deliberately did not verify the date of birth certificate to implicate the accused or that the date of birth certificate was false and fabricated. She also denied the suggestion that the false date of birth certificate was produced only to counter the ossification report in which the prosecutrix was reported to be major. She also confirmed that she had recorded the statement of PWs Rajender Kumar and Rachh Pal Ex.PW15/DA & Ex.PW15/DB in her handwriting. She denied the suggestion that prosecutrix was major and she went with the accused at her own will.
PW16 Ms. Swaran Kanta, Ld. ASJ proved the statement of prosecutrix recorded U/s 164 Cr. P. C Ex.PW1/A and the same was recorded vide application Ex.PW16/A. Certificate for correctness of the statement of the prosecutrix is Ex.PW16/B. One copy of the statement was given to the IO vide Ex.PW15/A.
7. PW18 Sh. Rajeshwar Singh in his testimony has deposed that he was elected as Pradhan of Village Goshpur, Bhupal Garhi in the year 2005 and prior to him Smt. Munni Devi was Pradhan of the village. He State Vs. Umesh Page No. 19 of pages 33 : 20 : claimed that he could identify the signatures of Smt. Munni Devi as he had seen her writing and signing. He conceded that as per record, date of birth of prosecutrix is 02.02.1989 and her name is mentioned at serial no.12 in the said register. Certified copy of the record of Bhopalgarhi, Etah, UP is Ex.PW18A. He also conceded that certificate Ex.PW18/B is in the handwriting of Smt. Munni Devi which bears her signature at point A. During cross examination, he conceded that he never worked with Smt. Munni Devi, however, he confirmed that he had seen Munni Devi writing and signing the documents during her tenure. He also conceded that document Ex.PW18/B does not bear the date of its execution. The information regarding the details of birth and death are not being forwarded to any SDM/Collector or any other authority. However, the same is sent to Block of the Gram Panchayat and the register remains with Gram Panchayat Secretary. He conceded that entries are made in the Parivar Register as per the report given by the concerned person in writing. He denied the suggestion that they make entries in Parivar Register without verifying the facts or that entry in the register has been manipulated and is false.
State Vs. Umesh Page No. 20 of pages 33 : 21 :
8. The statement of the accused was recorded U/s 313 Cr. P. C, wherein he while forcefully denying the evidence of the prosecution claimed innocence on the plea that he was falsely implicated in the case at the instance of the parents of the prosecutrix who were not agreeable to the relationship of the accused with the prosecutrix. Prosecutrix was in love with him and both of them wanted to marry with each other. The prosecutrix had deposed falsely under the pressure of her parents. It is also claimed by him that the prosecutrix wanted to marry him at her own will. He also claimed that prosecutrix told him her age as 18 years. The marriage and the physical relations with the prosecutrix took place with her total consent. It is also claimed by him that the parents of the prosecutrix were knowing about their love affair at least two year prior to the alleged incident. It is also claimed by him that he alongwith the prosecutrix came back to Delhi only on the assurance of the uncles (Mausa or mama) of the prosecutrix that they will get them married at Delhi. The accused has however opted not to produce any witness in his defence.
9. I have carefully heard the rival submissions of both the sides. I have also perused the entire material placed on record. State Vs. Umesh Page No. 21 of pages 33 : 22 :
10. In order to prove its case against the accused U/s 366 IPC and U/s 376 IPC, the prosecution was required to establish the following:
(i).that the prosecutrix was the minor at the time of alleged occurrence/incident,
(ii).the accused had kidnapped the prosecutrix with intend that she might by compel and knowing it to be likely that she would be compelled to marry him against her will,
(iii).the accused had sexual intercourse with the prosecutrix and the said act was done under circumstances falling under any of the six clauses mentioned in Section 375 IPC, which are as under:
(a). against her will,
(b). without her consent,
(c). with her consent which has been obtained by putting her or any person in whom she is interested in fear of death or of hurt,
(d). with her consent when the accused knows that he is not her husband, and that her consent has been given because she believes that he is another man to whom she is or believes her to be lawfully married,
(e). with her consent when at the time of giving consent due to unsoundness of mind or intoxication etc. she was unable to understand State Vs. Umesh Page No. 22 of pages 33 : 23 : the nature and consequences of that to which she gives consent,
(f). with or without her consent when she is below 16 years of age.
It is the case of the prosecution that the accused had kidnapped the prosecutrix, who was a minor girl of aged about 14 years at the time of alleged incident, with an intention to marry her and he had done sexual intercourse with her without her consent by extending threat to kill her on the point of knife.
Per contra, as per the defence put forth on behalf of the accused, he has been falsely implicated in the case at the instance of the parents of the prosecutrix who were not agreeable to the relationship of the accused with the prosecutrix. The prosecutrix was not a minor at the time of alleged occurrence and the said fact has been corroborated by the medical evidence brought on record in the form of bone age X Ray Report of the prosecutrix whereby she was opined to be between the age of 1618 years. Secondly, prosecutrix was in love with him and both of them wanted to marry with each other and she had accompanied him out of her own will and consent and she had also established physical relationship with him on her own free will after marrying with State Vs. Umesh Page No. 23 of pages 33 : 24 : him. The prosecutrix had deposed falsely under the pressure of her parents, who were against their relationship. Prosecutrix wanted to marry him at her own will and she told her age to him as 18 years. The accused alongwith the prosecutrix came back to Delhi only on the assurance of the uncles (Mausa or mama) of the prosecutrix that they will get them married at Delhi.
According to Ld. Addl. PP for the State, the prosecution has successfully achieved its target of proving its case against the accused by completing the chain of evidence against him. Not only the prosecutrix (i.e. PW1) but her parents also have fully corroborated with the story of the prosecution. PW1 has clearly deposed that when she was going back to her house alone and reached at Azadpur, the accused met her and told her to accompany her on the point of knife. She was also threatened that in case she dare to raise any alarm, she would be killed. She was made to sit in a autorikshaw and then taken to Ghaziabad, where the accused kept her in a room for 1520 days and there he had committed rape upon her without her consent on several times. Accused had also married her by giving threats. She was brought back to Delhi by her mausa where police recorded her statement and State Vs. Umesh Page No. 24 of pages 33 : 25 : her medical examination was conducted and she had identified her thumb impressions on her statement Ex.PW1/A. During cross examination she clearly denied all the suggestions put before her to the effect either she had willingly accompanied the accused or she was having any relationship with the accused or she wanted to marry him or she had established the physical relationship with him with her consent. Further, PW2 & PW3, the parents of the prosecutrix have also supported the case of the prosecution. They clearly deposed that the prosecutrix was minor at the time of alleged incident and this fact has been proved by producing the Panchayat Certificate Ex.PW18/B. On knowing about the missing of their daughter, they contacted the police and raised doubt about the involvement of the accused and the prosecutrix was recovered from the possession of the accused at bus stand Azadpur. Although, it is true that as per the Bone Aged XRay Report, the age of the prosecutrix was between the age of 1618 years but there is always a margin of error of two years on either side. If margin of two years is given on the lower side then the age of prosecution comes to 14 years and this is in consonance of the age given in the documentary material produced by PW18. Hence, it is State Vs. Umesh Page No. 25 of pages 33 : 26 : established that the prosecutrix was a minor at the time of alleged offence. The prosecutrix has clearly and unambiguously testified that she was forcibly kidnapped at the point of knife by accused with the intent to marry her and she was subsequently raped by him without her consent. She has denied all the suggestions raised on behalf of accused to suggest that she was not minor and she had willingly eloped with accused and had made physical relation with the accused out of her own will. The medical evidence coupled with the official evidence has further strengthened the claim of prosecution.
On the other hand according to Ld. Defence Counsel, prosecutrix was not a minor, rather, she was a major and she was in love with the accused and she had gone with the accused out of her own will and the accused had intercourse with her with her consent and will. He stressed that Bone Age XRay Ex.PW10/A and the deposition of PW 10 Dr. P.K. Jain stated that the age of the prosecutrix was between 16 18 years at the time of incident, which shows that she was major at the time of incident. PW18 has admitted in his testimony that the Ex.PW18/B does not bear the date of its execution. He stated that the details of birth and death of inhabitants of the village are recorded in a State Vs. Umesh Page No. 26 of pages 33 : 27 : Parivar Register but the same is not forwarded to any SDM/Collector or any other authority and entries in the said register are made as per the report given by the concerned person in writing. PW15 SI Pusp Lata IO of the case admitted that she did not verify the date of birth certificate nor did she record the statement of the issuing authority. So the prosecution had miserably failed to prove that the prosecution was minor at the time of incident and instead the medical report shows that the prosecutrix was between 1618 years at the time of incident. If margin of two years given on higher side, age of prosecutrix can be above 18 years and benefit of doubt should go to the accused. Here he is placing reliance upon the judgment reported as 103 (2003) DLT 421. It is further asserted by Ld. Defence Counsel that it is an admitted fact that PW1 prosecutrix never chose to raise any hue, cry and alarm against the accused from the date of alleged kidnapping i.e. 25.01.2003 to 22.02.2003 when she was recovered despite having number of opportunities to do so, clearly shows that she had gone with the accused with her own free will, consent and without any force, pressure and undue influence on the part of the accused. Even there were no external injury marks on her private parts as disclosed in her medical State Vs. Umesh Page No. 27 of pages 33 : 28 : examination Ex.PW9/A as well as the depositions of PW9 Dr. R.K. Mehta and PW14 Dr. Sangeeta Popli. This clearly shows that she was under no threat from the accused and that she had intercourse with the accused with her own consent. Here he has placed reliance upon a judgment reported as 2002 (3) JCC 1663. He further stressed that PW 15 SI Pusp Lata i.e. IO of the case had recorded the statements of Sh. Rajender Kumar and Sh. Rachh Singh U/s 161 Cr. P. C which are Ex.PW15/DA and Ex.PW15/DB and had also cited them as prosecution witnesses in the charge sheet. In their respective statements u/s 161 Cr. P. C which are Ex.PW15/DA and Ex.PW15/DB, both Rajender Kumar and Rachh Pal Singh had stated that on 22.02.2003 they had found accused and prosecutrix at Bus Stop Ghaziabad. On enquiry accused and prosecutrix told them that they were waiting for a bus to reach Delhi and that they have got married and were residing at Ghaziabad (U.P.). On hearing this they assured both accused and prosecutrix that they will get them married and they should accompany them to their house. On their assurance accused and prosecutrix came alongwith them in the same bus upto Delhi. In her cross examination PW15 SI Pusp Lata (IO of the case) admitted that she had recorded the State Vs. Umesh Page No. 28 of pages 33 : 29 : statements of PWs Rajender Kumar and Rachh Pal in her own handwriting and she recorded the statement of these witnesses whatever told by them. Interestingly, the prosecution chose to drop both PWs Rajender Kumar and Rachh Pal from the array of witnesses as their statements were going against the prosecution story. This clearly shows that the prosecution had left her house and got married with the accused with her own consent and they both had come back to Delhi on the assurance of the relatives of the prosecutrix that their marriage would be accepted to the family of the prosecutrix but on reaching Delhi, the prosecutrix had got the accused implicated in the above false case at the instance and behest of her parents. Thus the accused is not guilty and he is entitled for an order of acquittal in his favour.
11. After giving due thoughts to the rival submissions of both the sides, I have come to the considered opinion that the prosecution has been failed in its mission of proving its case against the accused beyond the shadow of reasonable doubts. The testimony of prosecutrix does not inspire full confidence and the accused is entitled for giving of benefit of doubt.
Firstly, the claim of the prosecution based on the testimonies of State Vs. Umesh Page No. 29 of pages 33 : 30 : PW1, PW2 and PW3, coupled with the documents Ex.PW18/B and the statement of PW18, does not inspire full confidence in the light of the scientific evidence brought on record in the form of report Ex.PW10/A. The Bone Age XRay Ex.PW10/A and the deposition of PW10 Dr. P.K. Jain have suggested that the age of the prosecutrix was between 1618 years at the time of incident, which shows that she was major at the time of incident. On this point, it was held in Mohar Singh @ Pappu Vs. State 103 (2003) DLT 421 that if margin of two years given on higher side, age of prosecutrix can be above 18 years and benefit of doubt in such situation goes to accused.
Further, I find myself in agreement with the claim of Ld. Defence Counsel that it is an admitted fact that PW1 prosecutrix never chose to raise any hue, cry and alarm against the accused from the date of alleged kidnapping i.e. 25.01.2003 to 22.02.2003 when she was recovered despite having number of opportunities to do so, it clearly shows that she had gone with the accused with her own free will and she was a consenting party, who joined the accused and established physical relationship with him without any force, pressure and undue influence on the part of the accused. The fact that there was no external State Vs. Umesh Page No. 30 of pages 33 : 31 : injury marks on her private parts as disclosed in her medical examination Ex.PW9/A as well as the depositions of PW9 Dr. R.K. Mehta and PW14 Dr. Sangeeta Popli are also giving strength to the defence raised by the accused. Here I am fortified by the judgment titled as Devanand Vs. State, 2002 (3) JCC 1663.
Further PW1, the prosecutrix in her examinationinchief has stated that her Mausa came to Ghaziabad while searching her and brought her to Delhi. She had also stated in her statement u/s 164 Cr. P. C Ex.PW1/A that one day her Mausa and Mama came to Ghaziabad while searching her and brought her to Delhi. However, in her cross examination she denied that her Mausa had come to Ghaziabad, which was duly confronted with her statement Ex.PW1/A. PW2 Smt. Sharda, mother of prosecutrix, admitted in her cross examination that her brother and brother in law were bringing the accused and her daughter from Ghaziabad. PW15 SI Pusp Lata i.e. IO of the case had recorded the statements of Sh. Rajender Kumar and Sh. Rachh Singh U/s 161 Cr. P. C which are Ex.PW15/DA and Ex.PW15/DB and had also cited them as prosecution witnesses in the charge sheet. In their respective statements u/s 161 Cr. P. C which are Ex.PW15/DA and Ex.PW15/DB, State Vs. Umesh Page No. 31 of pages 33 : 32 : both Rajender Kumar and Rachh Pal Singh had stated that on 22.02.2003 they had found accused and prosecutrix at Bus Stop Ghaziabad. On enquiry accused and prosecutrix told them that they were waiting for a bus to reach Delhi and that they have got married and were residing at Ghaziabad (U.P.). On hearing this they assured both accused and prosecution that they will get them married and they should accompany them to their house. On their assurance accused and prosecutrix came alongwith them in the same bus upto Delhi. In her cross examination PW15 SI Pusp Lata (IO of the case) admitted that she had recorded the statements of PWs Rajender Kumar and Rachh Pal in her own handwriting and she recorded the statement of these witnesses whatever told by them. Interestingly, the prosecution chose to drop both PWs Rajender Kumar and Rachh Pal from the array of witnesses as their statements were going against the prosecution story. All these facts further clearly established the stand of the accused that prosecutrix had left her house and got married with the accused with her own consent and they both had come back to Delhi on the assurance of the relatives of the prosecutrix that their marriage would be accepted to the family of the prosecutrix but on reaching Delhi, the prosecutrix State Vs. Umesh Page No. 32 of pages 33 : 33 : had got the accused falsely implicated in this case at the instance and behest of her parents.
12. In the light of above, I have come to the conclusion that prosecution has been failed in its mission of proving its case against the accused beyond the shadow of reasonable doubts and as such accused is entitled for the benefit of doubt. Accordingly, he is acquitted of the charges framed against him. His Bail Bond stands discharged.
13. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR)
court today on 15.04.2009) ASJ04 (NORTH)/DELHI
State Vs. Umesh Page No. 33 of pages 33