1 IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE (NORTHWEST)01, ROHINI : DELHI (Sessions Case No. 42/12) Unique ID case No. 02404R0128552012 [ENTITY] Vs. [ENTITY] FIR No. : 415/11 U/s : 363/366/376 [ACT] P.S. : Shalimar Bagh [ENTITY] Vs. [ENTITY] s/o Murari Lal r/o Jhuggie no. 54/261, BGI, East Shalimar Bagh, Delhi. Date of institution of case 01.06.2012 Date on which, judgment has been reserved 29.03.2014 Date of pronouncement of judgment - 29.03.2014 JUDGMENT:
1. Briefly stated that case of the prosecution is that the Victim S, aged about 14, years was residing in a jhuggie at Shalimar Bagh with her parents. On 15.11.2011,she went missing from her house. The parents of the victim S made efforts to search for her in the locality and when, they could not find her, they went to PS Shalimar Bagh, where PW4 Smt. [ENTITY], mother of the prosecutrix, filed missing report/complaint Ex. PW4/A regarding missing of victim S. In the said complaint, she expressed her suspicion on accused [ENTITY], who was residing in their neighbourhood for missing of victim S. The PW4 Smt. [ENTITY] alleged that accused [ENTITY] had enticed away her daughter S and prayed that appropriate action be taken in the matter. On basis of the complaint filed by PW4 Smt. [ENTITY], case FIR Ex. PW1/B was registered against the accused at PS Shalimar Bagh and investigations were commenced. During the course of investigations, the complainant gave information to the IO that victim S had talked to her on mobile phone no. 8909104163. The IO SI [ENTITY] obtained call details of the said phone. On basis of the said call details as well as information given by the Secret informer, a raiding party was constituted, which went to Agra on 10.02.2012 and accused was arrested from a construction site at Agra. The prosecutrix S was also recovered from the possession of the accused. Accused as well as prosecutrix S were brought to Delhi. The accused was got medically examined at BJRM Hospital and his blood sample was also seized by the IO. The victim S initially refused for her medical examination, however, later on, her mother Smt. [ENTITY] gave permission for her examination, pursuant to which, victim S was also got medically examined and biological samples, taken from her by the concerned doctor on Sexual Assault Collection Kit, were seized by the IO.
Further investigations of the case were handed over to PW18 SI [ENTITY], who obtained the age proof of the prosecutrix, wherein her date of birth was mentioned as 25.05.2002. Since, age of the victim S was mentioned as 1415 years on her MLC, she was got examined by Medical Board for determination of her age, as per directions issued by the concerned CWC. The statement of the prosecutrix were also got recorded u/[SECTION] [ACT] The IO recorded statements of the witnesses, who had been joined in the investigations of the case and after completing the investigation, charge sheet was prepared and filed in the court.
2. Upon committal of this case to the court of Sessions, charges for the offence under [SECTION] [ACT] were framed against the accused, however, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
3. In order to prove its case, the prosecution has examined 18 witnesses. Victim child and her parents :
4. The PW10 child S is the victim in the present case. Her statement of victim shall be discussed at length in the following paragraphs.
5. The PW4 Smt. [ENTITY] is the mother of the prosecutrix/victim child S. She deposed that she was having five children and victim S was her only daughter. She further deposed that after the occasion of [ENTITY] i.e. 15.11.2011, she had gone for work as as maid servant in different kothies at AC block, Shalimar Bagh and that she usually, returned back to her home by about 6.30/7.00 pm, however, on that day, she came back to her jhuggie at about 5.30 pm and found that her jhuggie was locked and that none of her children was present there. She then deposed that on inquiry from the neighbourhood, she came to know that her daughter S had gone to answer the call of nature after locking the jhuggie. The PW4 waited for her daughter, but when she did not turn up, she and her husband started searching her daughter in the nearby areas, but without any success. They however, found that accused [ENTITY] and his two associates were also not present in their jhuggie. The PW4 further stated that on 16.11.2011, she went to Police Station and made her complaint Ex. PW4/A. The PW4 then stated that she and her husband had joined the investigation with the IO SI [ENTITY] and had gone to Agra, from where, her daughter was recovered and accused [ENTITY], was apprehended and later on, they took the custody of their daughter from CWC. The PW4 also deposed about giving permission for medical examination of her daughter.
During her crossexamination, the PW4 questioned at length qua the age of the victim S. The PW4 however, could not tell as to number of the years, for which, she had been married. She stated that her first child was born after about 11/2 years of marriage and that all her children were born in village Laskarpur and that her youngest child/son was five years old and was studying in class 2nd. She also stated that none in her matrimonial house as well as her parental home were literate except her children. She then contradicted herself by stating that her eldest son had never gone to school. She further deposed that victim S used to reside in house of her mother i.e. mother of PW4 and that she had studied there. The PW4 could not tell the age of her eldest son. She denied that her daughter was aged more than 16 years at the time of incident or that she was having a love affair with the accused or that she had willingly gone with him to marry him as they (PW4 and her husband) were not approving of their love affair.
6. The PW9 Sh. [ENTITY] is the father of the prosecutrix/victim child S. He deposed that on the day of incident, he left house for his job at about 5:30 AM and that at about 8:00 PM, on receipt of a telephone call from PW4 Smt. [ENTITY], regarding missing of his daughter/prosecutrix, he immediately came back to his house. He further deposed that he tried to search his daughter and also went to the house of accused [ENTITY], but he was not found present there. He further deposed that on next day, he along with PW4/his wife went to PS Shalimar Bagh, where his wife [ENTITY] lodged a report about missing of their daughter. He further deposed that on 10.02.2012, he along with PW16 IO [ENTITY] and one other Police Officer and one Lady Constable went to Agra in search of prosecutrix and that the prosecutrix was recovered from the custody of accused from Aawas Vikas Colony, Agra and that thereafter, the said police officers brought prosecutrix and accused to PS Shalimar Bagh. He further deposed about medical examination of his daughter as well as accused and about handing over of the custody of his daughter to him. (PW16) During his crossexamination, PW9 showed his lack of knowledge about the date of birth of his first child. He also stated that the prosecutrix was his third child and that all his children, except his younger son, were born at his native village and that except his younger son, he did not get admitted any of his children in school. However, he corrected himself by saying that his daughter i.e. [ENTITY] was got admitted in school by him and had studied upto 5th class. The witness failed to tell the difference of age between his children. He further stated that the prosecutrix had been residing with her grandmother ([ENTITY]) since childhood and that his wife had gone to her mother's house during vacation and had brought prosecutrix with her two months prior to the incident. The witness termed it correct that he was not aware, as to where, the accused was residing, at the time of incident and that before arrest of the accused, he had never seen him.
Witnesses qua age of the prosecutrix/victim child
7. The PW2 [ENTITY], Head Clerk, produced original record from Dr. Ambedkar Ramam Public School, Banger Mahu, Distt. Unnao, UP, wherein victim child S was admitted in third class, by her maternal grandfather. He proved copy of the relevant entry in Admission register as Ex. PW2/A and the original certificate of date of birth, issued by Sh. [ENTITY], Principal, as Ex.PW2/B and stated that as per the school record, the date of birth of child S was 25.05.2002. The witness specifically stated that at the time of admission, no proof of age of the child S was produced by her maternal grand father and that they did not take any affidavit of date of birth of the child, or any admission form from the parents/guardian of the child, since most of the persons in the village were uneducated.
8. The PW15, Dr. [ENTITY], is the senior most member of Medical Board constituted for medical examination of prosecutrix S, for assessment of her age and deposed that on 15.03.2012, prosecutrix S was brought to BJRM Hospital and that she was examined by the medical board constituting of herself, Dr. [ENTITY] and Dr. [ENTITY]. She further deposed that the members of the Medical Board conducted radiological, medical and dental examination of patient S and opined her age to be between 1617 years, vide report dated 19.04.2012. She further deposed that thereafter, as per the opinion of the Board, the patient was again recalled for further examination of external genitalia and review of estimated age for final opinion and that on 23.02.2013, the prosecutrix S was examined by HOD, Obs and Gynae Department and thereafter the Medical Board opined that the findings given on 19.04.2012 were consistent and relevant. She proved the report of the Medical Board as EX.PW15/A and identified her signatures as well as signatures of other members of the Board. Doctor witnesses
9. The PW7, Dr. [ENTITY], deposed that on 11.02.2012, prosecutrix S was examined by Dr. [ENTITY] under her supervision and was then referred to Gynecology Department, where she was examined by Dr. [ENTITY], [ENTITY] vide MLC Ex. PW7/A. The witness identified the handwriting and signatures of Dr. [ENTITY] and Dr. [ENTITY], on MLC. She further deposed that as per the endorsement made by Dr. [ENTITY], no fresh external injury were observed on the patient and that as regards the internal examination, there was an old hymenal tear. In reply to a specific court question, the witness clarified that initially patient refused for her medical examination and so Dr. [ENTITY] did not conduct her internal examination, but later on, patient being minor, her mother's consent was also sought and after the mother's consent for internal examination of the prosecutrix, Dr. [ENTITY] examined her internally and recorded her observation.
During crossexamination, the witness termed it correct that the specific time, when the refusal of patient was recorded and MLC was prepared and subsequently, when the mother of patient gave consent and observations were made on MLC, was not mentioned on Ex. PW7/A by Dr. [ENTITY].
10. The PW13, Dr. [ENTITY], had conducted general medical examination of the accused, vide MLC Ex. PW12/B on 11.02.2012 and deposed regarding the same. He further deposed that after examination, the accused was referred to S.R, Surgery for further examination.
11. The PW12, Dr. [ENTITY], was working as CMO in BJRM Hospital and deposed that on 15.03.2012, the prosecutrix S was initially examined by Dr. [ENTITY], the then JR, under his supervision, vide MLC Ex. PW12/A and that after examination, the prosecutrix S was referred to S.R, Radiology for further examination. The PW12 was also deputed by MS BJRM Hospital to depose in place of Dr. [ENTITY] and Dr. [ENTITY], who had examined accused [ENTITY] on 11.02.2012 vide [CASE NUMBER], and proved the said MLC as Ex.PW12/B. He further deposed that as per endorsement made by Dr. [ENTITY] on the MLC Ex.PW12/B, the patient appeared not incapable of sexual actiivity.
Formal witnesses
12. The PW1, [ENTITY], was working as Duty Officer at PS Shalimar Bagh at the relevant time. He deposed about registration of FIR, of the present case and proved the endorsement made by him on rukka as Ex.PW1/A and the computer generated copy of FIR as Ex.PW1/B.
13. The PW5, [ENTITY], had taken the exhibits of the present case to FSL, Rohini, on 16.03.2012, deposited the same there and on return, handed over the acknowledgment receipt to MHCM and deposed regarding the same.
14. The PW8 [ENTITY], was posted as MHCM at P.S. Shalimar Bagh at the relevant time. He produced Register No.19 and 21 and proved the relevant entries made by him, at the time of deposit of exhibits at Malkhana and while sending them to FSL, as Ex. PW8/A to Ex.PW8/C, respectively.
15. The PW11, Sh. [ENTITY], ld. M.M, Rohini Courts, Delhi, had recorded the statement of prosecutrix u/[SECTION] [ACT] He proved the said statement as Ex.PW11/B ; the application for recording of statement u/[SECTION] [ACT] and application for supply of copy of said statement, filed by IO, as Ex. PW11/A and Ex. PW11/D respectively. The certificate given by PW11 on the said statement was proved as Ex.PW11/C. Investigating Officers & other police witnesses to investigation
16. The PW16, SI [ENTITY], is one of the investigating officers of the case and he deposed that on 16112011, PW7 Smt. [ENTITY] mother of the prosecutrix came in the police station and got her statement Ex. PW4/A recorded, on the basis of which, PW16 made his endorsement Ex. PW4/A, prepared rukka and got the case registered vide FIR Ex. PW1/B. He further deposed that during efforts to search the accused as well as the prosecutrix, he received a secret information regarding the phone number of accused and after putting the said number on surveillance, he came to know that the phone was being used at Awas Vikas colony, Agra. He further deposed that thereafter, after taking permission from his senior officers, he along with one lady constable and one constable went to Agra for the search of the accused and the prosecutrix and that at that time parents of the prosecutrix also accompanied them. He further deposed that he visited many construction sites in the Amar Vikas colony at Agra and found accused [ENTITY] and the prosecutrix at one of the construction sites and that after the identification of the prosecutrix by her parents, he apprehended the accused and brought the accused as well as the prosecutrix in Delhi and handed them over to PW18 W/SI [ENTITY], to whom further investigations were entrusted
17. The PW18, SI [ENTITY], deposed that on 11.02.2012, investigation of the present case was entrusted to her and that during the course of investigation, she examined the prosecutrix and sent her at BJRM Hospital for her medical examination with PW6 W/Ct. [ENTITY], who after medical examination of prosecutrix, had produced the sexual assault kit, duly sealed with the seal of MS BJRM Hospital, and one sample seal before her and that the same was taken into possession by her vide memo Ex.PW6/A. She further deposed about arrest and personal search of the accused and the disclosure statement made by the accused and proved the arrest memo as Ex.PW17/A, personal search memo as Ex.PW17/B and disclosure statement of accused as Ex.PW17/C. She further deposed that the accused pointed out the place of incident i.e. Jhuggi No.82 of Village Sahipur where he had committed rape upon the prosecutrix, vide pointing out memo Ex.PW17/D. She further deposed about medical examination of the accused vide MLC Ex. PW12B and that after his medical examination, PW16 SI [ENTITY] had produced the sealed exhibits of the accused before her, which were taken into possession by her vide memo Ex.PW18/A. She then deposed about sending the prosecutrix at Kilkari Home for girls, recording the statements of the witnesses, depositing the exhibits of the case with MHCM, getting recorded the statement of prosecutrix u/[SECTION] [ACT], preparation of site plan Ex.PW10/A at the instance of prosecutrix, getting the bone age test of prosecutrix conducted at BJRM Hospital and sending the exhibits to FSL through [ENTITY]. She also proved the result of DNA finger printing report given by FSL as Ex.PX.
During crossexamination, PW18 termed it correct that the accused was residing in the neighbourhood of the prosecutrix and that during the course of investigations, she came to know that the prosecutrix and the accused were having in talking terms.
18. The PW14, SI [ENTITY], deposed that on 25.04.2012, on receipt of case file of present case, she got the school certificate Ex.PW2/B, which was given to her by the mother of victim. verified from the concerned school i.e. Dr. Ambedkar Raman Public School, Ambedkar Nagar, Bangarmau, Unao, by sending [ENTITY]. She further deposed that on 22.02.2013, she took the prosecutrix with her from the Court itself, as per the directions of the Court, and produced her before the Medical Board for finalization of her bone age report and that the prosecutrix was examined by the Medical Board on 23.02.2013 and her report was prepared which was collected by her and filed before the Court.
During crossexamination, the witness stated that she had not gone personally for verification of the school certificate of prosecutrix. She further termed it correct that in the said certificate Mark "X", the name of mother of the prosecutrix was mentioned as Smt. [ENTITY] at point "A".
19. The PW17, [ENTITY], had joined the investigation of the case with PW16 SI [ENTITY] and PW18 SI [ENTITY] on 10.02.2012 and deposed regarding the same.
20. The PW3, Lady Ct. [ENTITY], had joined the investigation of the case with the IO/PW16 SI [ENTITY] on 10.02.2012 and had gone to Agra, from where the accused was apprehended and the prosecutrix was recovered and deposed regarding the same.
21. The PW6, Lady Ct. [ENTITY], had joined the investigation of the case with PW16 SI [ENTITY] and PW18 SI [ENTITY] on 11.02.2012 and got the prosecutrix medically examined at BJRM Hospital and deposed regarding the same.
22. After closing of prosecution evidence, statement of accused [ENTITY] was recorded u/[SECTION] [ACT] Accused stated that he is innocent and had been falsely implicated in this case by the parents of the prosecutrix as the prosecutrix was having an affair with him and they both wanted to get married, but parents of the prosecutrix were against their relation. He further stated that no disclosure statement was ever made by him and that his signatures were obtained forcibly on some blank papers by the police. The accused declined to lead evidence in his defence.
23. Arguments have been addressed by Sh. [ENTITY], learned Amicus Curie for the accused as well as learned Additional PP for the [ENTITY].
24. Learned Additional PP has contended that the prosecutrix and other material witness i.e. PW4 Ms. [ENTITY] and PW9 Sh. [ENTITY] have fully supported the case of the prosecution and hence prosecution has succeeded in proving its case against the accused, beyond reasonable doubt, by examining the said witnesses. It is stated that in view of the testimony of the prosecutrix, no other evidence is required and it is accordingly prayed that accused be convicted for the charged offence.
25. On the other hand, learned Amicus Curie for accused has contended that accused is innocent and has nothing to do with offence committed upon the prosecutrix in the present case. It is also stated that the prosecutrix was tutored by her parents, when she appeared to depose in the court and that she gave her statement as PW10 under the influence of her parents. He further stated that there are several contradictions in the testimonies of the witnesses, which are fatal to the case of the prosecution and thus prayed that accused be acquitted of all the charges in the present case. Written submissions have also been filed in addition to oral arguments, addressed by learned Amicus Curie.
26. I have heard the arguments put forward by ld. Addl. PP and learned Amicu Curie for the accused and have carefully gone through the record of the case as well as written submissions filed on behalf of accused. I have also carefully considered the evidence adduced by the prosecution in support of its case.
27. In the present case, the accused is alleged to have kidnapped prosecutrix S, a minor aged about 14 years, out of keeping of her lawful guardian on 15.11.2011 and further taken her to Agra, where he secretly and wrongfully confined her. It is also alleged that accused kidnapped the prosecutrix and took her to Agra with intent to force her or seduce her to have illicit intercourse with him and that two days prior to 15.11.2011, at a vacant jhuggie at Beriwala Bagh and subsequently from 15.11.2011 uptill 10.02.2012 at Agra, accused repeatedly raped the prosecutrix against her will and consent.
28. In order to prove that the prosecutrix was aged about 14 years at the time of the incident, the prosecution has examined PW2 Sh. [ENTITY], who produced record from Dr. Ambedkar Raman Public School, wherein, victim S was admitted in third class by her maternal grandfather. However, from the testimony of PW2, it is brought out that no proof of age of the child(victim S) was produced by her maternal grandfather at the time of her admission in the school and further, no affidavit of date of birth of the child or even the admission form was taken from the guardian of victim S. Though, the PW2 explained that it was so, since the parents/guardian of the child were mostly uneducated, there is no explanation as to why the name of mother of child is mentioned as "[ENTITY]" instead of [ENTITY] (actual name of the mother of the prosecutrix) in SLC, mark X, issued from the school of PW2.
29. Further, the testimony of PW2 clearly brings out the fact that there is no basis, on which the date of birth of victim S was mentioned in the school record. There was neither any birth certificate nor affidavit and/or admission form filled by her guardian/maternal grand father, who got her admitted in the school and hence, no reliance can be placed on the said entry regarding the date of birth of victim S, in record produced by PW2. In this regard, I am supported by a judgment in the case of [PRECEDENT], wherein it was held that no evidentiary value can be given to Date of Birth entry in absence of material on which entry is made.
30. The other document relied upon by the prosecution to prove the age of the victim is her report of examination by Medical Board at BJRM Hospital. The victim was examined by the Medical Board at BJRM Hospital on 15.3.2012 and vide report dated 19.04.2012, her age was opined to be between 1617 years. The report of the medical board has been proved by PW15 Dr. [ENTITY], the radiologist on the Medical Board as Ex. PW15/A. She also deposed that on 19.04.2012, medical board opined that the patient was required to be recalled for further examination of external genitalia and for review of her estimated age for final opinion and accordingly the IO was directed to produce the prosecutrix again. The prosecutrix/patient was produced before the medical board again only on 23.02.2013 and was examined by Head of the Department of Gynecology Department and thereafter, the medical board opined that the findings of age given on 19.04.2012 were consistent and relevant. The observations of medical board in this regard were also found mentioned on Ex. PW15/A. No manipulation could be pointed out in the report of the Medical board, which was based on scientific determination of bone age of the prosecutrix and hence, from the report Ex. PW15/A, the prosecution has succeeded in proving that the prosecutrix was aged between 16 to 17 years as on the date of report i.e. 19.04.2012. The date of the first reported offence qua the prosecutrix is two days prior to 15.11.2011 and the prosecutrix was first examined by medical board within a short span thereafter, hence the prosecution has succeeded in proving that the prosecutrix was aged about 16 to 17 years at the time of commission of the offence.
31. The next issue, which arises for consideration is whether the accused had kidnapped the prosecutrix, wrongfully and secretly confined her with intention to commit illicit intercourse with her and had repeatedly raped her against her will and consent. In the present case, the prosecutrix went missing from her house on 15.11.2011 and a missing report was filed by her mother on 16.11.2011. The prosecutrix was recovered from Agra, while in company of the accused, on 10.02.2012 and thereafter, she was brought to Delhi and her statement u/[SECTION] [ACT] was recorded on 11.02.2012, wherein she deposed as under : "Bayan kiya ki, main pata uprokat par apne matapita ke saath rehti hoon. Jo main inke saath pichle 6 mahine se rah rahi thi. Isse pahle main apne [ENTITY] ke gaon Bangarmau, [ENTITY], UP, me rehti thi, va wahan par panchvi kasha me padhti thi. Ek saal pahle bhi, main garmiyo ki chuttiyo me Delhi Apne mapita ke paas aai thi. Mere pados me rahne wala ek [ENTITY] se meri batcheet hone lagi, aur hamare beech dosti ho gai. [ENTITY] mere se park me, mere ghar par, Azadpur Railway Station par va [ENTITY] ke jhuggie par milta tha. [ENTITY] mujse kahta tha, ki Sumitra main tumse payar karta hoon. Tum mere saath chalo, kahi dusri jagah jakar shadi karke rahenge. Bhagne se pahle ek din [ENTITY] ne mujhe bori wala bagh ki jhuggiyo me bulaya aur park ki taraf chatai ki ek khali padi jhuggie me, [ENTITY] ne shaam ke wakt mere saath galat kaam kiya, aur uske do din baad dinak 15.11.11 ko, [ENTITY] ne mujhe Azadpur Railway Station par bulaya aur kahne laga ki chalo Agra bhag chalte hai, aur main [ENTITY] ke bahkawe me aa gai, aur [ENTITY] ke saath Agra chali gai. Jahan [ENTITY] ke mandir me le gaya, va do mala, lekar aaya aur kahne laga ki mere saath karo, jo maine [ENTITY] ki baat maan li, aur uski banto me aakar maine uske gale me va usne mere gale me mala dal kar Shadi kar li. Wahan par koi pujari nahi tha, va na hi koi rishtedar. Humne photo nahi khinchwai. [ENTITY] me pahle bhi kaam kar chuka tha, jo wah apne pahle wale karme par le gaya, va hum dono wahin patipatni ki tarah rahne lage. [ENTITY] wahan pass me ban rahe makan me [ENTITY] mistri ka kaam karta tha. Biti raat ko police ne Agra me mujhe va [ENTITY] ko baramad kar liya. Jo mere Mummy pappa bhi us samay police walo ke saath aye the. Mujhe mahila police ke saath wapas Delhi laya gaya. Jo apne thana me mujse puchtach kar mere bayan likhe. [ENTITY] ne jis jhuggie me mere saath galat kam kiya tha, us jagah ko main dikha sakti hoon. Aaj apne mere bayan likha, sun liya, dhik hai. "
32. The prosecutrix was produced before ld. M.M on 13.2.2012, for her statement u/[SECTION] [ACT] In her said statement Ex. PW11/B, the prosecutrix gave a different version of the incident. She deposed that : " Main [ENTITY] ke saath Shadi karna chahti thi. Phir main uske saath chali gai thi. [ENTITY] aur police hume Agra se pakad kar yahan le aai. Phir police mujhe asptal le gai. Main apni marzi se [ENTITY] ke saath gai thi. Mere Mummy papa [ENTITY] ko Phaswana chate hai."
33. The prosecutrix appeared before the court and was examined as PW10. In her said statement, the victim S repeatedly changed her version as would be seen from detailed reproduction of her statement hereinbelow : " I was earlier also residing with my [ENTITY] in the village and came with my parents to Delhi during summer vacations. I have studied upto 5th class from the village school. Since I did not go to school regularly, my name was struck off the rolls of the school, so I again came to stay at Delhi with my parents. Accused [ENTITY] was residing in neighbouring jhuggis at Delhi. I used to see accused [ENTITY] in the locality and we started talking to each other. Accused [ENTITY] started talking to me first. Accused called me to jhuggi of [ENTITY] and did 'galatkam' with me " At this stage, witness was asked to clarify what she meant with word "galat kam". In reply to the court question, the witness has first stated that accused had threatened her not to disclose anything to her parents. She then stated that accused had given her something to eat and that accused had raped her. On asking her, if she knew meaning of "rape", the witness initially remained silent and then she stated that she has already stated what was done to her by the accused. Thereafter, the witness was again asked to explain what she means by 'galatkam' / rape, to which, she replied that he (accused) had removed her clothes against her wishes and that she shouted for help, but accused threatened to kill her ('Mar dalunga'). The witness hesitated to narrate further incident but after some time, she stated that that accused had made her lay down and laid down on her and committed wrong act with me. She clarified that, "Usne mere sath woh kiya, jo pati patni karte hai".
34. The prosecutrix further stated that : " After two days, accused called me to Azadpur Railway Station. Again said, accused had taken me there. Accused made me drink tea and thereafter I do not know what happened. Accused took me to Agra. He took me to a temple. He also bought two garlands. At the temple, accused asked me to exchange garlands with him. Out of fear of the accused, I did as he directed. There was nobody in the temple even pujari was not there. Accused took me to a room in Agra, Sector13, away from temple. I started staying with accused [ENTITY]. We did not stay there as husband and wife. My parents and police came to Agra and I was brought to Delhi. My statement was recorded by the Police. I was taken to hospital for my medical examination. At first, I refused my medical examination but when my mother counseled me, I got medical examination done under her supervision "
The witness identified her signatures at point "A" on the statement u/[SECTION] [ACT] Ex. PW11/B and further proved the site plan Ex. PW10/A of jhuggi no. 82, which was prepared at her instance and is the place of first alleged incident. The witness further volunteered to state that her mother was called by the name of [ENTITY] in the village.
35. During crossexamination, the witness stated that she had met the accused [ENTITY] first time, about one month back. She further stated : " I met [ENTITY] for the first time in my jhuggi. He used to come in my jhuggi to meet me some times. I never used to go out with accused for shopping or any park etc. as I used to go out with my mother only. My mother used to work as a maid servants in kothis. My father is doing a private job. I never met the accused outside our locality. I stayed for one month in Delhi when I came for summer vacation after passing my 5th class and when I again visited my parents in Delhi I stayed for four months. I am residing in Delhi continuously with my parents for the last about two years. I visited Delhi twice in the summer vacation during my study. I was not studying when I used to visit my parents in summer vacation. Again said, I was studying in 3rd class.
I alongwith accused [ENTITY] went to Agra by bus. I do not remember about the time took place in our reaching to Agra. I was offered tea by accused when the bus halted on th way. We reached Agra in day time. Accused straight away took me to house of his relative at Agra. The exchange of garlands took place at Agra after we reached at the house of said relative of accused. Accused introduced me to his said relative as neighbour and had brought me with him. We stayed for one night in the house of said relative. Neither myself told nor the said relatives of the accused asked from me about the reason of my visit to Agra. I was wearing a new suit of green colour at that time. I was carrying nothing with me at that time. We stayed in Agra for about two months. Accused brought two new suits for me out of which one was blue colour and one was yellow colour. Accused was not working anywhere. His younger brother who had also joined us at Agra was working as a meson. I came to know about his work as he himself has told me. Accused used to remain with me and not used to go for any work as he was apprehending that I may not leave the house. The younger brother of accused also used to stay in our house. There was no toilet in the house and I used to go to ease myself in the nearby field. Accused used to accompany me at that time. The relative of accused whom he used to call [ENTITY] used to cook food for us.
In Delhi, police kept me in the police station for the whole night. My parents were asked to go home. I was taken to hospital for my medical examination thereafter and after that I was left at Nari Niketan. At the time of medical examination, my mother and one lady police also accompanied me.
At the time of recording of my statement u/[SECTION] [ACT], only myself and Judge [ENTITY] were present. I was brought by the police i.e. [ENTITY] from Nari Niketan for recording of my statement u/[SECTION] [ACT]. When I came in the court for giving my statement u/[SECTION] [ACT] I was with [ENTITY] and my parents also reached at Nari Niketan to bring me to the court but I met my parents before my statement was recorded and thereafter I went alongwith my parents. The police official [ENTITY] was in police uniform and probably he had one star on his uniform. I met [ENTITY] at the time when I was in Agra and was brought back to Delhi. [ENTITY], one [ENTITY] police wala, one lady police whose name I do not remember and my parents went to Agra and they brought me back to Delhi. Other tenants were also residing in the same house in different rooms. I did not see houses of other persons from inside in the said mohalla but I saw the houses from outside which were not big ones :"
36. From the above mentioned statements of the prosecutrix u/[SECTION] [ACT] dated 11.02.2012, her statement u/[SECTION] [ACT] Ex. PW4/B dated 13.2.2012 and her deposition recorded before the court on 25.02.2013 and 30.05.2013, it is seen that the prosecutrix has been repeatedly changing her version with a view to save herself and to rule out the possibility of her consent in the entire incident. The prosecutrix, however, could not explain, how she accompanied the accused from Delhi to Agra on 15.11.2011 and continued to stay with the accused at Agra till 10.02.2012, without putting up any resistance or making any effort to raise alarm or to escape from her alleged forced confinement by the accused. She explained the first incident of rape, which is stated to have taken place two days prior to 15.11.2011, by stating that at that time, accused had given her something to eat and then threatened her not to disclose anything to her parents. Considering that prosecutrix alleged that accused had forced himself upon her, two days prior to 15.11.2011, when he raped her for the first time, it does not stand explained as to how and why, prosecutrix went with him on 15.11.2011 even though, she could have sought help from her neighbour, whom she had met before leaving and handing over key of that jhuggie, to be handed over to her mother on her return from work. If the prosecutrix had been forced to accompany the accused, she could have easily raised alarm at that time and was not expected to have meekly accompanied accused as per his desires.
37. Further as regards, her stay at Agra, the prosecutrix claims that at Agra, she was taken to a temple by the accused, where she and accused exchanged garlands and thereafter, she started staying with the accused at Agra, but they did not stay there as husband and wife. Thus, the prosecutrix ruled out that she had physical relations with the accused, during her stay at Agra. It is also brought out from the crossexamination of the prosecutrix that the house at Agra, where, she and accused were residing had several rooms, wherein other tenants were residing. Further, she was required to go out of the house to attend to call of nature as there was no toilet in the house. Even the younger brother of accused was staying with them in the house. In these circumstances, the conduct of the prosecutrix in staying put with the accused does not stand explained.
38. Learned Additional PP has contended that the prosecutrix was aged about 16/17 years at the time of commission of offence and hence her consent is immaterial.
39. The submissions made by ld. Addl PP cannot be sustained, since the prosecutrix was admittedly on the verge of maturity and had herself taken decision to go with the accused without any kind of apparent inducement, influence or pressure from him. In these facts and circumstances of the case, more particularly testimony of prosecutrix, the element of 'taking away' or 'enticement' is found to be lacking and it appears that prosecutrix was willing and consenting party and that everything has happened with her sweet will. I am supported in my view by judgment in case titled as Bunty vs. [ENTITY] (G.N.C.T.) of Delhi in [CASE NUMBER] decided on 16.03.2011 by the Hon'ble Delhi High Court, wherein it was held that : "8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. [ENTITY] had travelled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under [SECTION] is not made out. "
40. It would also be relevant to refer to the case titled as " S. Varadarajan Vs. [ENTITY] of Madras, AIR 1965 SC 942", wherein while distinguishing between " taking"
and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India that : "There is a distinction between " taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of [SECTION]. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing , voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian."
41. In the present case also, the element of 'taking away' or 'enticement' is found to be lacking. In view of the material on record, it appears that prosecutrix were willing and consenting party and it seems that everything has happened with their sweet will. In these circumstances, the factum of kidnapping and rape of prosecutrix does not stand proved.
42. After consideration of the entire material placed on record by the prosecution, I am of the opinion that the case of the prosecution is full of loopholes and prosecution has failed to prove its case against accused [ENTITY] beyond reasonable doubt. The prosecution has further failed to prove that accused had taken the prosecutrix, by enticing her, on 15.11.2011 or that he kidnapped or abducted prosecutrix and committed rape on the prosecutrix forcibly without her consent. Accordingly, I acquit accused [ENTITY] of the charged offences, giving him benefit of doubt File be consigned to the record room.
(Announced in the open Court ) ([ENTITY]) (Today on 29.03.2014) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi