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Delhi District Court

State vs . Naresh S/O Panna Lal, R/O Village on 6 October, 2007

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IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS
         JUDGE : KARKARDOOMA COURTS : DELHI :

Sessions Case No. 127/06
Date of Institution :­ 24.07.06
Date on which reserved for order :­ 05.09.07
Date of Delivery of Judgement :­ 06.10.07

State      Vs.         Naresh S/o Panna Lal, R/o Village 
                       Mesravali, PS Tigau, Distt. Faridabad, 
                       Haryana.

           FIR No. 218/06
           PS Kalyanpuri
           U/S 376/506/313/318 IPC.

J U D G E M E N T :

­ Naresh runs his factory at village Khichripur, where he prepares raw material for chutki pan masala. He used to give chhuwaras to various natives of village, Khichripur, for getting it cut on job work. Kumari Renu, daughter of Sadhu Singh, also used to cut chhuwaras on job work. Her brother, Vijay, was also employed in the factory of Naresh. Naresh was having an evil eye on Kumari Renu. He asked her for sexual favours. Ultimately, he succeeded in developing physical relations with Kumari Renu on 12.12.05. Kumari Renu became pregnant. She told Naresh about that fact. On 26.04.06, Naresh gave some pills to Kumari Renu for consumption. She consumed those pills and aborted on 27.04.06. Foetus aborted by Kumari Renu was put in a towel and ­2­ kept on a handcart, parked inside compound of Paras Ram Ka Makan, Main Road, Khichripur. Danish, who runs a general store in village Khichripur, noticed that foetus lying on the handcart. He gave a telephone call to police control room. Message was passed on to local police station and ASI Abdul Wahid reached the spot. Danish got recorded his statement and case for an offence punishable under section 318 of the Penal Code was registered.

2. During the course of investigation, Kumari Renu was interrogated. Her statement was recorded, wherein she unfolded that she was sexually exploited by Naresh on 12.12.05 in his factory during day hours. He criminally intimidated her of instant death of her brother Vijay, in case she dares to disclose those facts before anyone. She became pregnant. On 26.04.06, Naresh gave her some pills, on consumption of which she aborted the child. Naresh reached her parents house and informed her that he had concealed the foetus. Thereafter, she went to house of her maternal uncle. Statement of Kumari Renu was got recorded under section 164 of the Code of Criminal Procedure, 1973 (in short the Code). Foetus was sent to LBS Hospital for autopsy examination.

­3­ Kumari Renu was also sent to LBS Hospital for medical examination. Naresh was arrested and sent to hospital for medical examination. Investigation culminated into a charge­ sheet against the accused.

3. Charge for offences punishable under sections 376, 506, 313 and 318 of the Penal Code was framed against the accused, to which charges he pleaded not guilty and claimed trial.

4. To substantiate the charges, prosecution has examined Dr. R.L. Dass (PW1), Shiv Om, Constable (PW2), Danish (PW3), Kumari Renu (PW4), Sadhu Singh (PW5), Jagdish (PW6), Dr. Meeta Sharma (PW7), Dr. Vinay Kumar Singh (PW8), Krishna, Head Constable (PW9), Vindhyachal Singh, Constable (PW10), Ombir, Constable (PW11), Sanjeev, Constable (PW12), Raj Kumar (PW13), Bhanu Pratap, Constable (PW14), Inder, Constable (PW15), Sh. Ajay Gupta, Metropolitan Magistrate (PW16), Abdul Wahid ASI (PW17) and Veer Sain, Head Constable (PW18) in the case.

5. Shiv Om, Constable, had gone to Paras Ram Ka Makan in village Khichripur, Delhi, on 27.04.06. He unfolds that a foetus was lying on handcart parked in open portion of that ­4­ house. He took photographs, which are Ex.PW2/A1 to Ex.PW2/A3. In subsequent breath, he explains that these photographs were not taken by him. According to him, photographs Ex.PW2/C1 to Ex.PW2/C3 were taken by him, negatives of which are Ex.PW2/B1 to Ex.PW2/B3. Krishna, Head Constable, joined investigation on 28.04.06. She took Kumari Renu to LBS Hospital for medical examination. She unfolds that parcels were handed over to her by the doctor, after medical examination of Renu. Those parcels were placed by her before the IO, who seized it, vide memo Ex.PW9/A. Vindhyachal, Constable, unfolds that accused Naresh was arrested on 28.04.06 at the instance of Kumari Renu. His arrest memo was prepared, which is Ex.PW4/A. Ombir, Constable, joined investigation and detailed investigative steps, which were taken by the IO in his presence. Sanjeev, Constable, joined investigation, in whose presence a plastic container was seized by Abdul Wahid ASI, which was brought by Inder, Constable, from hospital after autopsy examination of foetus. Bhanu Pratap, Constable, speaks that accused Naresh was got medically examined. After his medical examination, two parcels were handed over to him by the doctor. He placed ­5­ those parcels before the IO, who seized it vide memo Ex.PW14/A. Inder, Constable, gives confirmation to facts testified by Sanjeev, Constable, and deposed that he brought one jar from the hospital, which was seized by investigating offier. Veer Sain, Head Constable, was working as duty officer, who recorded formal FIR. He proved carbon copy of FIR as Ex.PW18/A. Abdul Wahid ASI had conducted investigation of the case. He detailed all investigative steps, which were taken by him. According to him, foetus was lying on a handcart, standing on a vacant portion adjacent to the house of Paras Ram Ka Makan, Village Khichripur, Delhi. Foetus was seized and sent for autopsy examination. Kumari Renu was examined by him and at her instance, accused Naresh was arrested.

6. Dr. R.L. Dass had examined accused Naresh in LBS Hospital on 29.04.06. He proved his MLC as Ex.PW1/A, wherein it has been opined that there was nothing to suggest that accused Naresh was not capable to perform sexual intercourse. Dr. Meeta Sharma had examined Kumari Renu in the hospital on 28.04.06. She unfolds that Kumari Renu gave a history of sexual assault by her neighbour in December, 2005 as a result of which she conceived and aborted a male child on ­6­ 28.06.06 around 11am and threw it in a nearby house. She had prepared her MLC, after her medical examination. Dr. Meeta Sharma had proved that MLC as Ex.PW7/A. Dr. Vinay Kumar Singh had conducted autopsy on dead body of an unknown male foetus. He proved autopsy report as Ex.PW8/A and opined that cause of death was on account of pre­mature delivery.

7. Raj Kumar was brought in the witness box from Institute of Open School, Noida, U.P. He explained that Kumari th Renu, daughter of Sadhu Singh, applied for admission in 10 standard for academic session, 2004­05 in National Institute of Open Schooling. She gave her date of birth as 07.06.87. He proved attested copy of her application form as Ex.PW13/A. He th declares that she passed 10 standard examination and mark sheet was issued in that regard, which is Ex.PW13/B. Copy of school leaving certificate was annexed by her along with her admission form Ex.PW13/A, which is Ex.PW13/C. From facts testified by Sh. Raj Kumar, prosecution brought it over the record that on 12.12.05, Kumari Renu was 18 years, 6 months and 5 days old.

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8. Sh. Ajay Gupta, Metropolitan Magistrate, had recorded statement of Kumari Renu under section 164 of the Code on 04.05.06. He presents that on being satisfied that Kumari Renu was making a voluntarily statement, he recorded her statement which is Ex.PW4/C. He gave certificate Ex.PW16/C underneath the said statement. Sadhu Singh unfolds that his daughter Kumari Renu aborted premature child. After postmortem, said foetus was released in his favour vide memo Ex.PW5/A. Jagdish gives confirmation to facts testified by Sadhu Singh in that regard. Danish unfolds that he noticed a foetus, lying on a handcart wrapped in a towel. He passed on information in that regard to police and got recorded his statement Ex.PW3/A. Kumari Renu is the star witness of the prosecution, who has been examined to prove facts of the case. She details that she was doing job work in the factory of Naresh Dixit. Naresh Dixit used to ask her for a coitus. She never accepted his proposal. On 12.12.05 at about 1.30pm, Naresh had sex with her forcibly. He criminally intimidated her not to disclose facts before anyone. When she did not have menstruation for two or three months, she told accused about those facts. On 26.04.06, he gave her medicine, which she ­8­ consumed. On 27.04.06, she became semi­conscious, when accused reached there and inquired her well being. When she regained consciousness, she found herself bleeding. Accused told her that he had concealed the foetus.

9. In order to afford an opportunity to explain circumstances appearing in evidence against him, accused was examined under section 313 of the Code. He admits that Kumari Renu was working in his factory and maintaining accounts register pertaining to chhuwaras, distributed to other workers. She had worked with him for about one and half years. Her brother Vijay was also working in his factory. He denied that he had coitus with her on 12.12.05. He further denied that when Kumari Renu became pregnant, he gave her pills to consume on 26.04.05. He further denied that on account of consumption of those pills, she aborted. He denied that he went to her house to inquire about her well being and told her that he had concealed the foetus. According to him, chhuwaras were being pilferred from his factory. He summoned Sadhu Singh and his wife and told them that their children were responsible for theft. He asked them to settle his accounts. They quarreled with him. They started bearing ­9­ grudge against him and framed him in the case. He presents that Kumari Renu had deposed false facts against him. He claims himself to be innocent. He has examined one Nikesh Chand in support of his defence.

10. Arguments were heard at the bar. Sh. R.K. Pandey, ld. Prosecutor, had presented facts on behalf of the State. Sh. Anupam Sharma, Advocate, had advanced arguments on behalf of the defence. I have given my careful considerations to the arguments advanced at the bar and cautiously persued the record. My findings on the issues involved in the controversy are as follows :­

11. Kumari Renu deposed that she used to do job work for the accused in his factory. She used to obtain chhuwaras from there for cutting purpose. She was working there from lase one and a half years. She used to earn Rs.100/­ per day from job work, which she was doing for the accused. Accused used to ask her to have coitus with him. She used to decline his proposal. On 12.12.05 at about 1.30pm, she went to the factory of accused to return chhuwaras, after cutting it. Accused was alone in his factory. When she was returning back, accused had sex with her forcibly. He criminally intimidated her ­10­ that in case she would divulge facts of the aforesaid incident to anyone, then he would kill her elder brother Vijay. Vijay was working in the factory of accused. She had not divulged those facts before anyone, on account of threats extended by the accused.

12. Question for consideration comes as to whether facts unfolded by Kumari Renu are acceptable on its face value? For an answer to this proposition, facts unfolded by Kumari Renu are to be appreciated on standards of ordinary human behaviour and tenets of veracity. She admits in her cross­ examination that factory of accused is located in Village Khichripur, which is thickly populated area. A dairy is adjacent to the factory of accused. There is a room adjacent to his factory. Buffaloes are tethered in front of factory of accused. Owner of the dairy and his servant remain present in the dairy, which is being run in front of the factory of accused. There is a house in front of the said factory, where one family along with their children reside. Said house is 7­8 spaces away from factory of the accused. She admits that there are adjacent houses to the factory of accused. Out of these facts, it came to light that factory of accused is located in a thickly populated ­11­ area and around 1.30pm various public persons remain present in near vicinity of the said factory.

13. Kumari Renu projects that accused forcibly had sex with her, when she was about to leave his factory on 12.12.05. She unfolds that door of the factory was open at that time. She admits that on 12.12.05, she recorded entries in the register concerning chhuwaras, which were given to various ladies for cutting purpose. From these facts, it surfaced over the record that the girl had stayed in the factory of accused for a longer period. She admits that she had not raised any hue and cry or resisted advances made by the accused. When door of the factory was lying open and there were public persons in near vicinity, it does not appeal to senses that Kumari Renu was subjected to forcible coitus by the accused against her will. It is the case of prosecution that till 27.04.06, Kumari Renu had not unfolded facts to anyone about her sexual exploitation at the hands of accused. Her conduct, in not raising hue and cry and putting resistance to advances by the accused, is suggestive that Kumari Renu was a consenting party to the coitus, which she had with accused. It would not satisfy standards of veracity, when the girl says that door of the factory were lying ­12­ open and the accused had sex with her forcibly against her will. She had not invited attention of the persons present in near vicinity of factory, when her honour was put to stake. All these circumstances are suggestive that theory of forcible sex have no legs to stand. Kumari Renu had sex with accused of her own free will. After having sex with accused, she took 300 Kgs of chhuwaras for the job work that day. Apparently, such a huge load of chhuwaras, she could not take to her house on her head. She might have called a rickshaw or handcart to transport that load of chhuwaras to her house. She had not made any complaint to that rickshaw wala or handcart owner about that sexual exploitation. Her parents were never informed by her about the said incident. She never took any steps to initiate legal action against the accused. Cumulative effect of all these circumstances bring it to the light of the day that accused had coitus with the girl with her sweet will and free consent. As testified by Raj Kumar, she was major on 12.12.05 and competent to consent for sex. Under these circumstances, it is concluded that testimony of Kumari Renu is not acceptable at its face value, when she deposed that accused had sex with her against her will. She was a consenting party to that ­13­ episode and no offence of rape was committed.

14. Kumari Renu unfolds that she did not have menstruation for a period of two or three months. She told those facts to the accused. Accused told her that she should not narrate those facts to anyone. On 26.04.06, accused gave medicine to her, which medicine was consumed by her. On 27.04.06, she was lying on a cot in the room of her sister­in­ law, located on first floor of Paras Ram Ka Makan, village Khichripur, Delhi. Accused reached there to inquire about her well being. She became semi­conscious and when she regained her consciousness, she found blood come out of her private parts. Accused was present there in the room at that time. He told hat she had aborted and he had concealed the foetus. Thereafter, accused left. On the same day, she went to house of her maternal uncle, located in neighbourhood.

15. Whether facts testified by Kumari Renu are nearer to truth. She projects that she was present in the room of her sister­in­law, where accused reached on 27.04.06. Accused inquired her well being and remained present in the room. According to girl, she became semi­conscious and when she regained her consciousness, she found accused present there.

­14­ At that time, she was bleeding. Accused told her that she had aborted and he had concealed the foetus. She nowhere tells as to where her sister­in­law (Bhabhi) or other members of the family were present, when accused was there in the room. According to facts unfolded by her, accused remained in the room till she regained her consciousness. She might have remained unconscious for considerable period, for which period accused remained in that room, unfolds the girl. Neither facts detailed above are found in consonance with ordinary human behaviour nor those facts withstand standards of veracity. She claims that the accused remained present in the room of her sister­in­law for a longer period without being noticed there by her sister­in­law or other members of her family. Accused was not supposed to take such risk, when he had already given pills to the girl on 26.04.06. She presents that when she regained consciousness, she was told by the accused that she had aborted and he had concealed the foetus. As projected by Danish, Ombir Singh Constable, Shiv Om Constable and Abdul Wahid ASI, foetus was lying on a handcart, wrapped in a towel, which handcart was parked in an open space which was part of the house of Paras Ram Ka Makan, where Kumari Renu was ­15­ residing along with her family members. Thus, it is evident that foetus was kept on handcart, wrapped in a towel, in the very premises, where Kumari Renu was residing. It cannot be said that it was concealed in such a situation as it could not be located by anyone. Therefore, facts projected by Kumari Renu to the effect that accused told her that he had concealed foetus are not substantiated by surrounding circumstances projected by the aforesaid witnesses. Consequently, it is evident that Kumari Renu had projected facts which are not in consonance with natural course of events and tenets of veracity. It cannot be concluded that Kumari Renu is a wholly reliable witness.

16. Kumari Renu claims that on 26.04.06, accused gave medicine to her, saying that she should consume it. According to her, those pills were consumed by her. She nowhere explains that pills were consumed by her on 26.04.06 or on 27.04.06. However, she claims that she aborted foetus on 27.04.06. Those facts suggest that she consumed those pills on 27.04.06. She does not explain as to why she had not consumed pills on 26.04.06. In absence of explanation in that regard as to why she had not consumed those pills on 26.04.06, it emerges that theory projected by Kumari Renu to ­16­ this effect that those pills were given to her by the accused is neither probable nor correct.

17. As unfolded by the girl, she became pregnant. She did not have menstruation for two or three months and came to know that she had conceived. Kumari Renu was unmarried. When an unmarried girl becomes pregnant, she is put to risk of being ostracized by society or even by her near and dear ones. Her honour is put to stake. That stage causes mental agony to her and she wants to get rid of that child. Therefore, it is evident that Kumari Renu wanted to abort that child. It is not the case that Kumari Renu wanted to keep that child. In such a situation, it is evident that Kumari Renu was willing to miscarriage that child. When she miscarried that child, she concealed those facts from all and sundry and went to house of her maternal uncle on that very date. All these circumstances are suggestive that Kumari Renu fell within the mischief of law, since she concealed miscarriage of that foetus, when its dead body was secretly disposed of. In that situation, she was guilty associate or partner in the crime with anyone, who is believed to have made her to miscarriage that child. As detailed above, her testimony is not wholly reliable on the episode as to how ­17­ miscarriage took place. Consequently, I am of the view that it would be expedient to insist for corroboration of facts testified by Kumari Renu to the effect that it was accused, who gave her pills to consume and on consumption of those pills, she aborted and accused told her that he had concealed the foetus. Kumari Renu was interested in to save her honour and with that idea in her mind, she was prone to fabricate facts. She nowhere explains as to why she had not consumed pills on 26.04.06, the date when it was allegedly given to her by the accused. No explanation is forthcoming from her testimony as to where her sister­in­law (Bhabhi) and other members of family had gone, when accused came to her house and stayed there for a considerable period. She also does not explain as to how her sister­in­law and other members of family could not get any clue that she had aborted a foetus that day. Though, she presents that she bleeded a lot, yet she nowhere explains as to who cleaned the floor as well as her clothes after abortion of foetus. Why and how her sister­in­law and other members of family remained ignorant of that fact. No explanation is coming from her mouth. What was their reaction, when they saw her soon after abortion, since her condition would have deteriorated ­18­ after that event. Not even a word has been spoken by the girl on these issues. Therefore, it is evident that events unfolded by her nowhere satisfies standards of veracity. Picture portraited by her is farther from truth. Prudence requests me to insist for corroboration of her testimony on those counts. When no corroboration is coming forth, I am of the considered view that it would be highly unsafe to rely on uncorroborated testimony of Kumari Renu on those issues.

18. When testimony of Kumari Renu falls within the ambit of doubt and distrust, it cannot be said that it was the accused, who voluntarily caused her to miscarry that foetus, without her consent. No evidence worth name came over the record to show that it was the accused, who secretly and wrongfully disposed of dead body of that foetus with intent to conceal its birth. Facts projected by Danish and the aforesaid police officials highlight that foetus was lying in compound of Paras Ram Ka Makan, where Kumari Renu was residing with her family members. All these circumstances probablize that involvement of accused in the crime is not a reality.

19. It has emerged over the record that Kumari Renu made a statement Ex.PW4/D5, on which her father and uncle were ­19­ made attesting witnesses. Sadhu Singh admits that Kumari Renu was instructed by police to adhere to statement made in Ex.PW4/D5. Jagdish also gives confirmation to facts in that regard. He went on to depose that police instructed Kumari Renu to adhere to statement recorded in Ex.PW4/D5 and in case of her diversion, Kumari Renu, her uncle and father would be sent to jail. From these facts, it is apparent that Kumari Renu, her father and uncle were put under pressure by police to tow a particular line. Consequently, it is evident that Kumari Renu was under fear to adhere to facts detailed in Ex.PW4/D5. It highlights that Kumari Renu, her uncle and father were made to believe that in case some other story would be projected, then they would be sent behind the bars. That situation smack that investigating officer had not allowed this witness to give natural version before the Court. It seems that Kumari Renu had fabricated a story with a view to slip out of mischief of provisions of section 318 of the Penal Code. These circumstances give death knell in the coffin of prosecution.

20. Nikesh Chand unfolds that when foetus was found lying on a handcart, kept in a towel, Sadhu Singh told that it was kept there by him. Sadhu Singh wanted to take it for ­20­ cremation. He presents that Sadhu Singh had gone to collect a spade, till then he kept the foetus on a handcart. Police had not allowed Sadhu Ram to remove that foetus for purpose of cremation. Facts projected by Nikesh Chand are probable and trustworthy. It is crystal clear through testimony of this witness that Kumari Renu aborted that foetus, which fact was within the knowledge of her father. Her father wanted to cremate it, hence he had put it on the handcart duly wrapped in a towel. He had gone to bring a spade and by that time Danish reached there and located that foetus, lying on a handcart, wrapped in a towel. Since Danish informed the police, Sadhu Ram could not cremate that foetus. That story is probable. When police reached there, facts were fabricated by Kumari Renu in a bid to save her skin. Police put Kumari Renu under pressure by recording her statement Ex.PW4/D5, which was signed by her, her uncle and father. These instances reflect on the investigation too.

21. In view of foregoing reasons, I am of the considered opinion that story projected by Kumari Renu is not to be believed. Events unfolded by Nikesh Chand are more probable and trustworthy. Consequently, facts testified by Kumari Renu ­21­ are discarded, for desideratum of corroboration from some other independent piece of evidence. By awarding benefit of doubt, accused is acquitted of the charges. He be set at liberty, if not wanted in any other case. File be consigned to Record Room.

Announced in the Open Court (Dr. R.K. Yadav) th On this 6 day of October, 2007. Additional Sessions Judge :

Karkardooma Courts, Delhi.