Delhi District Court
State vs Mr.Sonu @ Parminder Son Of Mr. Inderjit ... on 9 January, 2013
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
State versus Mr.Sonu @ Parminder son of Mr. Inderjit Singh,
Resident of H.No. RZF-77, Nihal Vihar, Nangloi, Delhi.
First Information Report Number : 255/2010.
Police Station Nihal Vihar.
Under sections 363 and 376 of the Indian Penal Code.
Date of filing of the charge sheet before : 26.05.2011.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 08.06.2011.
In the Sessions Court
Date of transfer of the file to this Court : 04.01.2013.
ASJ (SFTC)-01, West, THC, Delhi.
Arguments concluded on : 09.01.2013.
Date of judgment : 09.01.2013.
Appearances: Mr.Anil Kumar, Additional Public Prosecutor for the State.
Accused has been produced from judicial custody.
Ms. Anju Dixit, Amicus Curiae for the accused.
Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar,
Under sections 363 and 376 of the Indian Penal Code.
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. Kidnapping and rape are dark realities in Indian society like in any other nation. 53 per cent of our children are sexually abused, according to a statistic from a survey done by the Government of India. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. (Reliance on the material on the internet). Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is a minor female child, as in the present case, who is Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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allegedly subjected to unwanted physical contact by a perverted male adult.
2. "Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.
PROSECUTION CASE
3. Mr. Sonu @ Parvinder, the accused, has been charge sheeted by Police Station Nihal Vihar, Delhi for the offence under sections 363 and 376 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 05.12.2010 sometime after 5:00 PM near RZF-80, Nihal Vihar, Delhi within the jurisdiction of Police Station Nihal Vihar, he kidnapped the prosecutrix (name withheld to protect her identity) who was Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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minor at that time from the lawful guardianship of her parents and further committed rape upon her at Jammu and Amirtsar between January, 2011 to March, 2011.
CHARGE SHEET AND COMMITTAL
4. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 26.05.2011 and after its committal, the case was assigned to the Court of the learned predecessor vide order dated 08.06.2011 of the learned Sessions Judge, Delhi. Further, the case has been transferred and assigned to this Court i.e. Additional Sessions Judge (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi for 04.01.2013 vide order bearing number 20/372-512/F-3(4)/ASJ/01/2013, dated-04.01.2013 of the learned District and Sessions Judge, Delhi.
CHARGE
5. After hearing arguments, charge for offence under sections 363 and 376 of the IPC was framed against the accused by the learned predecessor on 21.09.2011.
PROSECUTION EVIDENCE
6. In order to prove its case, the prosecution has examined as many as 15 witnesses. HC Subhash Chand, the Duty Officer who had recorded the formal FIR of the case is PW1; HC Ram Avtar, the MHC(M) is PW2; W/Ct. Pooja, who had taken the prosecutrix to Sanjay Gandhi Memorial Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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Hospital for medical examination, is PW3; the prosecutrix is PW4; Mr. Vilayati Singh, the father of the prosecutrix and the complainant of the case is PW5; Ct. Gautam, who had participated in the investigation of the present case and took the accused to Sanjay Gandhi Memorial hospital for medical examination, is PW6; Ms. Sharda Miglani, who had brought the school record of the prosecutrix to show her date of birth, is PW7; Mr. Rajiv Ranjan, who proved the call detail record of mobile number 9213948826 is PW8; Mr. Amarnath Singh, who brought the summoned record of mobile number 9781545918 is PW9; Ms. Shivali Sharma, the learned Metropolitan Magistrate who recorded the statement of prosecutrix under section 164 of the Criminal procedure Code (hereinafter referred to as the Cr.P.C.) is PW10; Ms. Babla, the mother of the prosecutrix is PW11; Dr. Parvinder Kaur, who had medically examined the prosecutrix, is PW12; Dr. Rajesh Dalal, who had medically examined the accused, is PW13; SI Mahender Singh, who is the first Investigating Officer of the case, is PW14; W/ASI Krishna, who is second Investigating Officer of the case, is PW15.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
7. In his statement under section 313 of the Cr.P.C., recorded on 03.01.2013, the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has been falsely implicated in this case. The prosecutrix had gone with him voluntarily and had married him with her free consent and she is a major. He further stated that he has not committed any offence. The keys of his house are in the possession of Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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the parents of prosecutrix. All his documents including his passport, insurance policy, ration card etc. were in the house and he had seen the ration card in the hand of Investigating Officer when he was arrested. The parents of prosecutrix have demanded Rs. 4 lacs to return his documents and keys of his house and they had also demanded that he transfer his house in their name for which he was not ready and due to this reason he has been falsely implicated in this case. Accused has preferred not to lead any evidence in his defence.
ARGUMENTS
8. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
9. The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offence under sections 363, 376 of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
10. The amicus curaie for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused on the record.
CASE OF THE PROSECUTION, ALLEGATIONS AND Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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DOCUMENTS
11. As per the allegations of the prosecution, especially the statement of the prosecutrix under section 164 of the Cr.P.C., the accused had kidnapped the prosecutrix on 05.12.2010 and had taken her to Jammu, Orissa and Amritsar where he had repeatedly raped her between January, 2011 to March, 2011.
12. The prosecution story unfolds with the lodging of DD No. 19 A dated 09.12.2010 (Ex.PW1/B) on the basis of information furnished by Mr. Vilayati Singh on which the FIR (Ex. PW1/A) was lodged. The certificate under section 65B of the Evidence Act (Ex.PW8/E) was issued. The investigation was marked to SI Mahender Singh. Father of the prosecutrix had informed that he suspected that Mr. Parvinder @ Sonu, the accused, had abducted his daughter. The relevant extracts of the school admission register (Ex. PW7/A) were obtained which show that the date of birth of the prosecutrix is 16.03.1995. Information was given to Television Channels, wireless message and hue and cry notice were issued. The prosecutrix was recovered vide recovery memo (Ex.PW14/A) and she was medically examined vide MLC (Ex.PW12/A) in Sanjay Gandhi memorial Hospital and exhibits pertaining to her were seized vide seizure memo (Ex.PW3/A and Ex.PW15/A). The accused was interrogated and formally arrested vide arrest memo (Ex.PW6/A) and his personal search was conducted vide personal search memo (Ex.PW6/B). He was medically examined vide MLC (Ex.PW13/A). The statement of the prosecutrix under section 164 of the Cr.P.C. was recorded (Ex. PW4/A) on moving of Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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application (Ex.PW10/A) by the Investigation Officer and a copy of the statement was obtained by the Investigation Officer on moving of application (Ex.PW10/B). Two sealed pullandas were deposited in the malkhana vide entry number 156 in register number 19 (Ex.PW2/A) and the same were sent to the FSL vide RC number 68/27/11 (Ex.PW2/B) and the acknowledgment of the FSL (Ex.PW2/C) was obtained. FSL reports were deposited in the Court. The detailed records of mobile phone number 9213948826 issued in the name of Mr.Inderjeet Singh were obtained- customer application form (Ex.PW8/A), ration card (Ex.PW8/B), call details record for the period w.e.f. 20.11.2010 to 15.12.2010 (Ex.PW8/C), Cell ID Chart with location (Ex.PW8/D) and certificate under section 65 Evidence Act (Ex.PW8/E). The detailed records of mobile phone number 9781545918 issued in the name of Mr.Jasbir Singh were obtained- customer application form (Ex.PW9/A) and electoral card (Ex.PW9/B). The call detail records had been destroyed and the request letter to the same effect (Ex.PW9/C). After the completion of the investigation, the challan was put to the Court for trial.
TESTIMONIES OF THE PROSECUTION WITNESSES
13. PW1, HC Subhash Chand, is the Duty officer who had recorded DD No.19A (Ex.PW1/B) regarding the missing report of the prosecutrix on the basis of which the FIR (Ex.PW1/A) was lodged.
14. PW2, HC Ram Avtar, is the Malkhana Moharrar. He has proved the relevant entries in register number 19 regarding the sending Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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deposit of two sealed envelops with the seal of SGM hospital along with two sample seals in malkhana vide entry number 156 (Ex. PW2/A) and deposit of the same to the FSL vide RC No. 68/21/11 in register number 21 (Ex.PW2/B) and the deposit of two sealed envelops with the seal of FSL alongwith the result of FSL in malkhana and result was handed to the Investigating Officer ASI Mahender Singh 06.09.2011.
15. PW3, W/Ct. Puja, has deposed that she along with the prosecutrix had gone to Sanjay Gandhi Memorial Hospital where the prosecutrix was medically examined and the doctor handed to her the fourteen sealed pullandas pertaining to the prosecutrix which were seized vide seizure memo (Ex. PW3/A).
16. PW4, the prosecutrix, has deposed that she was studying in the 5th class and used to play in the plot nearby along with other children of the locality including accused Sonu @ Parvinder, who was known to her. Accused had obtained the mobile number of her mother and her address from her and thereafter, he started calling her on the said mobile number prior to 05.12.2010. Accused told her that he loves her very much and he also insisted her for the same. Accused also promised her that he will marry her. On one occasion, her mother had heard the conversation going on between them on the phone and thereafter she gave beatings to her as well as to the accused. On the next day, accused had left for Amritsar, Punjab and her mother had destroyed her mobile phone due to which accused had not contacted her from Punjab. After some months, he came back to Delhi Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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and managed to trace out her landline number and thereafter started making calls to her. On 04.12.2010 in the evening, he had made a call to her and asked her to meet outside his house at about 5:00 PM but she did not meet him despite the fact that the accused was roaming outside her house. Thereafter, he again made a call and asked her to meet at 5:00 AM on 05.12.2010. On the next day at about 5:00 AM, she left her house leaving behind all her family members sleeping in the house to meet the accused outside her house. The accused allured her on the pretext that he will marry her and he took her to his sister's house at Jammu by bus via GTK Bye Pass, Delhi. The father of the accused had dropped them to GTK Bye Pass, Delhi in his car. While reaching Jammu, he refused to marry her and he kept her inside a separate room in the house of his sister. Accused had confined her there and had torn her wearing clothes and also gave beatings to her. Accused also forcibly removed her under garments and he also removed his clothes and under garments and forcibly committed rape on her against her wishes and without her consent in the room. When she tried to resist, he also caused teeth bite injury on her and he also caused some nail injuries with his hands on her person. When she again insisted accused to marry her and telling him that such things are not always good prior to the marriage, then accused promised her to marry her in Orissa. Accused kept her in the house at Jammu for about five days and during this period, he had committed rape on her many times and thereafter he took her to Orissa by train where he kept her in a house belonging to one of the relatives of his sister for about ten days. She asked the accused there also in Orissa to marry her but accused refused for the same and he again Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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committed rape upon her in the house many times and he also gave beatings to her there also. When all the pocket money was finished, then accused took her to his parents' house in Amritsar, Punjab and he kept here there for about 2-3 months. She was confined by the mother of accused in the house in Amritsar for about 4-5 days and she had not even provided food to her. During the stay at Amritsar, the accused had committed rape upon her many times against her wishes and without her consent there also, he refused to marry her despite her repeated requests. The father of the accused also refused for her marriage with the accused. She managed to make a phone call at Delhi to her mother from the mobile phone of the mother of accused. When this fact came in the knowledge of accused, he gave beatings to her for the same. Thereafter, the family of accused got frightened about the police action and thereafter accused brought her to Delhi and thereafter they got down from the bus at GTK By Pass bus stop. As she had already informed her mother from Amritsar from the mobile phone of one neighbour of accused regarding the fact that accused is going to leave her in Delhi, they found police along with her mother already present at GTK By Pass bus stop. Police had apprehended the accused in her presence immediately when they got down from the said bus there. Police had recorded her statement in this case. She was taken to Sanjay Gandhi Memorial Hospital on 27.03.2011 at about 7:55 PM where she was medically examined. Accused was also taken to the same hospital by the police at the same and he was also medically examined there. Her statement (Ex.PW4/A) was also recorded by the learned Metropolitan Magistrate.
Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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17. PW5, Mr. Vilayati Singh, the father of the prosecutrix, has deposed that on 05.12.2010, he was sleeping in the night and when he wake up in the morning, he found that his daughter (the prosecutrix) aged around 15 years was missing. He searched for her at his own level but she could not be traced. He came to know from his neighbours that his daughter had been enticed by one Sonu @ Parvinder. He also tried to contact the family members of accused. They also ran away from their house. Thereafter, he went to police station on 09.12.2010 and lodged a complaint at police station Nihal Vihar and the present FIR was registered. Thereafter, he went out of Delhi in regard to his business. After 2/3 months his family members were informed by the accused himself and his wife alongwith police went to Karnal By Pass to get her daughter as per the instructions of the accused Sonu. The accused was arrested there and his daughter was brought back to his house.
18. PW6, Ct. Gautam, is a witness of investigation and has deposed that on 27.03.2011 he along with Investigating Officer ASI Mahender Singh and mother of prosecutrix went to the Mukarba Chowk. At about 4:00 PM, the mother of prosecutrix pointed towards the girl who was getting down from the bus. The accused was also getting down from the same bus along with prosecutrix. The prosecutrix was examined by the Investigating Officer at the spot in the presence of her mother. The accused was arrested vide arrest memo (Ex. PW6/A) and his personal search was conducted vide personal search memo (Ex. PW6/B). On the direction of Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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the Investigating Officer, he had taken the accused to Sanjay Gandhi Memorial Hospital for his medical examination and had collected the pullanda and handed over the same to the Investigating Officer. The accused was put up in the lock up and the prosecutrix was admitted in the Sanjay Gandhi Memorial hospital.
19. PW7, Ms. Sharda Miglani, has produced and proved the relevant extract of the school register (Ex. PW7/A) which show that the date of birth of the prosecutrix is 16.03.1995.
20. PW8, Mr. Rajiv Ranjan, has produced the customer application form of mobile number 9213948826 issued in the name of Mr. Inderjeet Singh son of Mr. Sohan Singh resident of RZF-77, Nihal Vihar, Nangloi, Delhi. Attested copy of the same is (Ex. PW8/A) and copy of ration card (Ex. PW8/B). He has also produced the call details record (Ex. PW8/C) of the said mobile phone w.e.f. 20.11.2010 to 15.12.2010 and call ID chart (Ex. PW8/D) with location of the aforesaid mobile during that period.
21 . PW9, Mr. Amarnath, has produced the customer application form of mobile number 9781545918 issued in the name of Mr. Jasbir Singh son of Mr. Jarnail Singh resident of H. No. 2713, Abadi Patti, Balon, Sultan Wind, Tehsil and District Amritsar, Punjab. The attested copy of same is (Ex. PW9/A) and the copy of election card is (Ex. PW9/B). The call detail record of the aforesaid mobile phone cannot be produced as the same has been destroyed after one year in the server and the request letter to the same Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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effect was issued. (Ex. PW9/C).
22. PW10, Ms. Shivali Sharma, the learned Metropolitan Magistrate, who had recorded the statement of prosecutrix under section 164 Cr.P.C. (Ex. PW4/A) on the application of Investigating Officer (Ex. PW10/A) and the copy of the statement was provided to him on his application (Ex. PW10/B).
23. PW11, Ms. Babla, the mother of the prosecutrix has deposed that she has three daughters and two sons and the prosecutrix is her eldest daughter aged about 15 ½ years. She was not studying at the time of incident. Accused Sonu @ Parvinder used to reside in neighbourhood and used to tease and harass her daughter. She had asked him not to do so but he did not stop. She had given him beating also. Thereafter, he left from there for about 4-5 months. He returned and again started teasing her daughter. On 05.12.2010, when she woke up in the early morning, she found her daughter missing from the house. She along with her husband searched her daughter in the locality but could not find her. Thereafter, her husband went to the police station and lodged a report in the police station. After 3-4 months of her missing, she received a call from her daughter and she was weeping. She asked her whereabouts but she could not tell. Thereafter, accused talked with her and informed that she should not report the matter to the police and he will leave her daughter at Karnal Bye Pass. She immediately went to the police station and informed about the this conversation to the police. Her daughter was in the custody of accused and Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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police apprehended him at her instance and got her daughter recovered. Her daughter as well as the accused were brought to the police station. Police recorded her statement on 27.03.2011. Police took her daughter for medical examination and she along with her husband accompanied her. On enquiry, her daughter told her that accused had confined her at different places and forcibly raped her and also had given beatings to her.
24. PW12, Dr. Parvinder Kaur, had medically examined the prosecutrix and has proved the MLC of the prosecutrix (Ex.PW12/A).
25. PW13, Dr. Rajesh Dalal, had medically examined the accused and has proved the MLC of the accused (PW13/A).
26. PW14, SI Mahender Singh, is the First Investigation Officer of the case. He has deposed that on 27.09.2010 the investigation of the present case was marked to him. He got issued wireless message, hue and cry notice and also got relayed the message of missing of prosecutrix through television channels. The mother of the prosecutrix had given him the mobile number of prosecutrix and he made efforts to trace out the location and found that the same was located at Jammu. He made efforts to trace out the prosecutrix as well as accused but could not found them. On 25.03.2011 he along with Ct. Gautam and parents of the prosecutrix accompanied to the Amritsar in search of prosecutrix as the sister of accused was residing there. The police party conducted a raid there but could not found them. Thereafter, they returned back to Delhi. On 27.03.2011 the mother of Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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prosecutrix informed the police that she had received a telephonic message of her daughter that she is reaching Delhi. The said message was conveyed to the SHO. SHO marked the case file to W/ASI Krishna for investigation. On the same day, he accompanied W/ASI Krishna, the mother of prosecutrix and Ct. Gautam to Karnal Bypass at Mukarba Chowk, Delhi. They started searching the buses coming from Punjab. At about 5:30 PM, the mother of the prosecutrix pointed out towards her daughter as well as accused who were coming after getting down from the bus. He along with Ct. Gautam nabbed the accused Sonu @ Parvinder. W/ASI Krishna interrogated the prosecutrix and recorded her statement. The recovery memo of prosecutrix (Ex. PW14/A) was prepared. Accused was also interrogated and arrested. His personal search was also conducted. Accused as well as prosecutrix were taken to Sanjay Gandhi Memorial hospital where both were got medically examined.
27. PW15, W/ASI Krishna, is the Second Investigation Officer of the case and has deposed on the same lines as PW14. She further deposed that after discharge from the hospital, the statement of prosecutrix under section 164 of the Cr.P.C was got recorded from the concerned Court on 18.04.2011. The sealed pullandas were sent to FSL, Rohini. As per the date of birth record of the prosecutrix, she was minor at the time of incident as her date of birth was 16.03.1995.
DISCUSSION AND ANALYSIS
28. The question is how to test the veracity of the prosecution story Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
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especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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confer benefit of doubt.
29. Under this sphere, I now proceed to test the submissions of both the sides.
30. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
DEFENCE OF THE ACCUSED
31. The accused has claimed in his defence that he has been falsely implicated in this case. In his statement under section 313 of the Cr.P.C., recorded on 03.01.2013, the accused has claimed that the prosecutrix had gone with him voluntarily and had married him with her free consent and she is a major. He further stated that he has not committed any offence. The keys of his house are in the possession of the parents of prosecutrix. All his documents including his passport, insurance policy, ration card etc. were in the house and he had seen the ration card in the hand of Investigating Officer when he was arrested. The parents of prosecutrix have demanded Rs. 4 lacs to return his documents and keys of his house and they had also demanded that he transfer his house in their name for which he was not Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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ready and due to this reason he has been falsely implicated in this case.
32. However, the accused has neither led any evidence in his defence to substantiate his claim nor even put any such suggestions to PWs 4, 5 and 11 i.e. the prosecutrix and her parents to prove his defence and these facts indicate that he is putting up a false defence. The accused has only attempted unsuccessfully to mislead the Court.
33. The accused has also failed to show any motive or malafide intention on the part of the prosecutrix and her parents for implicating him in a false case. The accused failed to assign any malafide motive to PW4 that she would get him falsely implicated in a rape case. The defence of the accused does not appear to be probable.
IDENTITY OF THE ACCUSED
34. There is no dispute regarding the identity of the accused and that he along with the prosecutrix were together w.e.f. 05.1.2.2010 till the date of apprehension i.e. 27.03.2011 when both were together.
AGE OF THE PROSECUTRIX
35. An important issue in dispute is the age of the prosecutrix. The prosecution has claimed her age to be about 15 years (as per the DD number 19A dated 09.12.2010 wherein her father made the complaint to the police) while the accused has claimed that she was above 18 years and was a major on the date of the alleged offence and they were together with the free Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
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consent of the prosecutrix.
36. PW4 has stated in her statement under section 164 of the Cr.P.C. that she is 15 ½ years old on the date of statement i.e. 18.04.2011 which makes her about 15 years old at the time of alleged incident. In her evidence before the Court, she has deposed that she is aged about 17 years on the date of evidence i.e. 17.05.2012 which makes her about 15 ½ years old at the time of alleged incident.
37. PW5, the father of the prosecutix, has deposed that she was aged about 15 years at the time of incident. Even in the FIR, he has mentioned her age as about 15 years.
38. PW11, the mother of the prosecutix, has deposed that she was aged about 15 years at the time of incident. Even in the FIR, he has mentioned her age as about 15 years.
39. PW7, the Principal of the school, has deposed that as per the school records (school admission register-Ex.PW7/A), the date of birth of the prosecutrix is 16.03.1995 which makes her age about 15 years and nine months at the time of alleged offence.
40. It is clear from the evidence of the witnesses of the prosecution that they do not have the birth certificate issued by the Municipal Authorities or the MCD. The parents of the prosecutrix have not even Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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deposed her date of birth.
41. It is also borne out of the record that the ossification test of the prosecutrix was not got conducted.
42. Now, the question arises, "As to whether the age as determined by scientific ossification test should be given preference to the oral age aspect of the prosecutrix?" While dealing with similar situation it was observed by Hon'ble Delhi High Court in a case reported as Brij Mohan v. State, 38 (1989) DLT 15, as under :-
"It is settled law that the absence of cogent evidence such as of birth entry, the determination of age scientifically i.e. by ossification test should be preferred to the other evidence, including an entry in the school register unless that to be flawless."
43. Further more, in another case reported as Kanchan Dass v. State, 40 (1990) D.L.T. 401, it was held by Hon'ble Delhi High Court while dealing with similar aspect as under :-
"Assessment of age given on the basis of ossification test is to be preferred when there is doubtful oral evidence and suspicious evidence in the shape of school leaving certificate."
44. So, in view of the aforesaid judgments as rendered by Delhi High Court and applying the same to the facts and circumstances of the present case, it can be safely concluded that the ossification test of the prosecutrix should have been conducted which was to be preferred over the oral age of the prosecutrix and her school records as such information Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
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would be furnished to the school by her parents.
45. It is a common knowledge that in India parents generally tell the age of the child in the school much less than the actual age of the child for the reason that he or she may get benefit of the same in future. Present case is also an exception to the same. It is clear that prosecutrix date of birth was not registered. Whatever her parents told verbally was written in the school record. It is evident that there is nothing to show that the said date of birth had been given on the basis of some authentic and credible government record.
46. However, in the present case, there is neither the ossification test of the prosecutrix has been conducted nor there is any Municipal Authority or MCD date of birth certificate of the prosecutrix. Therefore, the school admission register (Ex.PW7/A) or the oral evidence of PWs 4, 5 and 7 cannot be taken into consideration.
47. Therefore, applying the same ratio, it cannot be said that the age of the prosecutrix was about 15 years or that she was a minor on the date of the alleged offence. The prosecution as failed to prove that she was a minor.
MLC OF THE PROSECUTRIX AND FSL REPORTS
48. The MLC of the prosecutrix (Ex.PW12/A) shows that she has an old abrasion over her left shoulder and she does not have any fresh Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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external injury.
49. Also the FSL reports (not proved by the prosecution) also show that semen could not be detected on the vulval swabs, left lateral vaginal wall swab, anterior vaginal wall swab, posterior vaginal wall swab, pubic hair cutting, right nail bed scrapping, and the nail cuttings.
50. These facts indicate that her version regarding her being beaten and raped are false as had she been actually beaten and raped, she would have received some injuries, maybe minor and the FSL reports would have shown the presence of semen.
MENS REA / MOTIVE
51. Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
52. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
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absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
53. In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
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54. In the present case, a story has been projected that the accused has kidnapped and raped the prosecutrix and this version appears to be untrue as there is no reason why he would do so. The prosecutrix has herself gone with the accused while her family was sleeping. There does not appear to be any criminal intention and mens rea on the part of the accused.
DELAY IN FIR
55. The contention of the advocate, amicus curie for the accused that there was a delay in lodging of the FIR which is fatal to the case is tenable as the prosecutrix went missing on the morning of 05.12.2010 while the FIR has been lodged on 09.12.2010 at 1.30 pm i.e. after a delay of about four and a half days and the delay in lodging of the FIR has been not explained by the prosecution.
56. The Additional Public Prosecutor on the other hand submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible since the father of the prosecutrix was searching for her.
57. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
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creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.
58. In the case reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, the Hon'ble Supreme Court has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy. Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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not in any way render prosecution version brittle.
59. I find on perusal of the record that indeed the criminal action was swung into motion after about four and a half days and no satisfactory explanation has been furnished by the prosecution. Even the neighbor who allegedly told the father of the proesecutrix that she had been enticed by the accused has not been examined by the prosecution to show that the father was indeed making efforts to trace her.
60. Also, it cannot be ignored that the father of the prosecutrix, after the lodging of the FIR conveniently went of Delhi for business, an abnormal conduct, which also indicates that there was laxity on his part in lodging the FIR.
61. Therefore, it can be said that the FIR was lodged after a delay which is fatal to the prosecution story.
SECTIONS 363 AND 376 OF THE IPC
62. In the present case, the charge sheet was filed under sections 363 and 376 of the IPC and the charge was framed under sections 363 and 376 of the IPC.
63. For proving the offence under section 363 IPC, the first and foremost requirement of the prosecution is to prove that the prosecutrix was a minor on the date of the commission of the offence.
Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
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64. Therefore, as discussed above, it can be said that the age of the prosecutrix could be 18 years which makes her a major and it cannot be said with certainty that she was aged about 15 years or was a minor on the date of the alleged offence. The prosecutrix appears to be a major on the date of commission of offence as the prosecution as failed to prove that she was a minor.
65. The hon'ble Delhi High Court in Vivek Kumar @ Sanju and another v. The State and another Crl. M.C. No. 3073-74/2006 decided on 23.2.2007 took similar view. Following observations in that judgment are of some interest:
"There is no law which prohibits a girl under 18 years from falling in love with someone else. Neither falling in love with some body is an offence under IPR or any other penal law. Desiring to marry her love is also not an offence. A young girl who is in love has two courses available to her one is that she should marry with the consent of her parents after obtaining the consent of her parents. If her parents do not agree to persuade them or to wait for attaining the age of majority and then exercise her right as a major to marry the person of her own choice. However, this is possible only when the house of her parents where she is living has congenial atmosphere and she is allowed to live in peace in that house and wait for attaining age of majority. This might have been the reason in the mind of petitioner No.2 when she told her father that she was in love and wanted to marry Sanju, but the response of father when daughter confided in him, created the fear in the mind of petitioner no.2 Her father slapped her and told that her action would malign the religion and bring danger to the religion. He, even threatened to kill her and marry her off to some rich person. When once such a threat is given to a girl around 17 years of age, who is in love, under such Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
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circumstances she has a right to protect her person and feelings against such onslaught of her relatives even if the onslaught is from her own parents. Right to life and liberty as guaranteed by the Constitution is equally available to minors. A father has no right to forcibly marry off his daughter, who is below 18 years against her wishes. Neither he has right to kill her, because she intends to marry out of her religion. If a girl around 17 years of age runs away from her parents house to save herself from the onslaught of her father or relatives and joins her lover or runs away with him, it is no offence either on the part of the girl or on the part of boy with whom she ran away and married.."
66. Similarly in Bhagwan Singh Ors. v. State & Anr. 2006 (3) JCC 2050, the High Court of Delhi had quashed the proceedings. In this case, the following portion from the judgment of S. Vardarajan v. State of Madras, 1965 SCR (1) 243 was quoted. I am privileged to quote the same as below:-
"But when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) from the house of the relative of father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub-Registrar's office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have 'taken' her out of the keeping of her lawful guardianship, that is, the father. The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances, no inference can be drawn that the accused is Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
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guilty of taking away the girl out of the keeping of her father. She has willingly accompanies him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him.."
67. In the present case also, there is no material on record that the prosecutrix was taken or enticed or allured or forced by the accused. There is also no material on record to show that accused deceitfully took away the prosecutrix.
68. In fact, the prosecutrix in her evidence as PW4 has categorically deposed that she had left her house on 05.12.2010 at about 5 am while her family was sleeping in order to go with the accused.
69. Proof of such intention is vital for the purposes of sections 363 and 376 IPC as pointed out by the Supreme Court in Faiyaz Ahmad v. State of Bihar, 1990 Cr.L.J. 2241 (SC). If a girl leaves the house of her parents of her own and is an adult, and accompanies a person to various places, no offence is committed under this section or any other section. Reliance can be placed upon the judgment reported as Om Parkash v. State of Haryana, 1988 Cr.L.J. 1606 (P&H).
70. In another case reported as Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, in para 25 it was observed by Hon'ble Supreme Court of India as under:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are Sessions Case Number : 06 of 2012.
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possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted......"
71. This brings me to the final question as to whether it was she who had gone of her own or had been enticed away by the accused. In this regard it is no doubt true that in her statement before this Court she has stated that she had herself gone with the accused voluntarily and without any threat, pressure, influence or coercion and lived with him and also had physical relations with him.
72. Section 375 of the IPC enumerates six circumstances wherein the sexual intercourse committed amounts to rape which read as under:
First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly - With or without her consent, when she is under sixteen years of age.
73. It is also clear from the evidence of PW4 that she had herself gone with the accused with her free consent and without any threat, Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
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pressure, coercion or influence when she has deposed that on 05.12.2010, the accused asked her to meet him out of her house in the morning. She met him and he took her to Jammu. In these circumstances, in the absence of an active role having been played by the accused, the allegations leveled against the accused stand ruled out altogether. There is no material to conclude that the accused had used force or had enticed her or raped her. The evidence of the prosecution especially the prosecutrix is in favour of the accused. She also appears to have reached the age of discretion. However, it also cannot be ignored that she was of the age of discretion and sufficient maturity.
74. Here, I would like to incorporate the observations made by the Hon'ble Supreme Court in S.Vedarajan v. State of Madras AIR 1965 SC
942. In para 9 of the judgment it was observed as under:-
"It must, however, be borne in mind that there is a distinction between taking and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S.361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused persons. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.."
Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
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75. It can be assessed from the evidence of the prosecutrix that she had gone with her free will and consent with the accused as she did not raise any alarm while they went from Delhi to Jammu by bus. She also did not raise any alarm nor asked for help when he took her to Orissa from Jammu, from Orissa to Amritsar and from Amritsar to Delhi by public conveyance. She also did not raise any alarm nor asked for help in Delhi while leaving, at Jammu, in Orissa, at Amritsar and at Delhi nor told anyone at any point of time that she had been kidnapped or raped.
76. It is clear from the record that the prosecutrix not only was a major on the date of alleged offence (as there is no proof of her being a minor) but she had also reached the age of discretion and had herself gone voluntarily with the accused and lived with him. She was neither taken away nor enticed from her father's custody by the accused nor raped repeatedly. She has not deposed an iota about any alleged rape or forced physical relations. Under these circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father or raping her. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. There is nothing incriminating on the record against the accused.
STATEMENT AND EVIDENCE OF THE PROSECUTRIX
77. It is necessary to discuss and analyse the testimony of the most Sessions Case Number : 06 of 2012.
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material witness i.e. PW4, the prosecutrix, as she has taken different stands in her statements.
78. In the Court, during trial, the prosecutrix, as PW4, in her evidence, has deposed that she was studying in the 5th class and used to play in the plot nearby along with other children of the locality including accused Sonu @ Parvinder, who was known to her. Accused had obtained the mobile number of her mother and her address from her and thereafter, he started calling her on the said mobile number prior to 05.12.2010. Accused told her that he loves her very much and he also insisted her for the same. Accused also promised her that he will marry her. On one occasion, her mother had heard the conversation going on between them on the phone and thereafter she gave beatings to her as well as to the accused. On the next day, accused had left for Amritsar, Punjab and her mother had destroyed her mobile phone due to which accused had not contacted her from Punjab. After some months, he came back to Delhi and managed to trace out her landline number and thereafter started making calls to her. On 04.12.2010 in the evening, he had made a call to her and asked her to meet outside his house at about 5:00 PM but she did not meet him despite the fact that the accused was roaming outside her house. Thereafter, he again made a call and asked her to meet at 5:00 AM on 05.12.2010. On the next day i.e. 05.12.2010 at about 5:00 AM, she left her house leaving behind all her family members sleeping in the house to meet the accused outside her house. The accused allured her on the pretext that he will marry her and he took her to his sister's house at Jammu by bus via GTK Bye Pass, Delhi. Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
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The father of the accused had dropped them to GTK Bye Pass, Delhi in his car. While reaching Jammu, he refused to marry her and he kept her inside a separate room in the house of his sister. Accused had confined her there and had torn her wearing clothes and also gave beatings to her. Accused also forcibly removed her under garments and he also removed his clothes and under garments and forcibly committed rape on her against her wishes and without her consent in the room. When she tried to resist, he also caused teeth bite injury on her and he also caused some nail injuries with his hands on her person. When she again insisted accused to marry her and telling him that such things are not always good prior to the marriage, then accused promised her to marry her in Orissa. Accused kept her in the house at Jammu for about five days and during this period, he had committed rape on her many times and thereafter he took her to Orissa by train where he kept her in a house belonging to one of the relatives of his sister for about ten days. She asked the accused there also in Orissa to marry her but accused refused for the same and he again committed rape upon her in the house many times and he also gave beatings to her there also. When all the pocket money was finished, then accused took her to his parents' house in Amritsar, Punjab and he kept here there for about 2-3 months. She was confined by the mother of accused in the house in Amritsar for about 4-5 days and she had not even provided food to her. During the stay at Amritsar, the accused had committed rape upon her many times against her wishes and without her consent there also, he refused to marry her despite her repeated requests. The father of the accused also refused for her marriage with the accused. She managed to Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
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make a phone call at Delhi to her mother from the mobile phone of the mother of accused. When this fact came in the knowledge of accused, he gave beatings to her for the same. Thereafter, the family of accused got frightened about the police action and thereafter accused brought her to Delhi and thereafter they got down from the bus at GTK By Pass bus stop. As she had already informed her mother from Amritsar from the mobile phone of one neighbour of accused regarding the fact that accused is going to leave her in Delhi, they found police along with her mother already present at GTK By Pass bus stop. Police had apprehended the accused in her presence immediately when they got down from the said bus there. Police had recorded her statement in this case. She was taken to Sanjay Gandhi Memorial Hospital on 27.03.2011 at about 7:55 PM where she was medically examined. Accused was also taken to the same hospital by the police at the same and he was also medically examined there. Her statement (Ex.PW4/A) was also recorded by the learned Metropolitan Magistrate.
79. The prosecutrix, in her statement under section 164 Cr.P.C., has deposed that her father's name is Vilayati Singh. Previously they were residing at Vishnu Garden and thereafter they shifted to Nihal Vihar. There was a big plot belonging to the relative of her mother where the children of all the locality including accused Sonu @ Parvinder used to play. Soon he became her friend and obtained her mobile number and address from her. Thereafter, he started making call on the number. One day he told her that he loves her and insisted her to do the same. When she accepted it, he Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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told her that he wants to marry her. Her mother heard all the conversation going on between them on phone and gave beatings to her as well as to accused. Thereafter, he left for Amritsar for his sister's house. As her mother had broken the said phone, therefore, she could not talk to him thereafter. After 3-4 years, he returned to Delhi and obtained her landline phone number. He started making call on her landline phone and insisted her to go with him as he wants to marry her. When she denied, he asked her to meet him. On meeting, he again asked her to accompany him and he will marry him. Thereafter, she went away with accused. He took her at Jammu at the house of her elder sister. She asked him to marry her but he didn't. Thereafter, he raped her after removing and tearing her clothes and injured her with his nails. He did not marry her and repeatedly raped her at Jammu. Then he took her Orissa where they stayed for ten days and as the money had finished he took her to Amritsar to his parents where his mother kept her locked inside a room for 4/5 days, did not give her food and had beaten her. Then she called her mother from the phone of the father of the accused and told her the address which were overheard by the accused and he had beaten her. All of them were scared that her mother would bring the police. Then he left her at Bypass. She had told her mother due to which her mother brought the police and both of them were apprehended.
80. In her statement to the police, the prosecutrix has stated that she is aged 15 years. One boy by the name of Parvinder @ Sonu who used to live in the neighbourhood and used to play with the children and Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
State versus Sonu @ Parminder. -:: Page 37
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gradually friendship developed between the prosecutrix and accused. Her mother had seen the accused talking to her and had beaten her and broken the phone and had also scolded the accused. Then he left for his sister's house, Amritsar, Punjab. 6/7 months ago, he returned to Delhi and phoned her and their friendship became deeper. He used to take drugs. He enticed her with promises and took her to Jammu, Amritsar (Punjab) for visiting. He made a plan and told her that he had sufficient money and would buy her clothes and jewellery. Due to the enticement, on 05.12.2010 at 10/11 PM, she came out of her house where accused was standing and without telling her parents she went with him. They went to Karnal By Pass from where he took her in a bus to Jammu and after many days, he took her to his elder sister in Jammu. Then he took her to Amritsar, Punjab where his sister was living. There they stayed in a separate room and then accused took her to his village Talwandi Sultan Wad where they stayed in a rented room. He told her about the marriage but refused to marry her. She requested him several time to marry her but without marriage and without her consent by putting her under threat he established physical relationship with her. He told her that he shall establish physical relationship with her without marriage and abused, threatened and had beaten her. She telephoned her mother and also made the accused talk to her. Her mother said that she would bring the police on which the accused brought her to Delhi. The accused had enticed her and on the promise of marriage and extending threats he had raped her. He was apprehended while he was coming with her.
Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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81. The prosecutrix has taken different stands and given different versions of the alleged incident in her statements under section 161 of the Cr.P.C. as well as under section 164 of the Cr.P.C. and her evidence before the Court. There are overwhelming contradictions in her different statements, which are tabulated herein below in paragraph number 91.
82. In the light of the aforesaid nature of deposition of the prosecutrix, PW4, who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
83. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases
487.
84. It cannot be ignored that in her cross examination on behalf of the accused, the prosecutrix has admitted that she left her house without telling anybody. She did not take help from anyone at Jammu, Orissa and Amritsar as well as while travelling in the bus or train. She did not know the name of city in Orissa where they stayed. When they had left Delhi Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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initially, she wanted to marry the accused but when they returned to Delhi, she did not want to marry him as he had treated her badly and had not given her proper meals.
85. It is not in dispute that the accused and the prosecutrix had come to Delhi with the accused by bus and got down at GTK By Pass. This fact indicates that they were together with the consent of the prosecutrix and had been moving together freely in the public since they had used different means of conveyance like bus, train for going to Jammu, Orissa and Amritsar and then back to Delhi. The prosecutrix apparently has not made any complaint to anyone nor raised alarm at any point for help.
86. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.
CONSENT OF THE PROSECUTRIX- HER STATEMENTS
87. While determining whether there was a consent, Court must in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, as each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact.
88. It has been argued on behalf of the accused that the prosecutrix Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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was a consenting party. It may be observed here that consent is an act of reason coupled with deliberation, after the mind has weighed the good and evil on each side in a balanced manner. Consent denotes an active will in the mind of a person to permit the doing of an act complained off. Consent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge of the significance and the moral quality of the act, but after having freely exercised a choice between resistance and assent. Where the prosecutrix had sufficient opportunity not only to run away from the accused but she could have taken the help of the neighbours and medical evidence also indicated that there were no injuries on the person of the prosecutrix, it can be said that she was a consenting party.
89. It has been held in the judgment reported as Sadashiv Ramrao Hadbe v. State of Maharashtra and another, (2006) 10 SCC 92 that absence of injuries on the body of the prosecutrix improbabilise the prosecution version that she has been raped. Similar opinion was also observed in Radhu v. State of Madhya Pradesh, JT 2007 (11) SC 91 and Vinay Krishna Ghattak v. State of Rajasthan, 2004 (1) RCR (Cri.) 565 wherein it was held that absence of injuries on the body of the prosecutrix generally gives rise to an inference that she was a consenting party. In the present case, therefore, it can be said as there is no injury on the body of the prosecutrix, the probability is that rape is not committed.
90. This brings me to the final question as to whether the Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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prosecutrix was raped or threatened.
91. There are several contradictions and glaring discrepancies in the different statements of the prosecutrix which make her version unbelievable. They are tabulated below.
Evidence in Court Statement under Statement to the
section 164 of the police
Cr.P.C.
Accused had obtained Accused had obtained No mention as to how the mobile number of her mobile number the accused had her mother and her and address from her. obtained the mobile address from her. number.
After some months, After 3-4 years, he 6/7 months ago, he he came back to Delhi returned to Delhi and returned to Delhi and and managed to trace obtained her landline phoned her and their out her landline phone number. friendship became number and thereafter deeper.
started making calls to her.
No deposition about No deposition about the He used to take drugs. the accused taking accused taking drugs.
drugs.
Thereafter, he again On meeting, he again On 05.12.2010 at made a call and asked asked her to accompany 10/11 PM, she came her to meet at 5:00 him and he will marry out of her house where AM on 05.12.2010. him. Thereafter, she accused was standing On the next day i.e. went away with and without telling her 05.12.2010 at about accused. parents she went with 5:00 AM, she left her him.
house leaving behind all her family members sleeping in the house to meet the Sessions Case Number : 06 of 2012. Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
State versus Sonu @ Parminder. -:: Page 42
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accused outside her
house.
He took her to his He took her at Jammu He enticed her with sister's house at at the house of her promises and took her Jammu by bus via elder sister. to Jammu, Amritsar GTK Bye Pass, Delhi. (Punjab) for visiting.
They went to Karnal By Pass from where he took her in a bus to Jammu and after many days, he took her to his elder sister in Jammu.
The father of the No such deposition No such deposition accused had dropped about the father of the about the father of the them to GTK Bye accused. accused.
Pass, Delhi in his car.
At Jammu, the accused No such promise at No such promise at promised her to marry Jammu. Jammu.
her in Orissa.
Accused kept her in No deposition the house at Jammu regarding the duration Then he took her to for about five days of stay at Jammu. Amritsar, Punjab and during this period, where his sister was he had committed rape No deposition about living. There they on her many times. going to Talwandi stayed in a separate Sultan Wad. room and then No deposition about accused took her to his going to Talwandi village Talwandi Sultan Wad. Sultan Wad where they stayed in a rented room.
Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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Thereafter he took her From Jammu, he took No mention about
to Orissa by train her Orissa where they Orissa.
where he kept her in a stayed for ten days.
house belonging to
one of the relatives of
his sister for about
ten days.
The accused took her From Orissa, he took From Jammu he took
to his parents' house her Amritsar to his her to Amritsar.
in Amritsar, Punjab parents where his
and he kept here there mother kept her locked
for about 2-3 months. inside a room for 4/5
days, did not give her
food and had beaten
her.
She was confined by She was confined by No such deposition.
the mother of the mother of accused
accused in the house in the house in
in Amritsar for about Amritsar for about 4-5
4-5 days and she had days and she had not
not even provided even provided food to
food to her. her and she was beaten.
The father of the No such deposition. No such deposition.
accused also refused
for her marriage with
the accused.
She managed to make She called her mother She telephoned her
a phone call at Delhi from the phone of the mother and also made
to her mother from the father of the accused the accused talk to
mobile phone of the and told her the her.
mother of accused. address which were
overheard by the Her mother said that
accused and he had she would bring the
beaten her. police on which the
accused brought her to
Delhi.
Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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The family of accused All of them were scared He was apprehended
got frightened about that her mother would while he was coming
the police action and bring the police. with her.
thereafter accused
brought her to Delhi Then he left her at
and thereafter they got
Bypass. She had told
down from the bus at her mother due to
GTK By Pass bus which her mother
stop. brought the police and
both of them were
apprehended.
She had already No such deposition. No such deposition.
informed her mother
from Amritsar from
the mobile phone of
one neighbour of
accused.
92. Also there are contradictions in the evidence of the prosecutrix and her parents which cannot be ignored. They are as follows:
Prosecutrix- PW4 Father of prosecutrix- Mother of PW5 prosecutrix-PW11 No deposition about Family members were Accused talked to her the accused informing informed by the and informed her that that he will bring her accused himself. he will leave the to Karnal By Pass. prosecutrix at Karnal By Pass.
Knows the accused Knows the accused Knows the accused four-five months prior three years prior to the three-four years prior to the occurrence. occurrence. to the occurrence.
Police recovered her.Prosecutrix recovered Prosecutrix recovered
as per the instructions by the police.
of the accused.
Accused had obtained Prosecutrix used to talk No such deposition. the number of the to the accused on the mobile phone and mobile of his wife as Accused used to tease Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
State versus Sonu @ Parminder. -:: Page 45
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address. Used to talk the prosecutrix had her daughter.
on phone. given the mobile
number.
Accused in love with No such deposition Prosecutrix had an her and asked her to about an affair. affair with the accused. reciprocate.
93. There is no explanation coming from the prosecution in respect of the contradictions, as tabulated above in the two tables. They are too major to be ignored and strike at the very root of the case making it doubtful as these blemishes are fatal. The possibility of the false implication of the accused cannot be ruled out due to the prosecutrix giving different versions of the alleged incident and the contradictions in the evidence of the prosecutrix and her parents.
94. Although the prosecutrix as PW4 has deposed that she was raped by the accused several times at different places, but her evidence appears to be unreliable, as already discussed above. Also there are overwhelming contradictions in her different statements, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused person. The prosecution story does not inspire confidence and is not worthy of credence.
95. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish kidnapping or rape. The gaps in the prosecution evidence, the several discrepancies in the evidence and other Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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circumstances make it highly improbable that such an incident ever took place. It appears from the evidence that it is not a case of kidnapping but of elopement.
96. She was living in City like Delhi. From the conduct of PW4, the prosecutix, it is clear that PW4 herself willingly went with the accused Avnish and also stayed with him for about three months w.e.f 05.12.2010 to 27.03.2011 without making any complaint to anybody. Her entire conduct shows that she was a consenting party to the whole incident.
PROMISE TO MARRY AND PHYSICAL RELATIONSHIP
97. An argument has been raised by the Additional Public Prosecutor that the accused on the pretext of love and promise to marry established a physical relationship with the prosecutrix which amounts to rape as this is obtaining the consent of the prosecutrix by fraud and incitement which neither voluntary nor free. Had the prosecutrix known that the accused would not marry her, she would not established physical relations with him.
98. On the other hand, it had argued by the counsel for the accused that the prosecutrix had physical relationship with the accused with her free consent and will.
99. The crucial expression in section 375 of the IPC which defines rape as against her will. It seems to connote that the offending act was Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
State versus Sonu @ Parminder. -:: Page 47
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despite resistance and opposition of the woman. IPC does not define consent in positive terms. But what cannot be regarded as consent is explained in Section 90 which reads as follows:
"Consent given firstly under fear of injury and secondly under a misconception of fact is not consent at all."
100. Jowitts Dictionary on English Law, Words and Phrases, Permanent Edn. explains "consent" as follows:
"Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent is obtained by intimidation, force, meditated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of mind."
101. In Words and Phrases, Permanent Edn., Vol.8-A, the following passages culled out from certain old decisions of the American Courts are found:
".....adult females understanding of nature and consequences of sexual act must be intelligent understanding to constitute consent."
102. Here, it would be necessary to mention that in the case reported as Jayanti Rani Panda v. State of West Bengal and anr., 2002 SCC (Cri) 1448, it has been observed that:
"The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to an act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in aid in such a case unless the Court can be assured that from the very inception the accused never really intended to marry her."
103. Similar observations have also been made in the judgments reported as Pradeep Kumar Verma v. State of Bihar & anr., AIR 2007 SC 3059; Jyotsana Kora v. The State of West Bengal and anr., Manu/WB/0364/2010; Deelip Singh alias Dilip Kuamr v. State of Bihar, (2005) 1 SCC 88; Uday v. State of Karnataka, (2003) 4 SCC 46 and Naresh Kumar v. State (Govt. of NCT) Delhi, 2012 (7) LRC 156 (Del).
104. When a girl, a major, willfully has physical relations with the accused on the promise to marry on an uncertain date, it cannot be said that it is a misconception of fact or that her consent has been obtained by fraud. It is clear that the prosecutrix accepted whatever physical relationship was there with her free consent.
105. Also, there is no explanation coming from the prosecution as to why should she keep it a secret from her parents if really she had belief in that promise of marriage. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
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the accused had no intention of keeping that promise.
106. In the present case, it is clear that that the consent of the prosecutrix on the promise to marry cannot be said to be under a misconception of fact as she was a major at the time of the alleged incident and intelligent enough to understand the consequences of establishing physical relationship with the accused. Mere promise to marry on an uncertain date does not indicate that the accused has obtained her consent for the physical relationship by fraud or misrepresentation. Consent given by the prosecutrix to have physical relationship with whom she is in love, on a promise that he would marry her on a later date, cannot be considered as given under misconception of fact.
107. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was raped as her consent is not free.
CONCLUSION
108. It is not possible that the accused would keep her at different places w.e.f. 05.12.2010 to 27.03.2011 and repeatedly commit rape upon her without any person noticing the same or without her bringing the incident to the notice of any person, especially when they have been using public conveyance for travelling from one city to another. The testimony of the prosecutrix inspires no confidence and does not appear to be voluntarily and truthful.
Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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109. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
110. Applying the above principles of law to the facts of present case, it is evident that the identity of the accused Mr.Sonu @ Parminder stands established. He was known to the prosecutrix even prior to the incident. It also stands established that the prosecutrix was not a minor at the time of the alleged incident i.e.05.12.2010. It also stands established that the accused had neither kidnapped her nor raped her. The testimony of the prosecutrix does not inspire confidence and does not appear to be voluntary and truthful in so far as the allegations of the accused having kidnapped the prosecutrix and having committed rape upon the prosecutrix. It stands established that the prosecutrix was got recovered at Karnal By Pass along with the accused. It does not establishes that the prosecutrix had been forcibly taken by the accused rather it appears that she had gone by Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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her own consent and had been residing with him on the pointing out of her mother and during this period, she had physical relations with the accused with her consent.
111. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused.
112. Accordingly, Mr.Sonu @ Parminder, the accused is hereby acquitted of the charges. He is in judicial custody. He be released, if not required in any other case.
113. It would not be out of place to mention here that today there is a hue and cry being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the evidence of the prosecutrix is unreliable and untrustworthy, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C.
114. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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115. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
116. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
117. Before parting, I would also like to observe that Ms.Anju Dixit, advocate, who has been appointed as Amicus Curiae in this case, made very sincere and laborious efforts in this case with her very able assistance and regular appearance, thereby enabling the Court to dispose the matter expeditiously.
117. After the expiry of the period of limitation for appeal, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 09th day of January, 2013. ASJ (SFTC)-01, West, Tis Hazari Courts, Delhi.
Sessions Case Number : 06 of 2012.
Unique Case ID Number : 02401R0242412011.
FIR No. 255/2010, Police Station Nihal Vihar, Under sections 363 and 376 of the Indian Penal Code.
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