Delhi District Court
State vs : (1) Sanjay Kumar, on 7 August, 2007
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IN THE COURT OF SH. BHARAT PARASHAR, ASJ:FTC:ROHINI:DELHI
SC NO.: 155/06
STATE VERSUS : (1) SANJAY KUMAR,
S/O SH. OM PRAKASH,
R/O VILLAGE BARKA,
PS BARAUT,
DISTT. BAGPAT,
U.P.
(2) OM PRAKASH,
S/O SH. RAGHUBIR SINGH,
R/O VILLAGE BARKA,
PS BARAUT,
DISTT. BAGPAT,
U.P.
FIR NO.: 1265/05
PS : NANGLOI
U/S 363/366/34 IPC & 376 IPC R/W 109 IPC.
JUDGMENT
One Shanker Shah used to reside at H.No.1/120, Government Press Colony, Mayapuri, New Delhi along with his family comprising of his wife and four children. A tenant Sanjay Chauhan however was also residing in the said house along with his wife and a small daughter. On 23/12/05 at about 8am one Leela daughter of Shanker Shah aged about 12 years (name of the prosecutrix has been changed since it is a case U/S 376 IPC) left her house to go to her school. However, when she reached near Kakrola Mor, their tenant Sanjay Kumar met her and stated that he will get her married with his brother-in-law. However, when Leela refused then Sanjay Kumar again insisted upon her and forcibly made her to sit in 2 a bus and took her to Shahdra. He also on the way threatened her of dire consequences. At Shahdra, father of Sanjay Kumar, namely, Om Prakash met them and Sanjay Kumar accordingly handed over her custody to his father. Said Om Prakash thereafter took her to Barot in the house of one of his sister where they stayed in the night. In the night, Om Prakash however forcibly had sexual intercourse with her against her wishes and consent. In the meantime, upon reaching Barot, prosecutrix had a chance to make a call to her father and she informed him that she is at present at Barot. However, she could not tell any other facts as by that time accused Om Prakash had disconnected the phone call. Shanker Shah on the other hand however finding his daughter to be missing lodged a missing report with the police and even subsequently expressed his suspicion upon Sanjay with regard to the disappearance of his daughter. Said Sanjay was also apprehended by the police and during the course of interrogation he disclosed all the facts and took the police party to Barot and from their house got recovered the prosecutrix. Accused Om Prakash was also arrested from over there. Both accused Om Prakash and prosecutrix were got medically examined at Sanjay Gandhi Memorial Hospital. Statement of the prosecutrix U/S 164 Cr.PC was also got recorded. Their undergarments, semen and blood samples were collected and were sent for examination to FSL. Upon completion of necessary further investigation challan was prepared and filed against 3 both the accused persons for the offence U/S 363/366/376/34 IPC.
Upon committal of the case to the court of sessions while charge of the offence U/S 363/366/34 IPC and U/S 376 IPC read with Section 109 IPC was framed against accused Sanjay Kumar and as against accused Om Prakash charge for the offence U/S 363/366/34 IPC and for the offence U/S 376 IPC was framed. Both accused persons however pleaded not guilty to the charge and claimed trial.
Prosecution thereafter in order to prove its case examined nine witnesses. The two accused persons were thereafter examined U/S 313 Cr.P.C. They thereafter examined Rakesh and Naresh as DW1 and DW2 in their defence.
PW1 Leela was the prosecutrix herself. She in her deposition reiterated the prosecution story and also proved her statement made before the ld. MM U/S 164 Cr.PC. She specifically stated that accused Sanjay Kumar had forcibly taken her from Kakrola Mor to Shahdra and thereafter gave her custody to his father Om Prakash. She further stated that Om Prakash took her to Barot and over there he had sexual intercourse with her against her wishes.
PW2 Shanker Shah was the father of the prosecutrix, who had initially lodged the missing report of his father and thereafter had expressed his suspicion over Sanjay Kumar in that regard. He also reiterated the prosecution story. In his deposition while proving the various 4 reports lodged with the police by him and the subsequent recovery of the prosecutrix from Barot while being in the custody of accused Om Prakash.
PW3 HC Tariff Singh was the MHC(M), PS Nangloi with whom the various case property articles were deposited in the present case.
PW4 ASI Rajbala was the duty officer, PS Nangloi, who had recorded FIR Ex.PW4/A in the present case on 25-12-05.
PW5 Dr. Binay Kumar had initially examined the prosecutrix at Sanjay Gandhi Memorial Hospital and had thereafter referred her for gynaeco-logical examination to the lady doctor. He had also examined accused Om Prakash and had found nothing suggestive of the fact that he was not able to perform sexual intercourse.
PW6 Dr. Minakshi had carried out the gynaeco-logical examination of the prosecutrix vide her report Ex.PW5/A. PW8 Sh. AK Kuhar, the then ld. MM had recorded the statement U/S 164 Cr.PC of the prosecutrix. He accordingly proved his proceedings as Ex.PW8/A to C. PW9 Mrs. Krishna Shokeen was a teacher from Government Girls Sr. Sec. School, Najafgarh No.1 where prosecutrix used to study. She produced the admission record of her school vide which the date of birth of the prosecutrix was recorded as 12th May, 1993.
PW7 ASI Naresh Kumar was the IO of the case. In his deposition, he reiterated the investigation carried out by him besides proving the 5 various documents/memos prepared by him during the course of investigation.
Both the accused persons in their statements U/S 313 Cr.P.C. however stated the case of the prosecution to be false and the prosecution witnesses to be deposing falsely.
DW1 Rakesh was a neighbourer of accused Om Prakash in village Barot. He stated that on 25-12-05 on receipt of a call from Sanjay he along with Om Prakash came to PS Nangloi as Sanjay had informed that he has been apprehended by the police in this case. He further stated that upon reaching to Nangloi he was made to sign certain papers and he with accused Om Prakash has also been arrested and falsely implicated in this case.
DW2 Naresh was also a resident of village Barot, Distt. Barot, UP from where prosecutrix was allegedly recovered by the police. He further stated that his house was situated just opposite to the house of Om Prakash. He further stated that in connection with the present case, the Delhi Police never visited their village.
I have heard ld. APP as well as Ld. Counsel Sh. Jitender Kumar for both the accused persons.
It was submitted by ld. defence counsel that in fact prosecutrix ran away from her house along with some other boy and upon being apprehended by her parents she concocted the present false story. It was 6 further stated that it was highly unbelievable that a son will take a minor girl to his father to have sexual intercourse with her. It was also stated that it was highly improbable that accused Om Prakash will take the said minor girl to his own house in Barot or to the house of his relative and will have sexual intercourse with her over there in the same room where other relatives were also admittedly sleeping. It was further stated that not only the FSL result does not lend support to the prosecution case but, even the medical examination report of the prosecutrix does not lend any corroboration to the prosecution story. It was emphasized that the doctor herself observed that though the hymen of the prosecutrix was found to be torn but, it was old and already healed. A number of other contradictions were also pointed out to show that the conduct of prosecutrix all along the entire incident as narrated by her was highly unnatural and cannot be believed on the face of it. It was also stated that in the entire proceedings no public independent witness was joined by the IO. The prosecution was thus stated to have failed in proving its case against both the accused persons.
On the other hand, ld. APP strongly opposed the contentions of learned defence counsel stating that the prosecutrix has made a statement that accused Om Prakash raped her after accused Sanjay Kumar had forcibly taken her from her house. The prosecution evidence was stated to be cogent, convincing and reliable in nature. Accused 7 persons were thus prayed to be convicted.
I have carefully perused the record.
At the outset, I may state that I find myself in complete agreement with the contentions of learned defence counsel. No-doubt, the prosecutrix has stated that accused Om Prakash committed rape upon her but, her testimony does not inspire confidence at all. The reasons are ample and clear.
The very conduct of the prosecutrix in initially travelling along with accused Sanjay and thereafter with his father Om Prakash from Delhi to Barot in various buses and trains speak volumes about her tacit consent in accompanying the accused persons. As a word of caution, I may state that at present I am not yet drawing any conclusion that the prosecution has been successful in proving that prosecutrix was indeed taken away by accused Sanjay Kumar and his father Om Prakash to Barot but, I am entering into an analysis of the testimony of the prosecutrix on the presumption that even if this aspect of the prosecution case is presumed to be true then also she clearly appears to be a consenting party to all their acts.
Prosecutrix clearly was found to have gone to Kakrola Mor, a place which admittedly did not fall on her way to school from her house. This fact itself goes to show that the prosecutrix had gone to over there after prior understanding. Her statement that accused Sanjay Kumar was 8 already carrying her one suit along with him and which he had put in her school bag further goes to show that accused Sanjay Kumar was aware of this fact that prosecutrix will be going towards Kakrola Mor on that day and that he will be able to take her away from over there. Thus, it was for the prosecution to explain that in what circumstances she happened to go towards Kakrola Mor when she left her house for going to her school and also as to how this fact came to the knowledge of accused Sanjay Kumar that she will be available over there. Furthermore, from Kakrola Mor prosecutrix sat along with accused in a mini bus which was admittedly a crowded one and they thus alighted at Palam in the said mini bus. Moreover, as per PW2 Shanker Shah, the father of prosecutrix had received a phone call at his house from prosecutrix herself that she will not come back. He further stated in his cross-examination that after saying so his daughter disconnected the telephone call. Thereafter, since Shanker Shah was having a STD connection so, he immediately redialed on the said number and found that the said number was of a PCO booth at Dwarka Mor. He accordingly along with his son rushed over to the said PCO booth and the boy manning the booth informed him that one girl had come over there with a boy. Later on, Shanker Shah along with police had also taken accused Sanjay Kumar to the said PCO booth owner and where admittedly the PCO booth owner did not identify accused Sanjay Kumar as the boy, who had accompanied the 9 prosecutrix to his booth.
On the other hand, from Palwal prosecutrix admittedly sat along with the accused in a blue line bus and they went to Badarpur border and from where they again took another bus and went to Shahdra. From Shahdra they again took a tempo and then they went to a village outside Delhi where accused Om Prakash met them. Admittedly, at all such places and in all those buses, a large number of public persons were present but, the reasons put forward by the prosecutrix for not raising any hue and cry was simply that accused had threatened her that in case she will go back to her house then her father will kill her. Thereafter, from the said village accused Om Prakash allegedly took her to Barot and she further stated that though accused Om Prakash had not extended any threat to her but, accused Sanjay Kumar had told him that he has already extended threat to her. In the train to Barot also and at the railway stations also admittedly a number of public persons were present. Prosecutrix further stated that from village Barot, she had made a call to her father and had informed him that she was in Barot. It will be also worthwhile to mention over here that in her statement U/S 164 Cr.PC prosecutrix however did not utter even a single word of any threat having been extended to her by the accused persons at any point of time.
Apart from the aforesaid nature of evidence of the prosecutrix the subsequent part of her deposition also does not inspire confidence. 10 She stated that accused Om Prakash had taken her to a mud house in a gali and there was only one room in the house and even there was no kitchen. She further stated that in the said room the family was residing with their three/four small children. She also stated that in the said room they all slept in the night and in that room itself accused Om Prakash had sexual intercourse with her against her wishes and consent. She further stated that neither in the night at the time of incident she raised any hue and cry nor in the morning she stated anything to any one in that regard. From the said house accused Om Prakash allegedly took her to his house in Barot after travellling in a bus and where the wife and daughter of accused were present. From the said house accused Om Prakash allegedly took her to the house of his sister which was situated outside Barot again after travelling in a bus. It was from the said house that police allegedly recovered her. Prosecutrix also stated that at none of the aforesaid two places viz at the house of accused Om Prakash himself or at the house of his sister she stated anything to any person about the alleged act of accused Om Prakash having sexual intercourse with her.
From the aforesaid nature of deposition of the prosecutrix, it is per se unbelievable that a person aged about 60 years will procure the custody of a minor girl through his son and will take her to the house of his relatives to have sexual intercourse with her or that thereafter he will take her to his own house where admittedly his wife and daughter were 11 present and will thereafter take her to his sister's house. The aforesaid nature of deposition is clearly against the natural human conduct and defies all logic of reasonableness or probabilities.
In fact, at this stage, I may also state that a perusal of the nature of testimony of the various prosecution witnesses further goes to show that prosecutrix in fact was having some liking for the brother-in-law of accused Sanjay Kumar and probably she also left the house with the brother-in-law of accused Sanjay Kumar or she left the house on her own with a view to join his company.
Once again, I may state as a mark of caution that though this fact has been denied by the prosecutrix herself and on the other hand has not been also proved by the accused persons beyond shadows of all reasonable doubts but, a conclusion to this effect is clearly evident from the deposition of the various prosecution witnesses and their statements as were recorded during the course of investigation. PW1 prosecutrix herself stated in her examination-in-chief that when accused Sanjay Kumar met her at Kakrola Mor he told her that he will get her married with his brother-in-law. She though stated that she refused to do so and upon which accused Sanjay Kumar told her that his brother-in-law wants to marry her. Similarly, in her statement U/S 164 Cr.PC recorded during the course of investigation also she stated that the brother-in-law of accused Sanjay Kumar wanted to marry her and accordingly accused Sanjay 12 Kumar forcibly took her along with him.
At this stage, I may state that though this court would have proceeded to analyze and discuss this aspect, a bit further but since prosecutrix has not assigned any role much less any specific role to the brother-in-law of accused Sanjay Kumar in the entire episode so, in my considered opinion no fruitful purpose will be served by further discussing the prosecution case on the said aspect. However, it will be suffice to state that the aforesaid facts does provide some idea as to why prosecutrix probably left her house. I am also deliberately using the phrase that prosecutrix left her house because her father Shanker Shah himself stated in his deposition in the court that he had received a phone call from his daughter, who stated that she will not come back. Thus there does not appear to be any element of force or coercion upon the prosecutrix to be operating at the time when she left her house.
Coming back to the deposition of the prosecutrix viz a viz the allegations of rape qua accused Om Prakash, I may again state that not only the FSL report does not lend any support to her aforesaid claim but, even the medical examination report also does not corroborate this version of her. It was stated by PW6 Dr. Meenakshi that though the hymen of the prosecutrix was found torn but, the same was old and healed one. Thus, if the prosecutrix who allegedly was raped on the night intervening 23/24-12-2005 and was medically examined on 26-12-05 then her hymen 13 which was found to be torn by the doctor would not have been opined to be old or healed one. These facts further makes a dent in the prosecution story that accused Om Prakash committed rape with the prosecutrix. The doctors also did not find any external injury on the body of the prosecutrix.
In fact, PW2 Shanker Shah also stated that his daughter never stated to him that either accused Om Prakash or Sanjay Kumar ever tried to rape her or even raped her after she was recovered by the police from Barot in his presence.
I may also state that the prosecution witnesses have also contradicted each other as to the place and manner in which the recovery of prosecutrix was effected.
Prosecutrix in her deposition stated that the police found her at the house of sister of accused Om Prakash where he had allegedly taken her from his own house. On the other hand, PW2 Shanker Shah as well as PW7 IO/ASI Naresh Kumar both stated that prosecutrix was recovered from the house of accused Om Prakash himself. PW7 ASI Naresh Kumar even stated that when they reached the said house along with accused Sanjay Kumar then the wife of accused Om Prakash was present over there. Thus, these witnesses contradicted each other as to from exactly where the prosecutrix was recovered.
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Be that as it may be, from my aforesaid discussion of the nature of prosecution evidence led in the present case, it is crystal clear that it will not be safe to rely upon the uncorroborated testimony of the prosecutrix especially when her deposition fails to elicit any corroboration from any scientific or medical evidence. The prosecution in my considered opinion has thus miserably failed in proving its case against either of the two accused persons beyond shadows of reasonable doubts.
I accordingly hereby giving benefit of doubt to both the accused persons, namely, Om Prakash and Sanjay Kumar acquit them in the present case. Accused Sanjay Kumar is thus acquitted of the offence U/S 363/366/34 IPC and for the offence U/S 376 IPC r/w Section 109 IPC. Accused Om Prakash on the other hand stands acquitted of the offence U/S 363/366/34 IPC and for the offence under Section 376 IPC.
Accused Om Prakash be released from judicial custody if not required in any other case.
File be consigned to Record Room., Announced in the open court on 7-8-2007.
(BHARAT PARASHAR) ADDITIONAL DISTRICT & SESSION JUDGE FAST TRACK COURT:ROHINI:DELHI 15 FIR NO.: 1265/05 PS : NANGLOI U/S 363/366/34 IPC & 376 IPC R/W 109 IPC.
7-8-07 Pr. Addl. PP for the State.
Accused Sanjay Kumar is present on bail.
Accused Om Prakash is present in JC.
Vide my separate detailed order dated 7-8-07 accused Sanjay Kumar has been acquitted of the offence U/S 363/366/34 IPC and for the offence U/S 376 IPC r/w Section 109 IPC.
Accused Om Prakash has been acquitted of the offence U/S 363/366/34 IPC and for the offence under Section 376 IPC.
Accused Om Prakash be released from judicial custody if not required in any other case.
Documents of surety, if any be returned forthwith. File be consigned to Record Room., Announced in the open court on 7-8-2007.
(BHARAT PARASHAR) ASJ:FTC:ROHINI:DELHI