Delhi District Court
Sc No: 101/13 State vs . Raju Yadav on 5 November, 2015
SC No: 101/13 State Vs. Raju Yadav
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
S. C. No. 101/13
FIR No. 52/12
Police Station Alipur
Under Section 363/366/376 IPC
ID No. 02404R0-1625922013
State
Versus
Raju Yadav
s/o Sh. Bikahari Yadav,
r/o Baldhari Colony,
Village Bakhtawarpur, Delhi. ......Accused
Date of institution 24.01.2013
Judgment reserved on 31.10.2015
Judgment Pronounced on 05.11.2015
Decision Acquitted
Judgment 1 of 19
SC No: 101/13 State Vs. Raju Yadav
JUDGMENT
1. Accused Raju Yadav is facing trial in the present case on allegations that he kidnapped prosecutrix 'K' aged 15 years to compel her for marriage and for committing rape upon her.
2. FIR in question was registered on complaint of father of the prosecutrix who alleged that his daughter was missing from home since 18.02.2012 and he suspected the role of accused in enticing and kidnapping her daughter. Efforts were made to search the prosecutrix but she could not be found. On 02.05.2012, prosecutrix was recovered from the house of the accused at Village Sahu Pare, District Darbanga, Bihar, Statement of prosecutrix was recorded. As per prosecution case, accused despite being married enticed prosecutrix and established physical relations with her against her consent. Prosecutrix was medically examined and her pregnancy test came positive.
Judgment 2 of 19
SC No: 101/13 State Vs. Raju Yadav
3. On the basis of the allegations against the accused, the accused was arrested and was charge-sheeted in the present case. He was charged for the offence punishable u/s 363/366/376 IPC to which he pleaded not guilty and claimed trial.
4. Prosecution has examined 14 witnesses.
5. PW1 is father of the prosecutrix. He proved missing report lodged by him in respect of prosecutrix as Ex PW1/A and deposed that after about three months he received an information that his daughter is in Bihar. He went there and got recovered prosecutrix from the house of accused. He also proved the arrest & personal search memo of accused as Ex PW1/B & C. He proved the handing over memo of accused as Ex PW1/D. Judgment 3 of 19 SC No: 101/13 State Vs. Raju Yadav
6. PW2 mother of the prosecutrix also deposed on lines of PW1 and proved recovery memo of prosecutrix as Ex PW2/A.
7. PW3 prosecutrix deposed that on the way to her School accused met her and took her to Panipat and from there to Darbanga, Bihar. Accused committed sexual intercourse with her and made her pregnant. Accused threatened her that if prosecutrix would give statement against the accused then he would kill her father & sister. She proved her statement recorded u/s 164 Cr.P.C as Ex PW3/A wherein she stated that she went with accused voluntarily as such she did not make any allegations against the accused in said statement. However, while testifying in the Court she stated that she gave that statement under threat of the accused. After being she was recovered by police, she stated to have stayed at Nirmal Chaya where she aborted the child. She identified her clothes as Ex P-1 to P-4.
Judgment 4 of 19
SC No: 101/13 State Vs. Raju Yadav
8. PW4 HC Rampal proved the FIR as Ex. PW4/A and deposed that he made endorsement on the rukka.
9. PW5 Dr Manoj proved MLC of the accused as Ex. PW5/A where in, it is opined that he was sexually potent.
10. PW6 Ct. Chameli collected the exhibits of the prosecutrix after her medical examination which was seized by the IO from her vide seizure memo Ex. PW6/A to C.
11. PW7 Ct Ajay Kumar proved the arrest of the accused and his personal search vide memo Ex. PW1/B & C, he proved the disclosure statement of accused as Ex PW7/A and seizure of exhibits of the accused after his medical examination as Ex PW7/B. Judgment 5 of 19 SC No: 101/13 State Vs. Raju Yadav
12. PW8 Dr Hema proved the medical examination of the prosecutrix vide MLC Ex. PW8/A and detailed examination sheet as Ex. PW8/B. She deposed that pregnancy test of the prosecutrix was positive.
13. PW9 Nirmala, produced the school record of the prosecutrix as Ex. PW9/A and proved the date of birth of the prosecutrix as per her school record as 10.03.1997.
14. PW10 Deepak Wason, Ld ASCJ, proved statement of the prosecutrix recorded u/s 164 Cr P C as Ex PW3/A.
15. PW11 HC Deshpal proved the deposit of the case property in the Malkhana & FSL as per entries as Ex. PW11/A-F.
16. PW12 Ct Ramesh deposited case property with FSL.
Judgment 6 of 19
SC No: 101/13 State Vs. Raju Yadav
17. PW13 ASI Omender arrested accused and got recorded the statement of the prosecutrix u/s 164 Cr.P.C. He also proved the seizure of exhibits of the accused and prosecutrix after their medical examination.
18. PW14 SI Mukesh Kumar got deposited the exhibits with the FSL and obtained its result as Ex F-1. He also collected the age proof of prosecutrix from her School.
19. On conclusion of the prosecution evidence, the statement of accused was recorded U/s 313 Cr.P.C. wherein the accused stated that prosecutrix was in love with her and wanted to marry him. He claimed his innocence and stated that he has been falsely implicated in the case. Accused preferred not to lead DE.
20. I have heard the Ld. Addl. PP for the State and Ld. Defence Counsel. I have also gone through the entire record.
Judgment 7 of 19
SC No: 101/13 State Vs. Raju Yadav
21. It has been submitted on behalf of the prosecution that the testimony of the prosecutrix establishes that accused not only enticed her but sexually assaulted her as a consequence she became pregnant. It is submitted that FSL result Ex F-1 also establishes that due to physical assault on the prosecutrix she became pregnant. It is argued the testimony of the prosecutrix as well as her parents is convincing and establishes the guilt of the accused beyond any reasonable doubt.
22. Per contra, the learned defence counsel has very vehemently argued that the testimony of the prosecutrix shows that she voluntarily left her house and the accused did not commit any sexual assault upon her without her consent. It is submitted that the testimony of the prosecutrix is neither trustworthy nor reliable so to hold the accused guilty.
Judgment 8 of 19
SC No: 101/13 State Vs. Raju Yadav
23. I have given thoughtful consideration to the arguments advanced at bar and perused the entire material on record. Before adverting to the testimony of the prosecutrix let us what was her age at the time of incident.
24. Age of the prosecutrix: Prosecution has not produced any document with regard to the date of birth of prosecutrix issued by any statutory authority like Municipal Corporation or hospital. School record of the prosecutrix has been produced as Ex PW9/A which shows the date of birth of the prosecutrix to be 10.03.1997. However, there is nothing on record to show that on which basis the said date of birth is mentioned. Prosecutrix and her mother (PW2) both deposed that date of birth of prosecutrix is 21.04.1996. None the less, prosecutrix at the time of her medical examination as well recording of her statements claimed herself to be 16 years.
Judgment 9 of 19
SC No: 101/13 State Vs. Raju Yadav
25. In these conflicting statements, the age of the prosecutrix could have assessed through ossification test but no such report is on record neither the same was conducted on the prosecutrix. However, if the age of the prosecutrix as told by her herself and her mother is taken to be the admitted age of prosecutrix, then, the age of prosecutrix can be safely presumed to be about 16 years as on the date of incident.
26. Testimony of prosecutrix: Prosecutrix has testified as under :
" My date of birth is 21.04.1996. at the time of incident, I was studying in 9th class in Government Girls Senior Secondary School, Bakhtawarpur. Prior to this, I was studying at my maternal grand mother in Samastipur, Bihar upto 8th class. Accused Raju is my distant relative. On 18.02.2012, I was going to my school situated at Bakhtawarpur at about 8pm. Raju met me on the way and stated that I should accompany him in a Pooja performed at Village Bakhtawarpur. He boarded me in a vehicle (Chhota Judgment 10 of 19 SC No: 101/13 State Vs. Raju Yadav Haathi) and forcefully taken me to Panipat. He kept me in the house of his relative. He has committed sex with me repeatedly. In Panipat he kept me for one month. From the Panipat he took me to Sahu Palli, District Darbhanga, Bihar in the house some relative by train. There also accused Raju Yadav committed sexual intercourse with me. There accused also used to give beating when I used to say him that I want to meet my mother and father and he stated to me that I will have to remain with him in the said village. Due to sexual intercourse by accused, I got pregnant. Accused want to run away from there leaving me in the said village, therefore, the relative of the accused took me and accused to the local PS. Accused had threatened me in the PS that if I will give any statement against him, he will got killed my mother and father and got kidnap my sister. Local police official made call to the local Police of Delhi and Delhi police officials alongwith my parents came there and brought me and accused Raju Yadav at Delhi......"
27. Prior to recording of her testimony in the Court, the statement of the prosecutrix Ex. PW14/D-1 was recorded U/s 161 Cr.P.C. by the IO which reads as under:
"......... I am 8th class pass. My mausera Jija Raju Yadav was in visiting terms in our family. I fell in love with him and we used to meet each other. I voluntarily went with Raju Yadav and married him at Panipat. I want to stay with Raju Yadav. Raju Yadav after enticing me from 17.02.2012, has been establishing physical relations with me against my consent."
Judgment 11 of 19
SC No: 101/13 State Vs. Raju Yadav
28. Statement of the prosecutrix, Ex. PW3/A was also recorded on 04.05.2012 U/s 164 Cr.P.C., and the prosecutrix in her statement stated as under:
" I am 8th pass. Raju is my friend. He used to visit my house. We fell in love. We left our home in March 2012 and got married at Panipat. I left voluntarily and on my insistence Raju came with me . I immensely love Raju. I want to reside with Raju. He did not commit any forceful act with me. Raju be saved."
29. Learned defence counsel has very vehemently argued that the accused and prosecutrix were in love relationship. Prosecutrix wanted to get married to the accused and as such she had abandoned her home and had voluntarily gone along with the accused on 18.02.2012 and thereafter to his native place in District Darbhanga, Bihar. It has been argued that there is no consistency in the stand of prosecutrix taken by her at various points of time during the course of investigation.
Judgment 12 of 19
SC No: 101/13 State Vs. Raju Yadav
30. After going through the various statements of the prosecutrix meticulously, I find substance in the argument of the learned defence counsel in this regard.
31. First statement of the prosecutrix was recorded u/s 161 Cr.P.C by the IO on 03.05.2012 after bringing her back to Delhi, in which, she had stated that she fell in love with accused and had voluntarily left her house and married the accused at Panipat.
32. Second statement dated 04.05.2012 recorded by the Ld. M.M u/s 164 Cr.P.C is Ex. PW3/A, wherein the prosecutrix reiterated that she voluntarily left her home and married the accused at Panipat. In this statement prosecutrix stated that she immensely loved accused and wanted to stay with him and accused did not Judgment 13 of 19 SC No: 101/13 State Vs. Raju Yadav commit any wrong with her.
33. Her third stand is visible in her evidence recorded in the Court, wherein, she stated that the accused enticed her and took her forcefully to Panipat where he committed sex with her and thereafter took him to Bihar and there also he committed sexual intercourse with her due to which she became pregnant.
34. A close scrutiny of all the aforesaid statements would show that the prosecutrix has been taking wavering stands. In her statements Ex. PW14/D1 and Ex. PW3/A, prosecutrix categorically stated that she voluntarily left her house and married the accused at Panipat, whereas, in her testimony prosecutrix took a complete U- turn and testified that accused took her forcibly to Panipat and there she was kept for one month.
35. Although, in a deposition, prosecutrix claims to be forcibly taken by the accused to Panipat but she never raised any Judgment 14 of 19 SC No: 101/13 State Vs. Raju Yadav grievance before any person at any stage. During her cross examination, prosecutrix deposed that she was taken to Panipat in his small tempo and on that occasion she raised her voice but prosecutrix did not explain to whom she complained about her abduction by the accused.
36. As per her deposition prosecutrix was taken to Bihar in a train but nowhere the prosecutrix has claimed that she raised any alarm while she was taken to Panipat or to Bihar. Conduct of prosecutrix shows that she voluntarily accompanied the accused and did not raise any alarm during the entire period which she claims to have spent with the accused.
37. As far as the allegations of kidnapping are concerned there, it is evident that prosecutrix left her father's protection knowing the full import of what she was doing and she voluntarily joined the accused person, thus, the accused cannot be said to have Judgment 15 of 19 SC No: 101/13 State Vs. Raju Yadav taken her away from the keeping of her lawful guardian.
38. The undisputed facts of the case are as under:
i) Prosecutrix was about 16 years of age at the time of the said incident.
ii) She admits in her statements Ex. PW14/D1 and Ex. PW3/A, to be in love with accused and married to him.
iii) Prosecutrix never lodged any complaint against the accused nor raised any alarm during the entire time she spent with the accused.
iv) The physical relationship between the parties had clearly developed with the consent of the prosecutrix, as there was neither a case of any resistance, nor had she raised any complaint anywhere at any time despite the fact that she had been living with the accused for several days and traveled with him from one place to Judgment 16 of 19 SC No: 101/13 State Vs. Raju Yadav another.
39. Thus, the testimony of prosecutrix that she was forcibly taken Panipat and the accused established physical relations with her without her consent does not appears to be true. The only inference which could be drawn from the aforesaid statements of the prosecutrix is that she was a consenting party and had gone along with the accused to his native place and remained with him till she was recovered by her parents.
40. Medical and Forensic Evidence : DNA of the foetal tissue of prosecutrix was compared with the DNA of the accused extracted from his blood and as per FSL result Ex F-1, DNA of the accused has matched with the DNA of fetus. This conclusively proves that not only the accused established physical relations with the prosecutrix but the prosecutrix became pregnant as a consequence of physical relationship between accused and Judgment 17 of 19 SC No: 101/13 State Vs. Raju Yadav prosecutrix.
41. However, as stated above, the physical relationship between the parties had clearly developed with the consent of the prosecutrix, as there was neither a case of any resistance, nor had she raised any complaint anywhere at any time despite the fact that she had been living with the accused for a considerable period of time and had been traveling with him from one place to another.
42. There is no evidence on record to indicate that the accused established physical relations with the prosecutrix without her consent and in facts of the case despite having proved the sexual relationship between the parties, prosecution is unable to prove that the relationship between them was against the consent of the prosecutrix.
Judgment 18 of 19
SC No: 101/13 State Vs. Raju Yadav
43. Conclusion: From the aforesaid discussions, it is evident that the prosecution has miserably failed in proving either the kidnapping of the prosecutrix by the accused or any kind of sexual assault upon her committed by the accused against consent of the prosecutrix. Therefore, the accused is entitled to be acquitted. Accordingly, accused stands acquitted.
44. Bail bond of the accused stands canceled. Surety stands discharged. Endorsement, if any, on the documents of either accused or of the surety, stands canceled. Accused is directed to furnish bond u/s 437-A with surety in the amount of Rs10,000/-. File be consigned to record room.
Announced in open Court on Day of 5th November 2015.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
Judgment 19 of 19
SC No: 101/13 State Vs. Raju Yadav
Judgment 20 of 19