Delhi District Court
Sc No. 222/09 State vs Anil Kumar Page No. 1 Of 20 on 21 December, 2013
IN THE COURT OF ADDITIONAL SESSIONS JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET
COURTS: NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
CASE ID NO. 02403R0919892008
SESSIONS CASE NO. 222/09
FIR NO. 669/06
POLICE STATION : BADARPUR
UNDER SECTION : 363/366 IPC
STATE
VERSUS
1 ANIL KUMAR,
S/O LATE RAMSEWAK,
R/O - F14, HARI NAGAR EXTN. NEAR
PRIMARY SCHOOL BADARPUR, NEW DELHI.
DATE OF INSTITUTION : 24.10.2008
DATE OF RESERVING ORDER : 29.11.2013
DATE OF DECISION : 21.12.2013
J U D G M E N T
Case of Prosecution:
1 On 15.08.2006 vide DD No. 27B dated 15.08.2006 SC No. 222/09 State Vs Anil Kumar Page No. 1 of 20 complainant Rampal S/o Sh. Hariram came to police station and lodged a missing complaint of his daughter namely 'X' (name withheld to keep her identity confidential). Complainant stated that on 15.08.2006 he along with his wife had gone to their relative and his daughter namely 'X' and son were present in the house. When they returned to their house her daughter namely 'X' was not found in the house. His son told him that prosecutrix 'X' left the house saying that she will come back but she did not return home. He further came to know that one person namely Anil, who reside in their neighbourhood is also not traceable and then he made suspicion that the said person namely Anil had taken her daughter namely 'X' with him. Case was registered under section 363 IPC. W.T. Messages were sent and accused and prosecutrix were searched. Both the prosecutrix and accused were recovered from Bus stand, Sangam Vihar.
Investigation of the case was handed over to W/ASI Surekha. Medical examination of prosecutrix was got conducted at AIIMS Hospital. Accused was also arrested and was got medically examined. Statement of prosecutrix under section 164 Cr.P.C was got recorded. Thereafter, statement of witnesses were got recorded by the Investigating officer and after completion of investigation, charge sheet under Section 363/366 IPC was filed against the accused in the court.
2 Since the offence under Section 366 of IPC is exclusively triable by the court of Sessions, therefore, after supply of documents, Ld. SC No. 222/09 State Vs Anil Kumar Page No. 2 of 20 Metropolitan Magistrate committed the case to the court of Sessions. Charge against the accused:
3 Prima facie case under section 363/366 IPC was made out against the accused. Charge under Section 363/366 IPC was framed upon the accused by my Ld. Predecessor court vide order dated 21.03.2012 to which he pleaded not guilty and claimed trial.
Witnesses Examined:
4 In support of its case, prosecution has examined eleven witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under: Material Witnesses:
5 PW1 is prosecutrix herself. She deposed that in the year 2006 she was studying in 10 th class. She used to know the accused prior to the incident as the accused used to reside near the house of her mausi. On 15.08.2006 at about 10.30 AM she was going to the house of her mausi. On the way she saw the accused Anil and his brother Sunil, standing near a car. When she reached near the case accused Anil put a handkerchief on her mouth and dragged her inside the car. She became unconscious and when she regained consciousness she was lying under a bed in the house of sister of accused Anil in Sangam Vihar. The accused again put a handkerchief on her nose and she again became unconscious. When she regained her consciousness she was in a car and from the SC No. 222/09 State Vs Anil Kumar Page No. 3 of 20 conversation of accused Anil and his brother Sunil came to know that she was in Rajasthan. The accused persons took her to a room where a shutter was installed where accused Anil committed rape with her. The accused persons kept her at the said place for about one month. Thereafter, they again made her conscious and when she regained her consciousness she was in Hathras. At Hathras, the accused persons used to harass and beat her. They also put a knife on her neck and asked her to do on their dictation. At Hathras they took her to the court where her signatures were obtained on blank papers. Thereafter, the accused persons took her to Rajgath, District Bulandshehar, UP in unconscious condition where she was mercilessly beaten by shoes. The accused persons put a burning match stick on her eyebrows. After keeping her at Rajgath for few days, they brought her to Sangam Vihar by making her unconscious where mother of accused Sushila, two sisters Usha, Urmila, Kavita, one Ajay, Raj Kumar and Pappu (brother in laws of accused) were present and all of them misbehaved with her and abused her. The said persons took along with accused Anil took her to Arya Samaj Mandir where they got her marriage solemnized with accused Anil Kumar against her wishes by keeping the knife on my neck. They also took the photographs of the marriage and compelled her to write that the marriage was with her consent. Accused persons then took her from Arya Samaj Mandir to Rajgath, District Bulandshehar, UP where they stayed for 2025 SC No. 222/09 State Vs Anil Kumar Page No. 4 of 20 days. The accused persons again brought her to Sangam Vihar and kept there for four days. During her stay with the accused at Rajgath as well as at Sangam Vihar, the accused had sexual intercourse with her many times without her consent. Thereafter, police came to Sangam Vihar and recovered her. She was then taken to Hospital and the police person had intimidated her to tell to the doctor that she do not want to undergo medical examination and accordingly, she told the doctors. She was also taken for her statement before the magistrate where also police persons intimidated her and whatever the police persons had asked her to reveal, she said the same thing to the magistrate. The police person namely Surekha even beaten her and police person namely Mahender Singh Dahiya also intimidated her. She came to the house of her parents. Even thereafter, accused started harassing her and threatening her. On 11.08.2007 accused also hit her by a stone and on 01.12.2008 accused had met her on way and intimidated her to deface her by throwing acid on her face. On 07.03.2009 the sisters in law came to her house and had beaten her. Accused had also beaten her brother twice mercilessly. Accused also used to threaten her that he will throw acid on her face if she depose anything before the court.
6 PW2 is Ram Pal Singh, complainant of the case. He deposed that on 15.08.2006 he along with his wife Savitri had gone to the house of his sister leaving her daughter and son in home. Her daughter SC No. 222/09 State Vs Anil Kumar Page No. 5 of 20 was aged about 17 ½ years at that time. When he returned back, his son told him that prosecutrix 'X' had gone from home stating that she will be back after sometime, but she did not return. He made efforts to locate her daughter but she could not be located. They went to the police station and were there for about four hours but nobody lodged their complaint. On 21.08.2006, Smt. Prem Lata, sister in law of the accused told him that accused Anil had taken her daughter. He reported the matter to the police but police did not lodge his complaint. He approached Human Rights Commission where he was made to give a written complaint and thereafter, on 24.08.2006 he met DCP. On 28.08.2006, he was called up in the police where his signatures were obtained on a blank paper. He proved the complaint on record Ex.PW2/A but stated that the contents of the complaint were not told by him to the police. He approached the Police Commissioner. The family members of the accused came to their house and threatened them and told them that his daughter is in their custody and also threatened to kill him. The copy of FIR was supplied to him on 03.10.2006. The police did not inform him about the recovery of his daughter. On 27.10.2006 he went to police station where all the family members including accused Anil Kumar and his daughter were sitting. The IO and other police officials did not inform him about anything. His daughter was released from the court to him. Ld. APP for the state cross examine the witness as he resiled from his statement but nothing material SC No. 222/09 State Vs Anil Kumar Page No. 6 of 20 has come on record in the cross examination.
7 PW3 is Smt. Savitri Devi, mother of the prosecutrix who deposed that on 15.08.2006 she along with her husband had gone to the house of her Nanad leaving her daughter and son at home. When she returned back with her husband, her son told them that prosecutrix 'X' had gone from home stating that she will be back after sometime, but she did not return. She along with her husband made efforts to locate her daughter but she could not be located. After about eight days while searching the prosecutrix, the sister in law of the accused namely Smt. Prem Lata met them and informed them that her brother in law (Devar Anil Kumar ) had taken her daughter Bharti and it was a pre arranged programme. Smt. Prem Lata also requested not to disclosed her name otherwise she will be killed in her house. She also informed them that accused will sell her daughter and that they should get their daughter back. They went to the police station but police did not hear them. They also approached Human Rights Commission and Woman Commission but to no avail. After about 2 ½ months her daughter was recovered but police did not inform them. She accompanied her daughter for medical examination but the police manipulated the MLC and suo moto did not get the gynae test of her daughter done. They received their daughter from the court. She stated that accused persons caught her son after about one month with the intention to kill him, but somehow he escaped. SC No. 222/09 State Vs Anil Kumar Page No. 7 of 20 The police did not hear them. Accused Anil had also beaten her son. Police never lodged their complaint whenever we visited the police station against the accused persons. Accused persons threatened to kill them if they report the matter to the police. Accused was correctly identified by the witness in the court.
8 PW8 is SI Surekha, Investigating officer of the case. She deposed that on 29.10.2006 he along with IO ASI Mahender Singh along with mother of the accused has gone to Sangam Vihar where the accused along with the prosecutrix were found alighting from the TSR near the bus stand. The accused was apprehended at the pointing out of his mother and the prosecutrix was recovered from his possession. They brought the accused and prosecutrix to the police station and the investigation of the case was handed over to her. She interrogated the accused and arrested him. Prepared arrested memo and conducted his personal search. Statement of prosecutrix under section 161 Cr.P.C were got recorded and also got the accused medically examined. After the medical examination of accused and prosecutrix, sealed pullandas duly sealed with the seal of hospital were handed over to her. Exhibits were sent to Malkhana. She recorded the statement of public and police witnesses and submitted the charge sheet. She had duly proved on record all the exhibits in this regard.
9 PW10 IO/SI Mahender Singh who deposed that on SC No. 222/09 State Vs Anil Kumar Page No. 8 of 20 15.08.2006 DD No 27B regarding missing of prosecutrix namely 'X' was entrusted to him for enquiry. He made efforts to locate the prosecutrix and to apprehend the accused but could not found them. On 28.08.2006 the father of the prosecutrix namely Sh. Rampal came to police station and made his statement wherein he suspected accused Anil to be the person to have kidnapped his daughter. He prepared rukka Ex.PW10/A and handed over the same for registration of case. He made enquiries and recorded the statement of complainant as well as mother of the prosecutrix. Father of the prosecutrix gave him admit card and progress report of the school of the prosecutrix showing her date of birth as 13.11.1988. On 29.10.2006 mother of accused Anil told him that his son will come to Sangam Vihar. He told the same to SHO and on his instructions, he along with W/ASI Surekha and the mother of the accused reached at Sangam Vihar where at the pointing out of his mother, accused Anil was apprehended near a bus stand in Sangam Vihar. Prosecutrix was also with the accused at that time. Investigation was then handed over to W/ASI Surekha. Accused was arrested and his personal search memo and arrest memo were prepared. PW10 has duly proved on record all the memos in this regard.
Formal Witnesses:
10 PW4 is HC Jayanti Prasad who deposed that on 28.08.2006 upon receipt of rukka Mark X through ASI Mahender Singh, he recorded SC No. 222/09 State Vs Anil Kumar Page No. 9 of 20 the formal FIR. The carbon copy of FIR is Ex.PW4/A. After registration of the FIR he handed over the rukka and copy of rukka back to Ct. Dinesh who took the same to ASI Mahender Singh, Investigating officer. His endorsement on rukka is Ex.PW4/B. 11 PW5 is L/HC Urmila who deposed that she joined the investigation. She took the prosecutrix along with her mother to AIIMS Hospital and got her medically examined. Thereafter, she handed over one sealed pullanda along with the sample seal, given to her by the doctor , to the IO. She has duly proved on record Ex.PW5/A. 12 PW6 is Constable Vikas who deposed that on 29.10.2006 he joined the investigation. He took the accused Anil to AIIMS Hospital, got him medically examined. Thereafter, he produced one pullanda sealed with the seal of hospital along with sample seal which was handed over to him by the doctor, to the IO. The same was seized vide memo Ex.PW6/A. 13 PW7 is ASI Fateh Singh who deposed that on 15.08.2006 complainant Rampal came to police station and reported missing of his daughter namely 'X'. The true copy of DD entry on record is Ex.PW7/A. He stated that as the record of roznamcha has been destroyed by the order of the Additional DCP, South East, the same could not be brought.
Photocopy of the order is duly proved on record Ex.PW7/B. 14 PW9 is Constable Dinesh Kumar who deposed that on SC No. 222/09 State Vs Anil Kumar Page No. 10 of 20 28.08.2006 as per the instructions of duty officer he took the rukka and copy of FIR to the spot and handed over the same to Investigating officer ASI Mahender Singh. IO made efforts to locate the prosecutrix but she could not be found. His statement was recorded by the Investigating officer.
Medical Witnesses:
15 PW11 is Dr. Vinod who deposed that prosecutrix was medically examined by Dr. Sagarika Aggarwal who prepared the detailed MLC Ex.PW11/A. He further deposed that prosecutrix refused to undergo the gynae test. He had duly identified the handwriting and signatures of Dr. Sagarika Aggarwal on record.
Statement and Defence of accused : 16 Statement of accused under Section 313 Cr.P.C was recorded wherein the accused denied the case of the prosecution and stated that it is a false case made by the complainant. Mausi of the prosecutrix was residing near his rented accommodation. The prosecutrix was visiting the house of her Mausi where he acquainted with her. Prosecutrix asked him to accompany her to the house of her relative at Hathras and he accompanied her and stayed there for around one month. Prosecutrix then asked him to accompany her to the place of her maternal uncle at Rajgarh and he accompanied her and stayed there for around one month. They then returned to Delhi and performed marriage in Arya Samaj SC No. 222/09 State Vs Anil Kumar Page No. 11 of 20 Mandir. They both again went to Rajgarh and stayed there for 1015 days and thereafter returned to Delhi. He stated that he informed his mother telephonically and when they got down at Sangam Vihar Police station they were apprehended by the police as his mother had already informed the police. Accused had stated that prosecutrix herself had taken him to the house of her family members. He further stated that they did not make any physical relations with each other and the prosecutrix had falsely deposed against him at the instance of her parents, neighbour and family members. Accused further stated that he does not wish to lead any defence evidence.
17 I have heard the Ld. Defence counsel for the accused and Ld. APP for state and have carefully perused the record. Arguments of Ld. APP for state: 18 Ld. APP for the state argued that prosecutrix is minor in this case. Accused had kidnapped the prosecutrix out of the lawful guardianship of her parents and without their consent and with the intention that she will be compelled to marry the accused and to have illicit intercourse with him. Hence, accused is liable to be convicted. Arguments of Ld. Defence Counsel for accused: 19 On the other hand, Ld. Counsel for accused argued that accused has been falsely implicated in this case. Prosecutrix herself had taken him to the house of her family members. He argued that accused SC No. 222/09 State Vs Anil Kumar Page No. 12 of 20 has stated that they did not make any physical relations with each other and the prosecutrix had falsely deposed against him at the instance of her parents, neighbour and family members. Hence, accused is liable to be acquitted.
Conclusion: 20 Offence of Kidnapping and abduction as well as the offence under section 366 IPC: For the offence under section 363 of IPC, the prosecution has to prove the ingredients of the offence as mentioned in section 361 of IPC i.e.:
i) taking or enticing a minor girl under 18 years of age,
ii) Out of the keeping of lawful guardian of such minor,
iii) without their consent.
21 For proving the offence under section 366 IPC, prosecution has to prove essential ingredients of section 366 of IPC are :
(a) A person kidnaps or abducts any woman.
(b) The act is done
(i) with intent that she may be compelled to marry any person against her will, or
(ii) knowing it to be likely that she will be so compelled, or
(iii) in order that she may be forced or seduced to illicit intercourse, or
(iv) knowing it to be likely that she will be so forced or SC No. 222/09 State Vs Anil Kumar Page No. 13 of 20 seduced.
22 As per the statement of the father of the prosecutrix and the mother of the prosecutrix, the prosecutrix was around 17 ½ years of age at the time when the incident had happened. The prosecutrix has also stated in her statement recorded under Section 164 Cr.P.C that she was 17 ½ years of age. The prosecution has placed on record, the school records of the prosecutrix wherein her date of birth is mentioned as 13.11.1988. However, the school record is not proved by the Prosecution.But the accused has nowhere challenged the age of the prosecutrix as mentioned by the prosecutrix and her father in their statements. Since, the accused has not challenged the statement of the prosecutrix and her parents with regard to the age and in view of the statement of the IO/PW10, who had stated that he had collected the progress report and admit card of the prosecutrix showing her age from the father of the prosecutrix which has been placed on record and no cross examination of this witnesses is also being conducted by the accused, the prosecution has proved that the prosecutrix is 17 years and 9 months at the time when the incident had happened and as such, she was minor.
23 The prosecutrix and the parents of the prosecutrix are the material witnesses. Both PW2 & PW3 parents of the prosecutrix have deposed about the fact that they had lodged the complaint with regard to the missing of their daughter. They made efforts for locating her daughter SC No. 222/09 State Vs Anil Kumar Page No. 14 of 20 but she was not found and on 21.08.2006 they were informed by the sister in law of the accused that the accused had taken away their daughter. On the similar lines PW1 has stated that she was taken by the accused however, testimony of the prosecutrix as recorded in the court is completely inconsistent with her statement already recorded by the police and by the Magistrate under Section 164 Cr.P.C. In her statement before the police as well as before the Magistrate the prosecutrix has specifically deposed that she had gone with the accused on 15.08.2006 to the house of her maternal uncle at Etawa. She has stated that she herself had called the accused on telephone and only on her asking, the accused took her to the house of her maternal uncle where they stayed for 22 ½ months. She has stated that she informed her maternal uncle that she had come to stay there after informing their parents. She has further stated that on 13.10.2006 she had married with the accused voluntarily in a temple in Yamuna. She had also stated that she had made physical relations with the accused and that the accused had not committed any forcible act against her wishes. She has even refused for her gynecological examination mentioning the same history to the doctor however, in her statement recorded in the court she has taken somersault and put up altogether a new theory which was not revealed by her till the time her statement was recorded in the court. For the first time in the court, she has stated that on 15.08.2006 she has gone to the house of her mausi and on the way she SC No. 222/09 State Vs Anil Kumar Page No. 15 of 20 saw that accused Anil and his brother namely Sunil were standing near a car. When she reached near the car accused Anil put the handkerchief on her mouth and dragged her inside the car whereafter she became unconscious and when she regained consciousness she found herself lying under a bed in the house of sister of the accused Anil. The accused again put a handkerchief on her nose and she became unconscious. When she regained consciousness second time, she was in a car and from the conversation between accused Anil Kumar and Sunil she could understand that she was in Rajasthan. The accused persons took her in a room where accused Anil had committed rape with her. At the said place, she was kept for one month. Thereafter, they made her unconscious and when she came to consciousness she was in Hathras. At Hathras, the accused persons used to harass and beat her. They also put knife on her neck and at Hathras they took her to court where her signatures were put on blank papers. Thereafter, they took her to Rajgarh, Bulandshehar U.P. in unconscious condition. She was beaten mercilessly and after keeping her at Rajgarh she was brought to Sangam Vihar where the mother of the accused, his two sisters and the brothers in law of the accused, the brother and bhabi were present who misbehaved and they took her to Arya Samaj Mandir and her marriage was solemnized by keeping the knife on her neck. She stated that they got the photos clicked. She has stated that under intimidation she made statement to the doctor and the Magistrate.
SC No. 222/09 State Vs Anil Kumar Page No. 16 of 20 All the facts which are narrated by the prosecutrix in the court are contrary to the facts as recorded in her earlier statement. When once she was recovered by police, the fear of alleged threats given to her by accused do not exist. She has nowhere in her cross examination stated that she has told to the Magistrate that in Hathras she was threatened to make the statement. The prosecutrix had not stated anywhere even before the doctor or the Magistrate who recorded her statement that she was under intimidation. She did not make any complaint against the accused even after her restoration to her parents by the police. She stayed with the accused for 2 ½ months but she did not narrate the incident to anybody. It is not believable that the girl shall be taken to Hathras, Rajasthan, Sangam Vihar in unconscious condition or that during the long stay for 2 ½ months she will never try to raise hue and cry or to escape or try to inform any person on the way that she was kidnapped. The conduct of the prosecutrix is against the normal human behaviour. Hence, the testimony of the prosecutrix is not inspiring confidence. The court is not oblivious of the fact that girls, on being rescued to their parents, have a tendency to level false allegations against the boy to save the honour of the family or to avoid the wrath of her family. Accordingly, the testimony of the prosecutrix is not reliable.
I am supported by the judgment of Naresh Kumar Vs The State (Govt of NCT) Delhi Crl. A. No. 313/2010 decided on 04.07.2012.
SC No. 222/09 State Vs Anil Kumar Page No. 17 of 20 The facts of the said case are somewhat similar to this case. In the said case also the prosecutrix was taken to several places by accused but she never raised any hue and cry. The observation of Hon'ble Justice A.K. Pathak are worthwhile to mention here. It is observed in that case that: "the conduct of the prosecutrix that she travelled in two buses and thereafter in a train before they reached the village , remained in the train for three nights, introduced by the accused to his father and sister as his wife, her admission in the cross examination that she did not tell the taxi driver or fellow passengers in the buses and train in which they travelled and as also the family members of the accused that she was kidnapped and forced by the accused to accompany him, her admission in the cross examination the parents of the accused had taken her for getting the prosecutrix and the accused to get married, her act of not raising alarm or any attempt to draw the attention of the lawyers , police or court staff or litigants present there that she has been kidnapped, her recovery from the hotel from where she was residing with the accused and during this stay also her act not raising the alarm or making complaint to any one in the hotel indicates that she will fully accompany the applicant and stayed with him of her own will and was a consenting party. In this case, the court had referred to the judgment of Mahabir Vs state, 55 (1994) DLT 428 wherein the prosecutrix had travelled with the accused for long hours in a compartment shared by other passengers, they went to a house SC No. 222/09 State Vs Anil Kumar Page No. 18 of 20 on a tonga which was hired from a railway station and shared by other passengers. All this while, she did not make any protest or raise any alarm or made any attempt to flee. In these facts, it was concluded that she was a consenting party.
In this case, the court has also referred to the case of Mohd. Imteaz Khan @ Sunnu Vs The State of Haryana, 1994 (2) RCR 456 wherein the prosecutrix remained with the accused for a number of days, travelled in the buses and passed through crowded places without raising any protest. In these facts it was held that the prosecutrix was a consenting party."
Though as per my observation the prosecutrix had willingly accompanied the accused but as she is minor for the purpose of section 363 IPC i.e. less than 18 years and as the consent of a minor prosecutrix is immaterial, it is proved that prosecutrix was kidnapped by the accused out of the lawful guardianship of her parents and without their consent and with the intention that she will be induced to marry the accused and to have illicit intercourse with him. The defence of accused also supports the fact that both accused and prosecutrix went together. As per the defence of the accused, he and the prosecutrix both accompanied together to the Hathras at the house of relative of the prosecutrix where he had gone at the asking of the prosecutrix and thereafter, they went to Rajgarh and stayed together for 2 ½ months and married each other. It is also SC No. 222/09 State Vs Anil Kumar Page No. 19 of 20 stated that no physical relations were made between them. In view of the defence of the accused, it is proved that they both have gone together and as observed above, since the prosecutrix is minor and her consent is immaterial, the offence under Section 363/366 IPC is proved. 24 In view of the above discussion, the prosecution has proved its case beyond doubt against the accused. Hence, accused Anil Kumar is held guilty and convicted for the offence under section 363/366 IPC. ANNOUNCED IN THE OPEN COURT ON 21.12.2013.
( RENU BHATNAGAR )
DESIGNATED JUDGE
TADA/POTA/MCOCA
ASJ SE01/NEW DELHI
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