Delhi District Court
State vs . Sanjay on 28 February, 2013
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IN THE COURT OF MS. POONAM A. BAMBA
ADDITIONAL SESSIONS JUDGE-01
PATIALA HOUSE COURT : NEW DELHI
In re:
Session Case No. 01/13
State v. Sanjay
FIR No. 139/2012
u/s. 363/365/366 IPC
PS Chanakya Puri
Date of Institution : 02.01.2013
Arguments concluded on/
judgment pronounced : 28.02.2013
JUDGMENT
1.0 Criminal justice system was set into motion on the complaint lodged by Aajudhi, father of the prosecutrix on 26.10.2012. Same mentioned that at 11.30 am on 25.10.2012, the prosecutrix along with his 13 years old niece Vinita went to Punjab National Bank(PNB), Anand Niketan, Moti Bagh for ATM Card. Son of their neighbour, accused Sanjay met the prosecutrix and her cousin on the way and dropped them by his car at the bank. While returning also, the accused offered lift to both the girls. State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 1 of 23 -2- His niece got down but, his daughter/prosecutrix was enticed, allured and taken away by the accused, who could not be traced.
1.1 On 28.10.2012, the complainant produced his daughter and accused was produced by his brother at the Police Station Chanakya Puri. The prosecutrix's statement was recorded. She stated that while returning from the bank, the accused insisted to drop them home by his car. On which, she and her cousin sister got into the car but, the accused took them via different route which was objected to by both of them. Her cousin Vinita got down from the car but, when she tried to alight, the accused locked the doors. She screamed but, her voice could not be heard outside. The accused then took the car to the Taxi Stand and deposited the car there. Thereafter, he took her to Old Delhi Railway Station in an auto rickshaw. Although, she attempted to run away but, she was slapped and threatened by the accused. At about 9.00 State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 2 of 23 -3- pm, the accused made her board the train, which reached Ambala at 4.00 am on 26.10.2012. They waited at Ambala Railway Station the entire day. During this period, accused called up his Jija over phone number of times; his Jija reached Ambala Station at 9.00 pm and took them to Nangal Dam(Punjab) by train. They reached accused's Jija's house at 12 night. Next day i.e., on 27.10.2012, accused's brother Mukesh reached his Jija's house at 9.00 am and brought both of them to Delhi by bus. They reached Delhi at 6.00 am on 28.10.2012. Accused's brother Mukesh handed her over to her father. Accused's father produced the accused before the police at Police Station at 10.00 am. Prosecutrix also stated that she was not sexually abused by the accused during this period.
1.2 Prosecutrix also stated that she was repeatedly threatened by the accused; the accused had taken her away with an intention to marry her; even on State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 3 of 23 -4- the day of Dussehra, the accused had given her paan to eat and thereafter told her that now they stand married and she cannot refuse to get married to him; 10 -15 days back, the accused had even consumed some liquid on this issue.
1.3 After medical examination of the prosecutrix at RML Hospital, recording of her statement u/Sec. 164 Cr.PC by the Ld. MM on 31.10.2012 and completion of investigation, the charge-sheet u/Ss 363/365/366 IPC was filed.
2.0 Charge u/Ss 363/365/366 IPC was framed against the accused vide order dated 04.01.2013. 3.0 The prosecution in support of its case, examined eight witnesses. PW1 is the prosecutrix herself, PW2 is her cousin sister Vinita and PW3 Sh. Aajudhi is the father of the prosecutrix. PW4 Ms. Poonam is the Head State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 4 of 23 -5- Mistress of Nagar Palika Primary School, who produced the school record with respect to the date of birth of the prosecutrix. PW5 is the Ld. MM, Ms. Jasjeet Kaur, who recorded the statement of the prosecutrix u/Sec. 164 Cr.PC. PW8 is Dr. Madhurima Taneja, who proved MLC of the prosecutrix. PW7 ASI Sham Lal is the IO and PW6 Ct. Kishan Lal is the other police official. 4.0 I have heard Sh. Sanjay Bhargava, Ld. counsel for the accused and Sh. Salim Khan, Ld. Addl. PP for the State and have perused the record carefully. 5.0 From the prosecution evidence, it has come on record that prosecutrix and the accused knew each other since prior to this incident. Prosecutrix in her cross- examination has stated that she knew the accused, who lived in her neighbourhood. Prosecutrix has also stated that even earlier i.e. prior to this incident she had gone to her school in the accused's car; the accused would drop State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 5 of 23 -6- her and her friends to school at their request, when they would get late. She has also stated that even her mother sometimes availed the facility of accused's car. The same shows the extent of familiarity between the accused and the prosecutrix/her family.
5.1 The prosecutrix's version that she was forcibly taken away by the accused on that fateful day and that she could not raise any alarm as she was threatened by the accused, stands exposed from the testimony of prosecution's own witnesses including that of the prosecutrix, as discussed in paras infra. 5.2 Prosecutrix has deposed that while she alongwith her cousin Vinita was returning from PNB, Anand Niketan, at about 12.30 p.m., the accused again met them and offered to drop them at their jhuggi; despite their refusal, he insisted to drop them; on his insistence they got into the car. The accused took some State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 6 of 23 -7- unknown route to which she as well as her cousin objected to and even altercation on this account took place between them; thereafter, her cousin Vinita alighted from the car, she also tried to get down but accused locked the doors; she made noise but her voice could not be heard outside as the windows of the car had been locked. She was even threatened by the accused to remain quiet. PW2 also deposed on the similar lines sans threat part. Rather, in her examination in chief she stated that "I do not know why Kesh Kali did not get down from the car when I alighted from the car".
5.2.1 The prosecutrix in her cross-examination has stated that accused himself was driving the car and her cousin Vinita was sitting next to the driver/accused, whereas, she was sitting on the back seat. PW2 Vinita in her cross-examination stated that she was sitting on the back seat and and not next to the driver because it is not good to sit with someone. She also stated that State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 7 of 23 -8- she comfortably got down from the car, which means the car was halted by the accused and PW2 alighted from the car comfortably. It is unbelievable that the prosecutrix who as per her own statement was sitting at the back seat, could not alight at the same time. It is also noteworthy that PW2 in her cross-examination also stated that on her return home, she did not complain (about prosecutrix being taken away by accused) to anyone because she did not know that accused took prosecutrix forcibly. These facts and circumstances and discrepancies in the versions of PW1 and PW2 create doubt about prosecutrix's version of being forcibly taking away by the accused. The said doubt is confirmed by the evidence, as discussed in subsequent paras.
6.0 It has also come in the testimony of the prosecutrix/PW1 that the accused had stopped the car number of times, even after getting down of PW2. She has stated that while the accused was taking her, he had State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 8 of 23 -9- received a phone call from a lady (whose car he drives). As per that lady's instructions the accused went to that lady's school to pick her up. In her statement u/Sec.164 Cr.PC, which is Ex.PW5/B (copy of the same was already exhibited as Ex.PW1/C), the prosecutrix has also stated that after picking up that lady, that lady stopped on the way to purchase vegetables; she took around 10 -15 minutes in purchasing vegetables. Thereafter, the accused drove to that lady's son's school to pick him up and thereafter, he dropped the lady and her son at their residence. Prosecutrix in her cross- examination explained that she could not tell that lady about being taken away because she was threatened by the accused; and she could not run away from the car when the car halted, as the accused had caught hold of her hand.
6.1 The prosecutrix has further deposed that after dropping that lady, the accused parked the car at the taxi State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 9 of 23
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stand. In her cross-examination, she has stated that while the accused went inside the taxi stand for handing over the car and its keys, she was standing outside. 6.2 Prosecutrix/PW1 has also deposed that after handing over the car, accused took her to old Delhi Railway Station. In her cross-examination, she has stated that accused took her by auto-rickshaw and that it took them more than half an hour to reach the Station. It has also come in her cross-examination that she stood in the queue for buying railway ticket; she had purchased two tickets. She has also stated in her cross-examination that the train for Ambala had left at about 10.00 - 10.30 p.m. and that they remained at the platform before the arrival of the train. She has herself stated that there were many persons on the platform and that the train was also crowded.
6.3 As per the prosecutrix they reached Ambala State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 10 of 23
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Station at about 05.00 a.m. - 06.00 a.m.; that the accused had called up his Jija over phone, from Ambala Station; his Jija arrived at Railway Station at about 08.00 p.m. - 09.00 p.m.(wrongly typed in examination in chief as 08.00/09.00 a.m.) who took them to his residence at Nangal Dam. Prosecutrix has stated that they remained at platform of Ambala Station, the entire day, till his Jija came; and that the platform was very crowded. 6.4 Prosecutrix has admitted that she did not raise alarm/complain to any person that the accused was taking her forcibly during her entire journey. That is, while being taken away in the auto-rickshaw from the taxi stand at Delhi and either on the platform of Old Delhi Railway Station or inside the train for Ambala or even at Ambala Station, where the prosecutrix and the accused waited for accused's Jija for almost the entire day. In her deposition, the prosecutrix stated that she could not complain due to fear; even in the train the accused had State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 11 of 23
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threatened her that "main tujhe muhh dikhane layak nahin chodunga"; he also threatened to make her video with his mobile. It is noteworthy that in none of her statements i.e. u/s 161 Cr.PC (Ex.PW1/D1) and u/s 164 Cr.PC (Ex.PW5/B / Ex.PW1/C), the prosecutrix has made any mention of threat of the accused regarding making of her video. Further, admittedly the prosecutrix did not even raise alarm, while she was being taken by the accused's Jija on bike.
6.5 From the above evidence on record, it is established that the prosecutrix had ample number of opportunities to raise alarm/run away, but, she chose not to do so. At the very first instance, when the lady boarded the car, the prosecutrix could have immediately sought her help. Even thereafter, she was all alone, when the accused went inside the taxi stand to hand over the vehicle and could have easily sought help/run away. Even thereafter, at many occasions i.e. on the way to Old Delhi Railway State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 12 of 23
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Station, at the Station, while buying ticket from railway official, inside the train, at Ambala Station, etc. the prosecutrix could have raised the alarm/sought help from public persons/railway staff/police. It has come in the testimony of PW7 that there are many police pickets on the way from Singapore Embassy till Old Delhi Railway Station.
6.6 It is also noteworthy that IO/PW7 in his testimony has deposed that during investigation he had examined taxi owner and one lady namely Marry Thrmpi, who travelled in the taxi, in which the prosecutrix's was being carried by the accused. In his cross-examination, PW7 stated that he did not record either the statement of taxi owner or that of Marry Thrmpi.
6.6.1 The examination of Marry Thrmpi would have thrown light on the truth of the matter because of her personal presence in the same car. It is intriguing that State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 13 of 23
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this material witness was chosen not to be examined by the IO. In view of the same, the Ld. defence counsel's suggestion / argument that Marry Thrmpi was not produced as a witness by the prosecution, as her version did not support the prosecution story, does assume significance.
6.7 It is also noted that in the MLC of the prosecutrix Ex.PW1/A, the attending doctor has mentioned as under :
"Alleged H/o running away from home ~ three days back as told by Keshkali's parents. However no H/o physical and sexual assault as told by patient & parents..."
6.8 It is also significant to note that the prosecutrix in her cross-examination admitted that she had told the lady police official (WSI B. Lakra) that she on her own had gone to Phagwara, Punjab, where her sister State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 14 of 23
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lived. Same finds mentioned in Ex.PW7/DA, Social Background Report of the prosecutrix, furnished in the instant case by W/SI, B. Lakra. PW7 IO/ASI Sham Lal has also admitted in his cross-examination that the said report is signed by WSI B. Lakra; and that the same was handed over by WSI B. Lakra to Ms. Aparna, Member, CWC.
6.8.1 It is seen that in the said report there is a mention that ...."On 27.10.2012 Mr. Aajudhi himself come to PS Chanakya Puri alongwith missing girl Keshkali and reported that he recovered the girl from Fagwara (Punjab). The girl was in her statement Keshkali has stated that she herself went to Fagwara (Punjab) as she has lost her away. No foul play was reported by sheetal or any". 6.8.2 WSI B. Lakra has not been produced as a witness, for the reasons best known to the State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 15 of 23
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IO /prosecution.
6.9 It has has come in the testimony of PW2, prosecutrix's cousin sister Vinita, who was with her and also in the testimony of prosecutrix's father PW3 that on return to her house, PW2 had narrated the entire incident to PW3. PW2 as well as PW3 in their cross-examination have stated that the incident was told to PW3 on 25.10.2012 at about 01.00 - 01.30 p.m. PW3 in his cross- examination has stated that he did not lodge any complaint with the police, the same day. He did not even visit accused's house on 25.10.2012, to inquire about his daughter or even to find out accused's mobile number so as to make inquiries with him. It is strange that the father, who came to know (from his niece PW2) that his daughter/prosecutrix has been taken away by a boy living in the neighbourhood did not bother to make inquiries with the house next door. Nor did he report the matter to the police, the entire day or even the next day till State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 16 of 23
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afternoon. It has come in the testimony of PW7 that around 01.30 p.m., when he was patrolling in front of Singapore Embassy, father of prosecutrix had informed him about kidnapping of his daughter. Thus, father of prosecutrix/PW3 approached the police after 24 hours. PW3's explanation in cross-examination that he did not lodge the complaint on that day as night had fallen, in searching for his daughter can hardly be accepted particularly, as he has not stated anything as to where was he searching for his daughter. Rather, PW3 did not even visit accused's house to find out, despite coming to know that prosecutrix had been taken away by the accused. It is absolutely unnatural for a father not to immediately rush to the boy's house, who lived in the neighbourhood to find out/complain about his daughter having been taken away by him.
6.9.1 It is interesting to note that in his cross- examination PW3 Aajudhi denied that he did not lodge State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 17 of 23
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any complaint on the same night as the prosecutrix had left on her own for her sister's house at Phagwara without informing them. Same is contrary to his own version recorded in PW7/DA, wherein it is mentioned that PW3 himself produced prosecutrix at PS Chanakya Puri and informed that prosecutrix was recovered from Phagwara, Punjab.
6.10 The version in MLC that prosecutrix ran away and in Ex.PW7/DA that she was recovered from Phagwara clearly indicates an attempt on the part of father/parents to hide the true fact that prosecutrix ran away with accused, in order to protect their honour. 6.11 From the above evidence on record, it stands established that prosecutrix accompanied the accused out of her own free will.
7.0 What is to be seen is whether prosecutrix's State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 18 of 23
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consent had any meaning in law. As per prosecution the prosecutrix was 15½ years old, when she was taken away/enticed/allured by the accused. The Ld. defence counsel argued that the prosecution has failed to place on record the date of birth certificate/ any other authentic proof of date of birth of the prosecutrix. 7.1 It may be mentioned that the prosecution has placed on record, a certificate issued by the Head Mistress of N. P. Primary School, Sanjay Gandhi Camp, Chanakya Puri, New Delhi, with respect to date of birth of the prosecutrix and copies of declarations given by her parents as to correctness of date of birth (22.02.1997) of prosecutrix, at the time of her admission in that school, which are Ex.PW7/G, Ex.PW7/H and Ex.PW7/J, respectively. IO ASI Sham Lal, PW7 testified that he had collected and seized the said documents from prosecutrix's school vide seizure memo Ex.PW7/F. State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 19 of 23
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7.2 PW4, Ms. Poonam, Head Mistress of Nagar Palika Primary School, deposed that the prosecutrix was admitted in their school on 18.07.2001 in Nursery class. At the time of her admission, affidavit by her father Ayodhya Prasad was given with respect to her date of birth; in the said affidavit, the date of birth of the student/prosecutrix was mentioned as 22.04.1997, which was accordingly recorded in the admission register. PW4 produced the original Admission and Withdrawal Register, Transfer Certificate register / Pasting/Guard File and Affidavit of prosecutrix's father, copies of which are Ex.PW4/A, Ex.PW4/B and Ex.PW4/C, respectively. PW4, in her cross-examination clarified that they do not carry any independent verification of the date of birth disclosed by the parents/guardian at the time of admission; the date of birth of the prosecutrix was recorded on the basis of affidavit of her father.
7.2.1 As per entry at no. 773 in Admission and State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 20 of 23
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Withdrawal Register, the prosecutrix took admission in the said school on 23.04.2002 and passed class 5th on 30.03.2007; her date of birth in the said Register and in Transfer Certificate dated 30.03.2007 i.e. Ex.PW4/A & Ex.PW4/B, is recorded as 22.04.1997. Nothing could be brought out in the cross-examination of PW4, so as to create any doubt about the genuineness of the school record. Therefore, there is no reason to disbelieve the said record. Moreover, this record is about 12 years old; prosecutrix's father would not have foreseen happening of any such incident, so as to give the wrong date of birth of the prosecutrix at that time.
7.3 Thus, as per the record of the school first attended by the prosecutrix, her date of birth is 22.04.1997. It may be mentioned that prosecutrix was cross-examined in order to arrive at her age. But, nothing could be extracted, so as to create suspicion about the date of birth mentioned in the school record. State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 21 of 23
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7.4 In view of the above evidence on record, prosecutrix's age on 25.10.2012/the date of incident, would come to 15 years and 06 months approximately. 8.0 The prosecutrix was thus, minor/only 15½ years old on the date of incident. As per the evidence on record, the accused had not obtained permission of her parents before taking her. Thus, the accused had taken the prosecutrix out of the keeping of lawful guardianship of her parents without their consent. The accused is, therefore, guilty of offence punishable u/Sec. 363 IPC.
8.1 However, in view of the findings made in preceding paras, there is nothing on record to suggest that the prosecutrix was kidnapped with an intent to secretly and wrongfully confine her. Further, except for a bald statement by the prosecutrix in her deposition that the accused had insisted upon her to marry him, nothing else has come on record to suggest that the accused State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 22 of 23
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kidnapped the prosecutrix in order to compel her to marry him. Not much importance can be attached to the statement of prosecutrix as her credibility is suspect, in view of the findings made in preceding paras. Further, the prosecutrix herself has stated that the accused did not misbehave with her/did not do any "galat kaam" with her. 8.2 In view of the above, no offence u/Ss. 365 and 366 IPC is made out against the accused. 8.3 In view of the above findings, accused is acquitted of offences punishable u/Ss 365 and 366 IPC. However, accused is convicted for offence punishable u/Sec. 363 IPC in case FIR No. 139/12, u/Ss 363/365/366 IPC.
Announced in open Court (Poonam A. Bamba) Date : 28th February, 2013 ASJ-01/PHC/New Delhi State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 23 of 23
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IN THE COURT OF MS. POONAM A. BAMBA ADDITIONAL SESSIONS JUDGE-01 PATIALA HOUSE COURT : NEW DELHI In re:
Session Case No. 01/13
State v. Sanjay
FIR No. 139/12
u/s. 363/365/366 IPC
PS Chanakya Puri
ORDER ON SENTENCE
1.0 Ld. counsel for the convict submitted that the
convict has already been in judicial custody for about three months. The convict is young boy of 21 years of age. He has no previous involvement. This is the only case against him. In view of the facts and circumstances of the case, he be provided an opportunity to reform and be released on probation. 2.0 On the other hand, Ld. Additional PP submitted that the convict is guilty of kidnapping a minor girl and prayed for the maximum punishment prescribed u/Sec. 363 IPC. 3.0 I have heard the submissions from both the sides and have gone through the record.
State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 24 of 23
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4.0 There is no previous involvement of the convict in any criminal case. The Probation Officer vide her report dated 04.03.2012 has recommended that the convict be considered for the benefit of probation u/Sec. 4(1) of the Probation of Offenders Act, 1958. It is mentioned in the report that the convict regrets the incident and realises his mistake of running away from home with the prosecutrix. Release on probation would help the convict to meet his responsibilities towards his family and society.
5.0 In view of the above and taking into account the facts and circumstances of the case in entirety, the Probation Officer's report and considering the age of the convict, I am of the considered opinion that the convict deserves an opportunity to reform himself. Benefit of probation of good conduct, under sub sec. (1) of Sec. 4 of The Probation of Offenders Act, 1958 read with Sec. 360(1) Cr.PC, is given to the convict. The convict is released on probation of good conduct for a period of one year, on furnishing a bail bond in the sum State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 25 of 23
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of Rs.20,000/-, with one surety in the like amount and to appear and receive sentence when called upon during such period and in the meanwhile, to maintain good behaviour.
File be consigned to Record Room.
Announced in open Court (Poonam A. Bamba) Date : 04th March, 2013 ASJ-01/PHC/New Delhi State Vs. Sanjay FIR No. 139/12 : PS Chanakya Puri Page No. 26 of 23