Delhi District Court
State vs . Rajesh Sharma on 19 October, 2013
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No.71/12)
Unique ID case No. 02404R0236392012
State Vs. Rajesh Sharma
FIR No. : 152/12
U/s : 363/366 IPC
P.S. : Ashok Vihar
State Vs. Rajesh Sharma
s/o Sh. Maheshwari
r/o Chandan Patti, Suryaganj
District Gamhariya,
Madhyapura, Bihar.
Date of institution of case 03.09.2012
Date on which, judgment has been reserved 19.10.2013
Date of pronouncement of judgment 19.10.2013
JUDGMENT:
1 The case of the prosecution in brief is that on 29.06.2012 DD SC No. 71/12 State Vs. Rajesh Sharma Page No. 1 of 40 2 No. 18 PP was registered at PS Ashok Vihar on information given by Sh.Surender Tiwari, complainant, that his 13 years old daughter had been taken away by a boy named Rajesh. The said DD was marked to SI Nawal Singh, who went to the house of complainant at Jhuggi No.A94, S.S. Nagar, WPIA, Delhi, and met complainant, who gave his complaint Ex.PW3/A wherein he alleged that his daughter was found missing by him and his wife, when they returned home for lunch at about 12:30 in the noon, and that they searched for her and came to know that she had been enticed away by accused Rajesh, residing in their neighbourhood. The complainant gave description of his daughter in the complaint and prayed that she be traced out.
2 On the basis of said complaint, a case u/s.363 IPC was registered at PS Ashok Vihar against accused Rajesh. During the course of investigations, IO SI Nawal Singh got flashed WT Message and also gave information on NCRB, CBI, TV and Zipnet. The prosecutrix was also searched for by IO and complainant by visiting houses of various relatives of complainant. Thereafter a secret information was received that the accused Rajesh had taken the prosecutrix to his native village at Bihar. The police team comprising of ASI Karan Singh, Ct. Shiv Kumar and W/Ct. Ranjana proceeded to Gumariya, Bihar, along with the father of the prosecutrix and there accused Rajesh was apprehended with the help of police from Gumariya. The prosecutrix was also recovered and was kept in safe custody SC No. 71/12 State Vs. Rajesh Sharma Page No. 2 of 40 3 of L/Ct. Ranjana. The statement of prosecutrix was recorded u/s.161 CrPC wherein she alleged that accused used to ask her to marry him and on 29.06.2012 he enticed her and took her to his village where he forcibly married her in a temple. The accused as well as prosecutrix were produced before CJM, Madhyapura, and accused was brought to Delhi on transit remand. The prosecutrix was also brought to Delhi and was taken for medical examination, however, she refused for her medical examination. Supplementary statement of prosecutrix was recorded u/s.161 CrPC and thereafter her statement u/s.164 CrPC was also got recorded. In both these statements, prosecutrix alleged that accused had taken her to a woman by name of Rajeshwari, residing in their neighbourhood, and said Rajeshwari had given her laddoos to eat and after eating the same, she (prosecutrix) lost her consciousness. The prosecutrix, however, made another statement u/s. 161 CrPC wherein she stated that she had leveled false allegations against Rajeshwari out of anger as accused Rajesh used to visit house of Rajeshwari. During the course of further investigations, IO tried to obtain age proof of prosecutrix but since none was available, she got prosecutrix examined by medical board for determination of her age. The prosecutrix was handed over in custody of her father pursuant to orders passed by CWC. After completing the investigations, charge sheet was prepared and filed in the Court through SHO concerned. The name of Rajeshwari was mentioned in column No.12 of the charge sheet in view of the subsequent statement made by the prosecutrix.
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3 Upon committal of this case to the court of Sessions, charges
for the offence under Sections 363/366 IPC were framed against the accused Rajesh. However, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence. 4 In order to prove its case prosecution has examined 15 witnesses : 5 The PW2, HC Parmendra, was posted as HC at PCR PHQ on 29.06.2012 and had received call from the father of prosecutrix wherein he had told that one person namely Rajesh had taken away his daughter i.e. the prosecutrix, aged about 13 years, from A94, Sukhdev Nagar, Near the shop of Lalji and deposed that the said call was forwarded by him to Wireless Operator. He proved the form No.1 of Delhi Police Control Room, which had been filled up by him pursuant to the call, as Ex.PW2/A. 6 The PW14, HC Sumitra, is the DD Writer and had reduced the information given by father of prosecutrix regarding enticing away of the prosecutrix by accused Rajesh, received through Wireless Operator, in writing vide DD No.18PP and deposed regarding the same. She proved the attested true copy of Dd No.18PP as Ex.PW14/A. SC No. 71/12 State Vs. Rajesh Sharma Page No. 4 of 40 5 7 The PW12, SI Nawal Singh, was entrusted DD No.18PP for inquiry and had gone to the residence of complainant at Jhuggi No.A94, S.S. Nagar, WPIA, Ashok Vihar, Delhi, along with Ct. Sanjay and deposed regarding the same. He stated that at the informed place he met complainant Surender Tiwari, who gave his statement Ex.PW3/A, whereupon PW12 made endorsement and got case FIR registered through PW9 Ct. Sanjay and that he also gave one copy of the FIR to the complainant and that on return to PS, he got WT Message Ex.PW12/A flashed all over India to all SSPs and DCPs and SHOs in Delhi and also informed Zipnet.
8 During his crossexamination, PW12 deposed that he had not recorded statement of public persons from the locality, who were present at the house of complainant and that he had come to know during inquiry that boy namely Rajesh, who was residing in the neighbouhood of complainant, was also missing from his house. The PW12, however, denied that he had been told by neighbours of complainant that prosecutrix had herself eloped with accused as they were having a love affair.
9 The PW9, Ct. Sanjay Kumar, had joined investigations of the case with PW12 SI Nawal Singh and deposed on the lines of PW12 SI Nawal Singh.
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10 The PW1, HC Ravinder Kumar, is the duty officer. He proved
the computerized copy of FIR as Ex.PW1/A and the endorsement made by him on rukka as Ex.PW1/B. 11 The PW3, Surender Tiwari, is the father of the prosecutrix. He deposed that he and his wife were working in a private factory at WPIA and that he had four children and that the prosecutrix was his third born child, who was aged about 14 years at the time of incident. He further deposed that on the day of the incident, he and his wife left for their work at about 8:00 AM and returned home for lunch at about 12:30 in the noon and that when they reached home, they did not find prosecutrix at home and that they started searching for her but could not trace her out and so PW3 went to Police Station and filed his complaint. He then deposed that while searching for his daughter, he had also inquired from Mahender Sharma, uncle (chacha) of accused Rajesh and that said Mahender Sharma told PW3 that his daughter had reached their village and that due to this reason, PW3 mentioned name of accused Rajesh in his complaint. He proved his complaint as Ex.PW3/A. 12 The PW3 further deposed that after three days of filing of his complaint Ex.PW3/A, he along with a team of Police officers went to SC No. 71/12 State Vs. Rajesh Sharma Page No. 6 of 40 7 Domaria Ganj, District Madhaya Pura, Bihar and that after reaching there, Mahender Sharma, uncle of accused Rajesh took them to his house in the village from where prosecutrix and the accused were recovered. He also deposed that at that time the villagers were not allowing them to bring back prosecutrix and the accused and were pressurizing PW3 to marry prosecutrix with accused and that PW3 could resist their pressure as Police was with him and that thereafter prosecutrix and accused were brought to Delhi and that the prosecutrix was taken for medical examination to the hospital and that she was also produced before learned MM for her statement and thereafter she was released in custody of PW3. He identified his signatures on the recovery memo of the prosecutrix and proved the same as Ex.PW3/B. He also identified the accused.
13 In response to a leading question put by learned Additional PP, the PW3 termed it correct that Mahender Sharma had taken them to Chandan Patti, Village Surya Ganj, P.S. Gamhiriya, District Madhepura, Bihar.
14 During his crossexamination by learned defence counsel, the PW3 stated that he may have mentioned the age of prosecutrix as 13 years in his call at 100 number. The PW3 denied that accused Rajesh used to visit their house. He stated that he had seen accused Rajesh in his locality but did not know him personally and that prosecutrix had not been visiting the SC No. 71/12 State Vs. Rajesh Sharma Page No. 7 of 40 8 house of accused Rajesh. The PW3 further stated that he did not know whereabouts of Rajeshwari, sister of accused Rajesh. He went on to state that he did not know the sister of accused Rajesh. The PW3 denied that his daughter had voluntarily gone with accused Rajesh. 15 Regarding information about the whereabouts of the prosecutrix, the PW3 stated that Sh. Mahender Sharma told him at his house at about 7:00 PM that prosecutrix had reached his village and that PW3 did not know Sh. Mahender Sharma prior to the incident nor was he aware of the whereabouts of Mahender Sharma. He also stated that Mahender was called to PS by the Police through 2 boys and that the said boys were not from his (of PW3) locality and were known to Mahender. He termed it correct that he had not mentioned in his complaint Ex.PW3/A the basis on which he suspected accused Rajesh of taking away his daughter. 16 From further crossexamination of PW3, it is brought out that prosecutrix was born at home at his native village and that PW3 had not got the date of birth of prosecutrix recorded with corporation / Panchayat of his village. He volunteered to state that the Pandit in the village prepared janam kundi in which the name of the child was mentioned. He also stated that he had got prosecutrix admitted in nursery school when he came to Delhi, however, PW3 could not tell the name of the school or the date of birth of prosecutrix mentioned by him at the time of her admission in the school or SC No. 71/12 State Vs. Rajesh Sharma Page No. 8 of 40 9 the basis on which he had mentioned the said date of birth. He denied that he had undermentioned age of prosecutrix as well as his other children by five years at the time of their admission in the school. He denied that the prosecutrix was having a love affair with the accused or that the same was within their knowledge or that due to difference in their castes as PW3 and his family were Brahamins and accused from a backward class, PW3 was not agreeable to marriage between the accused and the prosecutrix. 17 The PW6, is the prosecutrix in the present case. Her testimony shall be discussed in details in following paragraphs. 18 The PW4, Dr. Narender, had examined the accused and given opinion regarding his sexual capability. He proved the MLC of the accused as Ex.PW4/A. 19 The PW5, Dr. Seema, was deputed in place of Dr. Poonam Barnwal, who had prepared the MLC Ex.PW5/A of the prosecutrix, wherein prosecutrix had refused for her gynecological examination, and deposed regarding the same.
20 The PW13, Dr. Shipra Rampal, was one of the members of the medical board which had examined the prosecutrix for determination of her age. She proved the report of medical board as Ex.PW13/A wherein the SC No. 71/12 State Vs. Rajesh Sharma Page No. 9 of 40 10 prosecutrix was opined to be between 16 to 18 years of age as on the date of examination i.e. 27.08.2012.
21 The PW15, ASI Karan Singh, deposed that on 04.07.2012, further investigations of the case were handed over to him and on the same day, he along with L/Ct. Ranjana, Ct. Shiv Kumar and complainant Surender Tiwari left for VPO Gamhariya, District Madheyapura, Bihar, and reached there on 05.07.2012 and took help of local police of PS Gamhariya for reaching the house of accused Rajesh which was situated at Suryaganj Mohalla. He further deposed that after reaching there, the complainant Surender Tiwari pointed out towards accused Rajesh, who was present in the gali near his house and told PW15 that he was the same boy, who had kidnapped his daughter i.e. the prosecutrix and that PW15 interrogated accused Rajesh, who told PW15 that the prosecutrix was present in the house of his uncle Mahender and pointed out the said house from where the prosecutrix was recovered. The PW15 proved the recovery memo of the prosecutrix as Ex.PW3/B and further stated that he recorded statement of prosecutrix u/s.161 CrPC and handed over her custody to L/Ct. Ranjana and the complainant Surender Tiwari and that he also arrested accused Rajesh vide arrest memo Ex.PW8/A and personally searched him vide memo Ex.PW8/B. 22 The PW15 further deposed that thereafter the accused and the SC No. 71/12 State Vs. Rajesh Sharma Page No. 10 of 40 11 prosecutrix were taken to nearby government hospital for their medical examination but their medical could not be conducted due to local holiday and that after that they reached PS Gamhariya where the accused was kept in lock up and the prosecutrix was kept in the custody of L/Ct. Ranjana for the whole night and that on 06.07.2012, the accused and the prosecutrix were produced before the Court of CJM Madheyapura and that PW15 also moved an application Ex.PW15/X for getting the transit remand of accused and that the Court granted 48 hours transit remand of accused and thereafter PW15 along with staff, complainant, victim and accused took a bus from Madheyapura and reached Patna on 07.07.2012 and from Patna, they took a train for Delhi and reached Delhi on 08.07.2012 and that the further investigations of the case were handed over to SI Nawal Singh. 23 During his crossexamination by learned defence counsel, PW15 deposed that he had not given anything in writing to the SHO PS Gamhariya that he (PW15) had come to arrest the accused and to recover the prosecutrix. He proved the DD entry (rojnamcha entry) as Ex.PW15/A and the transit remand order as Ex.PW15/B. 24 The PW15 was asked name of police official of PS Gamhariya, who accompanied them but could not tell his name. He, however, stated that said police official was a constable of Gramin Police of the area about which he was told by the Munshi of PS Gamhariya. The PW15 denied that he had SC No. 71/12 State Vs. Rajesh Sharma Page No. 11 of 40 12 neither visited the house of accused nor was the accused arrested from there. He also denied that the prosecutrix was not recovered from the house of uncle of accused situated at Suryaganj. He further denied that complainant Surender Tiwari had gone to the house of accused Rajesh and brought him and the prosecutrix to PS Gamhariya where PW15 and his staff were present and produced them before PW15. He also stated that he had not joined any public persons in the proceedings at the time of arrest of the accused. Though PW15 stated that he had interrogated the accused and recorded his disclosure statement no such disclosure statement of the accused was seen to have been filed by PW15 along with the report u/s 173 Cr.P.C.
25 During his further crossexamination, PW15 stated that he had made inquiry from the villagers at Surya Ganj Mohalla, but none of them agreed to join the investigations, however, they told PW15 that accused and prosecutrix had got married at local temple. The PW15 admitted that he had not mentioned this fact in his report u/s 173 Cr.P.C. The PW15 tried to explain this lapse by stating that he had told the SHO of PS Gamhariya about the fact that the villagers had refused to join the investigations, but he just said, no body can be forced to join the investigations. He admitted that that he had not noted down the names and addresses of the villagers, who refused to join the investigations and that he had also not joined the constable of Gramin Sewa Police in investigations conducted by him in SC No. 71/12 State Vs. Rajesh Sharma Page No. 12 of 40 13 village Surya Ganj and that he did not get the statement of accused and prosecutrix recorded in presence of SHO, PS Gamhariya or before the C.J.M. Madheya Pura.
26 During his further crossexamination, the PW15 stated that the complainant had not told him that he was aware that accused had taken away the prosecutrix.
27 The PW8, Ct. Ranjana and the PW10, Ct. Shiv Kumar, joined the investigation of the present case with PW15 ASI Karan Singh and deposed on the lines of PW15.
28 During her crossexamination, PW8 stated that statement of prosecutrix as well as accused was recorded before CJM Madhyapura. She then stated that only verbal queries were made from them. She yet again stated that she did not remember if their statements were reduced to writing or not. Regarding visit to hospital at Madhyapura, PW8 stated that a written request was made to the concerned doctor at the hospital but she could not state if the concerned doctor had given his refusal in writing or not and stated that at that time she was standing outside the room and only the IO had talked to the doctor.
SC No. 71/12 State Vs. Rajesh Sharma Page No. 13 of 40 14 29 The PW10 stated during his crossexamination that they were taken to house of accused by two police officials from PS Gamahriya whose name he did not remember. He also stated that when they reached the house of accused, he was not found present there and was present at the house of his Chacha Mahender along with the prosecutrix. The PW10 could not tell the name of government hospital where accused and prosecutrix were taken for medical examination. He also stated that they had only met guard in the hospital as it was locked from outside. The PW10 further stated that statement of prosecutrix was recorded before CJM and that at that time he was outside the Court having been entrusted with the custody of the accused.
30 The PW11, W/SI Rajesh, deposed that on 08.07.2012, further investigations of the present case were entrusted to her and that during the course of investigation, she got accused Rajesh Sharma and the prosecutrix medically examined at BJRM Hospital through Ct. Babu Lal and W/Ct. Deepa respectively and that after the medical examination of accused and prosecutrix, Ct. Babu Lal had handed over two sealed pullandas containing the undergarments and blood sample of accused with one sample seal of hospital, to her which were seized by her vide seizure memo Ex.PW11/A and that no exhibits of prosecutrix were given by the concerned doctor, who examined her, as the prosecutrix and her mother had refused for her internal examination.
SC No. 71/12 State Vs. Rajesh Sharma Page No. 14 of 40 15 31 The PW11 further deposed that the prosecutrix was kept at Kilkari Rainbow Home for children, Chabiganj, Kashmiri Gate, Delhi, on 08.07.2012 and 09.07.2012 and that on 09.07.2012, PW11 got the statement of prosecutrix recorded u/s.164 CrPC vide application Ex.PW11/B and that thereafter the prosecutrix was produced before CWC on 10.07.2012 from where her custody was restored to her parents. The PW11 also deposed that she got conducted the bone age Xray of prosecutrix and the accused by the order of concerned Court and that the prosecutrix was opined to be between 16 to 18 years of age and the accused was opined to be between 20 to 22 years of age by the respective medical boards.
32 The PW11 further deposed that the prosecutrix had initially stated in her statement u/s.161 CrPC that she had been given a laddoo laced with some stupefying substance by a lady named Rajeshwari and that she interrogated said Rajeshwari, however, in the meantime prosecutrix gave a statement in writing wherein she stated that out of spite and anger, she had named Rajeshwari as accused used to go to house of said Rajeshwari and that Rajeshwari had nothing to do with the incident that had taken place with the prosecutrix. The PW11 proved the said statement as Ex.PW11/C which was having signatures of prosecutrix as well as her father and stated that in view of the said statement made by the prosecutrix, Rajeshwari was not arrested in the present case though her name was kept in Column No.12 of SC No. 71/12 State Vs. Rajesh Sharma Page No. 15 of 40 16 the charge sheet.
33 During her crossexamination, PW11 stated that she was told by the prosecutrix that "Laddoo khilane wali baat galat hai". The PW11 further stated she had not joined any independent witness from the locality where the prosecutrix was residing and that she also did not join any independent witness from the neighbourhood of the native village of the accused in investigations and that she did not record statement of any friend of the prosecutrix or the family member of the accused during the course of investigations. She denied that she was told by the people from the locality of the prosecutrix and from the village of accused that prosecutrix and accused were having love affair and had solemnized a love marriage or that due to this reason she had not joined the said persons as witnesses in the present case.
34 The PW7 Ct. Deepa had got medical examination of prosecutrix conducted at the instance of IO W/SI Rajesh and deposed regarding the same.
35 After closing of prosecution evidence, statement of accused Rajesh was recorded u/s 313 Cr.P.C., wherein he stated that he is innocent and has been falsely implicated in the case after obtaining his signatures on blank papers by the Police in connivance with PW3 Sh. Surender Tiwari, SC No. 71/12 State Vs. Rajesh Sharma Page No. 16 of 40 17 father of prosecutrix. He further deposed that he was having a love affair with the prosecutrix, who willingly accompanied him and married him and that father of prosecutrix was against to their relations as he (accused) and prosecutrix were of different caste. The accused submitted that he wanted to lead evidence in his defence but despite opportunity, no witness was examined by the accused and thereafter on 09.10.2013 learned counsel for accused submitted that he wanted to close defence evidence on behalf of accused without examining any witness and his statement in this regard was recorded separately.
36 Arguments have been addressed by learned counsel for the accused as well as learned Additional PP for the State. 37 Learned Additional PP has contended that the prosecutrix has fully supported the case of the prosecution and that she has clearly deposed about the manner in which she was forcibly taken away by the accused to marry him and that she has also deposed about the manner in which accused committed rape upon her. It is further stated that the remaining prosecution witnesses have also corroborated the testimony of the prosecutrix and hence, the prosecution has succeeded in proving its case against the accused beyond reasonable doubt and has accordingly prayed that accused Rajesh be convicted u/s.363/366 IPC. SC No. 71/12 State Vs. Rajesh Sharma Page No. 17 of 40 18 38 Learned counsel for accused on the other hand has contended that accused is innocent and has been falsely implicated in the present case at the instance of father of the prosecutrix and that the accused and the prosecutrix were having a love affair which was well within the knowledge of parents of prosecutrix who did not approve of their relationship as they belonged to Brahmin caste while accused is from a backward caste. It is further contended that as the parents of prosecutrix were not agreeable for marriage between the prosecutrix and the accused, the prosecutrix voluntarily went with the accused to his native village and got married with him and that their marriage was also solemnized in court wherein prosecutrix executed affidavit Ex.PW6/DA wherein she mentioned her age to be above 18 years (23 years). It is further contended that the age of prosecutrix has been wrongly mentioned to be less than 18 years and this is reflected from various statements made by the father of the prosecutrix wherein he has given contradictory age of the prosecutrix. It is stated that since the prosecutrix was above 18 years of age as on the date of commission of alleged offence and had voluntarily gone with the accused, no offence is made out against the accused and it is thus prayed that accused be acquitted of all charges in the present case and it is prayed accordingly. 39 I have heard the arguments put forward by ld. Addl. PP and learned counsel for the accused and have carefully gone through the record SC No. 71/12 State Vs. Rajesh Sharma Page No. 18 of 40 19 of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case and my findings are as under : Age of the prosecutrix 40 The prosecution has not filed any documentary evidence in the form of school certificate, birth certificate, etc. to prove the age of the prosecutrix. The father of the prosecutrix has clearly stated in his deposition as PW3 that he had not got date of birth of prosecutrix recorded with Corporation / Panchayat of his village. Though he stated that he had got prosecutrix admitted in a Nursery school when he came to Delhi, he could not give the name of the said school or the date of birth of prosecutrix mentioned by him in the school record or basis thereof. Further in his call at 100 number, which was ultimately recorded vide DD No.18PP dated 29.06.2012 i.e. Ex.PW14/A, PW3 mentioned age of prosecutrix as 13 years while in his complaint Ex.PW3/A, he mentioned age of prosecutrix as 14 years. In his testimony before the Court also, he mentioned age of prosecutrix as 14 years. On the other hand, the prosecutrix gave her date of birth as 01.01.1998 when she appeared to depose as PW6 but she could not produce any document in support thereof. In her affidavit Ex.PW6/DA, alleged to have been executed by her at the time of her marriage with the accused, which was admitted to be correct by the prosecutrix, the prosecutrix has given her age as 23 years. In these circumstances, the Court has no SC No. 71/12 State Vs. Rajesh Sharma Page No. 19 of 40 20 opinion but to consider the report of medical board which has been proved as Ex.PW13/A by PW13 Dr. Shipra Rampal wherein the age of prosecutrix has been opined to be between 16 to 18 years. Though learned counsel for accused has challenged the report of the medical board no such discrepancy could be pointed out in the report of the medical board and thus the age of prosecutrix is taken to be between 16 to 18 years as on the date of examination i.e. 27.08.2012 which was conducted soon after the date of incident i.e. 29.06.2012.
Statement of the prosecutrix and other material witnesses 41 The prosecutrix went missing from her house on 29.06.2012 and was recovered on 05.07.2012. Her first statement u/s.161 CrPC on 05.07.2012 wherein she stated that she was a student of 10th class and that accused Rajesh was residing as a tenant in a jhuggi near her jhuggi and was working in a factory at WPIA, Delhi, and that she got acquainted with accused Rajesh while moving around in the locality and started talking to him. She further stated that on one day, Rajesh told her that he loved her upon which she told him that she was still studying and was not of a marriagable age. The prosecutrix further stated that accused gradually started influencing her with his sweet talks and told her to accompany him to his village while assuring her that she would not want for anything if she went with him and in this manner, he enticed her to go with him to his village SC No. 71/12 State Vs. Rajesh Sharma Page No. 20 of 40 21 Chandan Patti, Suraj Ganj, Gamhariya, and on reaching his village, prosecutrix came to know that accused had already made preparation for marrying her. On 05.07.2012, father of prosecutrix came with police staff and accused Rajesh, who was roaming around in the village, to the house of Mahender, uncle (Chacha) of accused Rajesh and recovered the prosecutrix. She alleged that accused Rajesh had enticed her with intention to marry her and prayed that action be taken against him.
42 Thereafter on 09.07.2012 another statement u/s.161 CrPC of prosecutrix was recorded wherein she made further improvements in her previous statement u/s.161 CrPC dated 05.07.2012. She stated that on 29.06.2012 during evening hours, she was waiting for her mother as she wanted to go to purchase books for 10th class and at that time, accused Rajesh came to her and told her to accompany him to a temple which was agreed to by the prosecutrix. While going to temple, accused took her to house of his sister Rajeshwari where Rajeshwari gave prosecutrix a laddoo to eat and after eating the said laddooo, prosecutrix became unconscious. When she regained consciousness, she found that she was in a train with the accused and on her asking accused told her that he was taking her for an outing to his village. When prosecutrix protested and asked accused to take her home, he took her forcibly to his village Chandan Patti, Surya Ganj, PS Gamhariya, District Madhyapura, Bihar and further forcibly married her in a temple. At the said place, accused Rajesh and his family members tried to SC No. 71/12 State Vs. Rajesh Sharma Page No. 21 of 40 22 scare the prosecutrix by telling her in case she returned home, her parents would kill her and when father of prosecutrix came with the police, people from the entire village collected there and threatened to kill father of the prosecutrix and told him that now prosecutrix would never return back to Delhi. They again told prosecutrix that in case she went to Delhi then her parents would kill her, however, prosecutrix defied them and told them that she would prefer to go to Delhi and that she wanted to stay with her parents. 43 The statement of prosecutrix u/s.164 CrPC Ex.PW6/A was recorded on 09.07.2012 wherein she deposed and gave statement identical to her statement u/s.161 CrPC dated 09.07.2012 recorded by the IO. 44 The prosecutrix yet again gave a statement u/s.161 CrPC dated 13.07.2012 to the IO i.e. Ex.PW11/C wherein she stated that what she had stated in her earlier statements regarding Rajeshwari giving her laddoo to eat was not correct and that she had stated so as accused Rajesh used to visit to her house along with Ravi, brother of Rajeshwari.
45 The prosecutrix was examined as PW6 before the Court and in the said statement she deposed as under : "My date of birth is 01.01.1998 and I am studying in 9th class. I am residing at abovementioned address with SC No. 71/12 State Vs. Rajesh Sharma Page No. 22 of 40 23 my family. During the summer months, in last year i.e. 2012, on 26th, I had gone to market to purchase a book at about 10:00 AM. When I was returning after purchasing the book, I met accused Rajesh. He told me "chalo tujhe mandir guma lata hu". He hired a TSR and took me with him. Accused did not take to temple but took me to Shakurpur Basti Railway Station from where he took me in a train. I do not remember where he was taking me as accused had given me something to eat after which I lost my consciousness. When I regained consciousness in the train, I asked accused where he was taking me and he told me "chalo tumhe gao guma lata hu". I asked accused to take me back to my parents but he did not listen and told me "chalo tumhe gao guma lata hu, tumhe kisi chij ki kami nahi hogi", in this manner accused threatened me / enticed me and took me to his native village to his house. The family members of accused told me that as and when my parents came there, I should refused to accompany them.
They told me that my parents would beat me and tried to scare me. When they came to know that my parents were coming with the Police, Chacha, Chachi SC No. 71/12 State Vs. Rajesh Sharma Page No. 23 of 40 24 of accused, whose name I do not know, arranged for marriage between me and accused in a temple near the village and they forcibly married me to the accused. After 1 2 days of my marriage, my father came to village with one Police Madam and two Policemen. I was told not to go with my parents but I told them that I would go with my father. When my father came, I returned back to Delhi with him. I was taken to hospital for my medical examination but I refused my medical examination as nothing had happened with me (Rajesh ne mere sath galatkam nahi kiya).
46 The PW6 proved her statement u/s.164 CrPC as Ex.PW6/A. She further deposed that she want to stay with her parents and to complete her studies. During her further examination, she identified the accused. 47 During the crossexamination by learned defence, the PW6 deposed that she did not know since when accused had been residing in her locality and that she knew accused since 5 - 10 days prior to the incident as he was residing in the same locality at a distance of 10 - 15 jhuggis from her jhuggi and they passed through same way. She then stated that she did not know any Rajeshwari and that she also did not know in whose house SC No. 71/12 State Vs. Rajesh Sharma Page No. 24 of 40 25 accused was staying as a tenant. She also deposed that she had seen the house of accused while passing through it on her way for her tuition class etc. 48 During her further crossexamination, she deposed that she regained consciousness in the train but she could not tell the place from where the train was passing when she regained her consciousness and that she did not know the place where they got down from the train during noon time and that it took about 1 - 2 hours in bus to reach village of accused. She then deposed that after getting down from the train, they went to the village of accused by a bus but she did not know the name of the place from where they boarded the bus. She could also not tell name of any of the station which fell on the way to the village of the accused. She further stated that she could not tell the names of the places through which the bus, in which they went to village of accused, had passed and that after she regained consciousness, they continued to travel in train for about half an hour and that she became unconscious when they were traveling in TSR and that she became unconscious after traveling for some distance in TSR and that she did not remember what thing / substance was given to her by the accused that she became unconscious and that prior to that day, accused had not offered her anything to eat. The PW6 further deposed that there were other passengers in the train in which accused took her to his village and that there were also passengers in the bus by which accused took her SC No. 71/12 State Vs. Rajesh Sharma Page No. 25 of 40 26 from the railway station to his village and that she had started crying in the train and when the other passengers asked her, she told them how accused had taken her from Delhi and that the said passengers consoled her and asked her to give telephone number of her house but she did not give them her number and that she did not give her number as the said male passenger was unknown to her and was going for an exam and that she did not tell about the incident to anyone except the male passenger, who was sitting on seat opposite to her seat. The PW6 during her further crossexamination deposed that she was aware that a train can be stopped by pulling the chain and that she also knew that ticket checker and other security staff is available in train but she immediately changed her answer by saying that she was not aware if the train stops by pulling the chain. She then deposed that she did not stop accused when he made her sit in TSR because she did not suspect that he would act in this manner with her.
49 During her further crossexamination by learned defence counsel, the PW6 further deposed that accused had met her at the shop of JPH Books, Lawrence Road and that the said place is at a distance of 10 - 15 minutes from her house and she used to go by that way while going to and coming back from her school and that the distance between the JPH Book shop where accused met her and the temple where he had stated he would take her, is about 5 minutes by foot.
SC No. 71/12 State Vs. Rajesh Sharma Page No. 26 of 40 27 50 During her further crossexamination, the PW6 was shown an affidavit which has been sworn by her at Madhyapura after her marriage with the accused and she identified her signatures on the said affidavit and proved the said affidavit as Ex.PW6/DA.
51 During her further crossexamination, the PW6 deposed that in the bus in which accused took her to his village, there was a lady with small children with whom she shared her plight but the said lady could not help her as she was having small children and that the temple did not fall on the way from which accused had taken her in the TSR and that she did not remember after how much time of their boarding the TSR accused gave her something to eat and that she had asked accused in the TSR also as to where he was taking her and that she wanted to go to her parents but accused told her "chalo me tumhe apne gao guma lau" and that she had asked the TSR driver to stop and on this the TSR driver told accused that whatever was happening was not proper and that the accused told TSR driver "inka to adat hai bolane ka" and that she did not raise alarm in the TSR or the bus or the train and that she did not try to jump out of running TSR but she could not tell number of TSR. She then deposed that her statement was recorded by Police one or two times and by learned MM once and that it was possible that in her statement u/s.164 CrPC, Ex.PW6/A, her age was mentioned as 15 years. She admitted that she stated the fact that accused had administered some stupefying substance to her for the first time in her SC No. 71/12 State Vs. Rajesh Sharma Page No. 27 of 40 28 statement Ex.PW6/A before learned MM. She denied the suggestion that later on she and Rajeshwari, landlady of the accused, had gone to PS or that she had told the Police that she had wrongly stated that accused had administered some stupefying substance to her and that in her statement Ex.PW6/A before learned MM, she had stated that accused had met her in the evening or that she was at the door of her jhuggi or that she knew accused since some time before the incident and that some reporters had visited the village of the accused or that she had told them that her age was 16 years and she had married accused of her own free will. She denied the suggestion that she was having a love affair with the accused or that her family members were aware of her relationship with the accused and that since her family is from upper caste and family of accused is from a backward class, her parents were opposed to their marriage or that due to this reason, she eloped with accused and married him of her own free will and consent and that her date of birth was not 01.01.1998 or that her age had been understated by five years by her father at the time of her admission in the school and that her parents had understated age of all her siblings also by five years at the time of their admission in the school.
52 From the above statements made by the prosecutrix, it is seen that she has changed her version from time to time and has not been consistent in the manner in which she reached village of accused and married him. Whereas in her statement u/s.161 CrPC prosecutrix claims that SC No. 71/12 State Vs. Rajesh Sharma Page No. 28 of 40 29 she was on talking terms with the accused and accused had expressed his love for her and had been pursuing her with his sweet talk and had enticed her to go with him to his native village, in her statement u/s.161 CrPC dated 09.07.2012 and her statement u/s.164 CrPC Ex.PW6/A, prosecutrix claimed that accused had first taken her to the house of his sister Rajeshwari, who administered laddoos laced with some stupefying substance and after eating the same, prosecutrix became unconscious and that she regained her consciousness only in train and raised protest but accused took her to his village forcibly and also forced her to marry him. The prosecutrix then made a statement u/s.161 CrPC dated 13.07.2012 i.e. Ex.PW11/C wherein she completely exonerated Rajeshwari, without clarifying anything further qua the accused Rajesh, and stated that no such incident of giving her laddoos to eat had taken place.
53 The prosecutrix was examined as PW6 before the Court and in her statement she again tried to justify her going to the village of accused, without an iota of protest or resistance on her part, by claiming that accused had given her something to eat because of which she lost her consciousness. She then gave an elaborate account of how accused took her to his village. The time when accused took her also changed and she claimed that the incident happened at 10:00 AM whereas in her earlier statements she claimed that the incident of accused taking her away had happened in the evening time. It appears that in order to bring her version in SC No. 71/12 State Vs. Rajesh Sharma Page No. 29 of 40 30 consonance with the time when her father had made complaint to the police, the prosecutrix in her testimony as PW6 stated that accused had met her and taken her away at about 10:00 AM.
54 From the crossexamination of prosecutrix, the manner in which she has tried to improve upon her statements is clearly brought out. She firstly feigns complete ignorance about Rajeshwari, whom she had named in her statement u/s.161 dated 05.07.2012, 09.07.2012 and 13.07.2012 and her statement u/s.164 CrPC dated 09.07.2012. She also claimed that she became unconscious while traveling in TSR with the accused but could not give details of things / substance that was given to her by the accused which made her unconscious. She also claims that she came to know accused 5/ 10 days prior to the incident and that he had not offered her anything to eat prior to that day. Regarding her passage to the village of accused, PW6 admitted that there were other passengers in the train as well as bus by which accused took her from railway station to the village. She also stated that she started crying in the train and when other passengers asked her, she told them that accused had brought her from Delhi. She further stated that said passengers consoled her and asked her to give her telephone number but she did not do so. She claimed that it was so as that male passenger was unknown to her and was going for an exam. On the one hand, prosecutrix went willingly with accused, a near stranger, to temple, without permission of her parents and on the other hand she was cautious enough SC No. 71/12 State Vs. Rajesh Sharma Page No. 30 of 40 31 not to solicit help of a fellow passenger even in a state of dire need. This conduct of prosecutrix is against the normal course of conduct of a girl, who is taken away forcibly by some one. The prosecutrix also stated that she was aware that train could be stopped by pulling the chain and that a ticket checker and other staff were available in the train. She then corrected herself by stating that she did not know that the train could be stopped by pulling the chain.
55 During her further crossexamination, prosecutrix stated that there was a lady with small children in the bus in which accused took her to his village and justified her conduct in not seeking that ladies help by saying that said lady was having small children. The prosecutrix then suddenly remembered details of her TSR journey with the accused as well. She stated that the temple did not fall on the way from which accused took her in TSR and that she asked accused as to where he was taking her and told him that she wanted to go to her parents but accused told her 'chalo mein tumhe apne gaon ghuma lau'. She further stated that she had asked the TSR driver to stop and that the said TSR driver told accused whatever was happening was not proper but accused told him 'inki toh adat hai bolne ka'. The prosecutrix admitted that she did not raise alarm in TSR or bus or the train and that she did not try to jump out of the running TSR.
56 The prosecutrix admitted the affidavit, alleged to have been SC No. 71/12 State Vs. Rajesh Sharma Page No. 31 of 40 32 sworn by her at Madhyapura after marriage with accused and admitted her signatures thereupon after which the said affidavit was exhibited as Ex.PW6/DA but she did not give any further explanation about the manner in which the said affidavit came to be executed. She also does not explain why she did not bring the conduct of accused to anyones notice when she went to execute affidavit Ex.PW6/DA and why she mentioned her age as 22 years in the said affidavit. The additions and improvements made by prosecutrix in her statements made her a completely unreliable witness whose testimony cannot be relied upon without independent corroboration but in the present case no such independent corroboration has been put forth. 57 The manner in which complainant came to know about whereabouts of accused and the prosecutrix also creates doubt regarding the case of the prosecution. On one hand, complainant claims that he was told about it by Mahender, chacha of accused, at the same time he states that he did not know said Mahender prior to the incident and that Mahender was called to PS by two boys, whom he did not know but who knew Mahender. On the contrary none of the police witnesses have mentioned about getting information of presence of prosecutrix with accused, at the native village of accused, from any Mahender. Further PW3 has stated that after reaching Madhyapura, they were taken to house of accused by Mahender whereas the police officials state that they were taken to the house of accused by officials of PS Gumahriya that is one Gramin Sewa Police official / police officials. SC No. 71/12 State Vs. Rajesh Sharma Page No. 32 of 40 33 There is also a gap in the chain of prosecution case for want of witnesses from the neighbourhood of the prosecutrix and accused at Delhi and the native village of accused at Chandan Patti, Surya Ganj, PS Gamhariya, District Madhyapura, Bihar. More particularly non joining / examining of Mahender, Chacha of accused, Pandit, who performed their marriage, and the person, who notorised affidavit Ex.PW6/DA of the prosecutrix, as witnesses is fatal to the prosecution case. Same holds true for not citing police officials of PS Gamhariya as witness (s) in the present case. The prosecution is full of loopholes which create considerable doubt about it. 58 In the case of State of Maharashtra Vs. Chandraprakash Kewal Chand Jain 1990 (1) SCC 550, the Apex Court held that a prosecutrix of a sexual offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence....... What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for SC No. 71/12 State Vs. Rajesh Sharma Page No. 33 of 40 34 corroboration........... If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted."
59 In case of Rai Sandeep @ Deepu Vs. State of NCT of Delhi (2012) 8 SCC 21, the Hon'ble Supreme Court commented about the quality of the sole testimony of the prosecutrix which could be made basis to convict the accused. The Hon'ble Supreme Court held as under : "22. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the SC No. 71/12 State Vs. Rajesh Sharma Page No. 34 of 40 35 time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the crossexamination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have corelation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be SC No. 71/12 State Vs. Rajesh Sharma Page No. 35 of 40 36 called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
60 In the case of Abbas Ahmed Choudhury Vs. State of Assam (2010) 12 SCC 115, while observing that a case of sexual assault has to be proved beyond reasonable doubt as any other case and that there is no presumption that a prosecutrix would always tell the entire story truthfully, the Hon'ble Supreme Court observed as under : "Though the statement of prosecutrix must be given prime consideration, at the same time, broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there could be no presumption that a prosecutrix SC No. 71/12 State Vs. Rajesh Sharma Page No. 36 of 40 37 would always tell the entire story truthfully. In the instant case, not only the testimony of the victim woman is highly disputed and unreliable, her testimony has been thoroughly demolished by the deposition of DW1."
61 Similarly, in case of Raju Vs. State of Madhya Pradesh (2008) 15 SCC 133, the Hon'ble Supreme Court held that the testimony of a victim of rape has to be tested as if she is an injured witness but cannot be presumed to be a gospel truth. Para 11 of the judgment is extracted hereunder : "11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming SC No. 71/12 State Vs. Rajesh Sharma Page No. 37 of 40 38 that the statement of such a witness is always correct or without any embellishment or exaggeration."
62 Thus, it is a settled legal position that even the uncorroborated testimony of the prosecutrix can be held to be sufficient to sustain conviction of an accused of rape, but then such testimony should be unflinching, consistent and infallible and inspire confidence of the court to believe her version. However, where such sole testimony of the prosecutrix is inconsistent, then the same by itself cannot be relied upon unless it is corroborated by other circumstantial evidence including medical evidence, otherwise it will be difficult for the court to sustain conviction for the offence of rape.
63 In the present case when we scrutinize the testimony of prosecutrix carefully we find that the same is full of contradictions and embellishments which make it difficult to rely upon her testimony alone to convict the accused Rajesh Sharma. Rather from the facts and circumstances of the present case more particularly testimony of prosecutrix, the element of 'taking away' or 'enticement' is found to be lacking. In view of the material on record, it appears that prosecutrix was willing and consenting party and it seems that everything has happened with her sweet will. In these circumstances, the factum of kidnapping of prosecutrix does not stand proved.
SC No. 71/12 State Vs. Rajesh Sharma Page No. 38 of 40 39 64 It would be relevant herein to refer to the case titled as "S. Varadarajan Vs. State of Madras, AIR 1965 SC 942", wherein while distinguishing between " taking" and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India that : "There is a distinction between " taking" and allowing a minor to accompany a person.
The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing , voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian."
65 The nutshell of foregoing discussion is that from the testimony of the prosecutrix as well as other material placed on record, the prosecution has failed to prove that accused had kidnapped prosecutrix on 26.06.2012 between 8:00 AM to 12:30 PM from jhuggi No.A94, Shahid Sukh Dev Nagar, WPIA, Delhi, and from lawful custody of her guardian or that he had kidnapped the prosecutrix with intent to force her or seduce her to have illicit intercourse or that he had compelled prosecutrix to marry him or that he also SC No. 71/12 State Vs. Rajesh Sharma Page No. 39 of 40 40 married with her in a temple. Accordingly, I acquit accused Rajesh Sharma of the charged offences, giving him benefit of doubt for the offences u/s. 363/366 IPC.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 19.10.2013) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
SC No. 71/12 State Vs. Rajesh Sharma Page No. 40 of 40
41
FIR No. 152/12
P.S. Ashok Vihar
17.10.2013
Present: Ld. Addl. PP for the State.
Accused produced from JC with counsel Sh. Baldev Sharan. Arguments heard.
Be listed for judgment on 19.10.2013.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 17.10.2013 19.10.2013 Present: Ld. Addl. PP for the State.
Accused produced from JC with counsel Sh. Baldev Sharan. Vide separate judgment, announced today in the open Court, accused Rajesh has been acquitted of the charged offence.
Accused is in custody, be released forthwith, if not wanted in any other case.
File be consigned to Record Room.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 19.10.2013 SC No. 71/12 State Vs. Rajesh Sharma Page No. 41 of 40