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Consented Sex – Acquitted of Rape charges

IN THE COURT OF SH. B.S. CHUMBAK, ADDITIONAL SESSIONS
JUDGE : DELHI

Case ID Number 02402R0654152007

Session Case No. 01/09/07
Assigned to Sessions 07/11/07
Arguments heard on 22/9/09
Date of order 23/9/09
FIR NO. 335/07
Police Station Bhajan Pura
Under Section 328/363/376/IPC
Out come of the case Acquitted.

State

Versus

1. MAHENDER S/O MAHAVEER PD. R/O H.NO. 1282 PANNA PAPOSIYA NARELA, DELHI.

2. RAJU S/O AMRIT R/O VILLAGE BAKHETA P.S SAMPLA DIST. ROHTAK, HARYANA.

PRESENT : Ms. Neelam Narang, Ld. Addl. PP for the state.
Sh. Dassa Ram advocate for accused Mahender.
Sh.Anil Kumar , advocate for the accused.

JUDGMENT
1. On 30/7/07 a case u/sec. 363/328/368/372/373/376/34 IPC was registered at police station Bhajan Pura vide FIR No. 335/07 on the basis of complaint filed by one Ms. Pooja D/o Sh. Atul r/o B-356 Gali No.15 Bhajan Pura,

Delhi against accused Mahender s/o Sh. Mahabir r/o 1282 Panna Paposiya Narela, Delhi and Raju s/o Amrit r/o Village Bokheta, P.S Sampla Distt. Rohtak Haryana.

2. The aforesaid case was registered on the basis of statement of Kumari Pooja and brief facts of her statements are as under:

” She was residing at her aforesaid address and her age is about 18 years. On 25/7/06 she was called by one Mahender already known to her on telephone at Khajuri chowk near Aggarwal Sweet. He made her to sit in a Maruti Van and offered her cold drink. After taking cold drink she became unconscious and when she regained her consciousness she found herself in a flat No. B- 520 Narela. Mahender kept her there for several days and thereafter took her to Rajasthan and kept her there in a hotel and again returned to Narela. Mahender also sold her for Rs.20,000/- to one Raju and got her married with Rajuin a temple. After marriage Raju took her to his village Bokheta and she lived at the house of Raju for about eight months. During the stay period Mahender and Raju both continuously committed rape on her. She
escaped herself with the help of a truck driver and reached at Khajuri.”

3. On the basis of the statement and after registration of the case, investigation was initiated, prosecutrix was got medically examined vide MLC no. C-4311/07. Doctor opined her hymen torn. On 31/7/07 both the accused arrested and were got medically examined, age proof of the prosecutrix was collected. All the exhibits were sent to CFSL Rohini.

Statement of witnesses were recorded and after completion of necessary investigation challan u/sec. 173 Cr.P.C was presented before the court of ld. MM.

4.Ld. MM after taking cognizance for the offence u/s 363/328/366/376 IPC, supplied the copies of the challan as required u/s 207 Cr.P.C and committed the case to the court of Sessions and on turn allocated to this court for trial.

5. Arguments on the point of charge heard. After hearing arguments charge for the offence u/s 363/328/366/376 IPC was framed against the accused Mahender s/o Sh. Mahabir and charge u/sec. 376 IPC was framed against accused Raju on 08.1.08 to which they pleaded not guilty and claimed trial, thereafter case was fixed for prosecution evidence.

6. To prove its case prosecution has examined twelve witnesses in all namely Ms. Pooja prosecutrix as PW.1, Dr. Gyatri as PW2, Dr. Rajinder as PW.3, Smt. Onila Topno, Principal of Nagar Nigam Prathmic Vidhayalya Bhajan Pura, Delhi asPW.4, ASI Baldev as PW.5, Pankaj s/o Atul Kumar ,brother of prosecutrix as PW.6, H.C Mool Chand as PW.7, Const. Veena PW.7A (this witness examined as PW.7 instead of PW.8 and therefore given srl. no. as PW.7A), Const. Raj Pal as PW.8, ASI Siri Ram as PW.9, SI Ajay Kumar as PW.10 and Const. Lalit as PW.11.

7. Brief testimony of the aforesaid witnesses are as follows :

(i) PW.1 Pooja deposed that on 25/7/06 at about 6 P.M she was present at her house in the mean time accused Mahender (correctly identified) called her at Aggarwal Sweet Khajuri, on telephone for a talk for few minutes. On receipt of the aforesaid call she went to Khajuri near
Aggarwal Sweet and found one Mahnder in a Maruti van. He opened the door of Maruti van and offered her Papsi and after consuming papsi, she became unconscious and when she regained her consciousness, she found herself in a flat No. B- 520 Narela. She was kept there for about five/six months and thereafter Mahender took her to Rajasthan and kept her in a hotel for one or two days and thereafter again took her to Narela.

She further deposed that accused Mahender sold her to Raju and performed her marriage with Raju in a temple. Thereafter accused Raju took her to village Bokheta and kept her at his house for about four/five months. She correctly identified the accused Raju while raising her finger. She further deposed that accused Mahender committed rape upon her at Narela and Rajasthan continuously. Accused Raju also committed rape upon her at his village continuously. She escaped herself with the help of one truck driver and came to her house. She further stated that she along with her brother Pankaj and Raj went to the police station and got her statement recorded which is Ex.PW 1/A bears

her signatures at point A. Police officials took her to the spot at Khajuri near Aggarwal Sweet from where accused Mahender took her in a Maruti Van. She was also taken to Narela and got arrested accused Mahender from there. She was also taken to GTB Hospital and was got medically examined . Her Salwar was also taken in possession in the hospital and she can identify her clothes which were seized in the hospital. She also deposed that accused Mahender was known to her prior to this incident as he used to come to her house for the services of his vehicle. On 3/9/08 a sealed pullanda sealed with the seal of FSL was opened and found to contain a Salwar and the prosecutrix correctly identified her salwar as Ex.P.1 which she was wearing at the time of occurrence and was seized by the police. During her cross-examination she stated that she cannot tell the date, month or the year when Mahender brought Raju but he brought Raju in the noon time along with his brother, Bhabhi, sister, sister in law, two children and one other relative. She also admitted that Raju and his relatives brought the clothes for her marriage. But she was not aware that Raju and his relatives came there for marriage. She also stated that accused Mahender introduced the brother of Raju as his brother and he also asked her to touch his feet. She further stated that on the asking of Mahender she worn the clothes which were brought by Raju and thereafter they all took her in a vehicle to a temple. Mahender accused introduced her as his niece (Bhanji) to the relative of Raju. She also admitted that when she was taken to temple, she was in her complete senses and was aware that she was going for married at temple. She voluntarily stated that she was given beating by Mahender but she confronted to her statement Ex.PW 1/A wherein it was not so recorded.

She also admitted that marriage was performed at temple by exchanging the garlands only and no Phera ceremonies (Saptpadi) was held. She also admitted that blessing were given by Bhabhi, Didi (Geeta), brother in law of Raju and Mahender were present there as her uncle who had also blessed her. She also admitted that she had not shown her willingness to relatives of Raju on the account that she was not happy in marrying with Raju or that accused Mahender was not her uncle and was her boy friend. She also admitted that relative of Raju as well as Raju never forced her in any manner to marry with Raju. She further admitted that she had disclosed accused Mahender as her uncle (Chacha) to the family members of Raju. She also admitted that her maternal uncle and her brother Raj had come at the house of Raju when she was living there and they both left the house of Raju after taking tea. She also admitted that her maternal uncle and brother Raj left from there, after feeling satisfied that she was living happily with Raju after marriage with him. She also admitted that after her marriage with Raju, she visited the house of her mausi near her house along with Raju, Jeth, Jethani namely Anand and Anita and she had also called her mother to the house of Billa and has not narrated to her mausi or mother regarding her forcible marriage with Raju. Court question was asked to her as to why she did not stayed at the house of her Mausi instead of going back with Raju to which she kept mum. On asking another question that Raju had made physical sexual relations ship with her as his right/ as her lawful husband to which she again remained silent. Rest of her testimony is reiterated by her as given during her examination in chief.

(ii) PW2 deposed that on 31/7/07 she examined Kumari Pooja d/o Atul aged about 18 years, female who was brought to the hospital by Lady Ct. Reena with alleged history of missing from home for the last one year i.e from 25/7/06 and had gone with someone to Narela, came back home. Patient had changed her clothes and passed urine. Patient also given the history of sexual intercourse and on internal examination her hymen was found torned with no effect of bleeding. Her introitus easily admitted two finger, her vaginal smears, perincal smears and undergarments were sealed and handed over to the police. No external injury seen and the detailed MLC prepared by the doctor is Ex.PW 2/A bears her signatures at point A.

(iii) PW.3 deposed that on 31/7/07 he examined Mahender aged about 37 years male who was brought to the hospital by Const. Raj Pal for his medical examination with the alleged history of inflicted sexual assault. On his examination there was nothing to suggest that patient was incapable to perform sexual intercourse. His blood sample and his undergarments were also sealed and given to the police. His detailed MLC Ex.PW 3/A is in his hand writing and bears his signatures at point A. He also identified the handwriting of Dr. Alok who had worked with him and had ow left the services from the hospital. He had sen MLC of Raju, 30years, male brought by Const. Lalit on 31/7/08 with the alleged history of sexual assault by him . On his medical examination there was nothing to suggest that he was incapable of performing sexual intercourse and his blood sample and undergarments were seized and the detailed of Raju, prepared by Dr. Alok is Ex.PW 3/B which is in the handwriting of Dr. Alok.

(iv)PW.4 is formal witness. She only produced admission register of Kumari Pooja d/o Atul, in her school. As per record Kumar Pooja was admitted in hr school on 11/8/92 vide admission

register srl. No.2432, photo copy of record is Ex.PW 4/A (OSR) She also deposed that as per record, date of birth of Pooja is 6/7/86. She further deposed that on 20/9/07 the birth certificate of Pooja was issued by her and was given to the IO which was taken into possession vide memo Ex.PW 4/B and certificate on record is Ex.PW 4/C bears her signatures at point A. She also produced the photo copy of admission form of Pooja and same is Ex.PW 4/D(OSR).

(v) PW.5 is again formal witness. He deposed that on 30/7/07 he recorded the FIR No. 335/07 on the basis of rukka given to him by SI Ajay Kumar. Computer copy of the same is Ex.PW 5/A bearing his signatures at point A. He made endorsement Ex.PW 5/B.

(vi) PW6 is brother of Pooja prosecutrix and deposed that accused Mahender (correctly identified) used to work at Azad Property BhajanPura. His elder sister Madhu also used to treat Mahender as brother. On 25/7/06 Mahender called his younger sister Pooja at bus stand near Aggarwal Sweet and thereafter he took his sister Pooja from there. He and his family members searched for Pooja here and there and also at the house of relatives. She was not found. On 30/7/07 his sister Pooja came back to their house and he took her to the police station to lodge report. During cross-examination he stated that Pooja informed him that Mahender Bhai was calling her and with his permission she had gone to Khajuri chowk Aggarwal Sweet. He also admitted that they had not lodged the report on that day. On next day they lodged the report but police official advised them to search Pooja. He also admitted that Pooja had returned to his house after one year of her taking away by Mahender and during that period they could not search Pooja. He also admitted that Pooja never made a call on his mobile during that period. He also admitted that he was having mobile phone number of Mahender but the same was saved in his mobile which has been lost. Rest of his testimony is reiterated as submitted by him during his examination in chief

(vii) PW7 deposed that on 31/7/07 he joined the investigation of this case with SI Ajay and reached at police station Narela and contacted beat constable of the area 1282 Panna Paposiya and beat constable took the police party to the house of Mahender present in the court. Mother and brother of the accused met them there and they disclosed that Mahender was residing in a rented accommodation. Brother of accused Mahender took the police party to his residence from where he was arrested. He was interrogated and he made disclosure statement Ex.PW 7/A. He was arrested vide arrest memo Ex.PW 7/B and his personal search was conducted vide memo Ex.PW 7/C in his presence, bears his signatures at point A on each memo. He further deposed that accused led the police party to Aggarwal Sweet and pointed out the place from where he had kidnapped Kumari Pooja after administering some relative in the cold drink. The pointing out memo is Ex.PW 7/D bears his signatures at point A. Accused Mahender also disclosed the name of co- accused Raju and thereafter they went to police station Sapla Distt. Rohtak and contacted the police officials of Sapla and with the assistance of local police they went to the village Bakheta and from there Raju was arrested and was interrogated. He made disclosure statement Ex.PW 7/E recorded in his presence. He was arrested vide arrest memo and personal search memo Ex.PW 7/E and 7/F respectively, memos bears his signatures at point A. He also correctly identified both the accused persons and during his cross-examination he reiterated his testimony as submitted by him during his examination in chief.

(viii) PW7A deposed that on 30/7/07 at about 11 a.m SI Ajay handed over the prosecutrix Pooja to her for keeping her in her custody till medical examination to be conducted next morning and accordingly she kept her in her custody in the intervening night of 30/31/7/07. She further deposed that on 31/7/07 at about 8.30 a.m she took the prosecutrix to GTB Hospital and was got medically examined by doctor. After her medical examination lady doctor handed over two glass slides and two sealed undergarments with the sample seal to her and she handed over the same to the IO/SI Ajay Kumar, seizure memo of the exhibits were prepared in her presence which bears her signatures at point A.

(ix) PW8 is again formal witness. He deposed that he took one Mahender to GTB hospital and got him medically examined. After his medical examination undergarments and one glass tube of blood sample were taken and given to him and he handed over the same to the IO and the seizure memo of the aforesaid documents is Ex.PW 8/A which bears his signatures at point A.

(x) PW9 deposed that on 30/8/07 investigation of this case was assigned to him on 20/9/07. He collected the age proof of Pooja d/o Atul from MCD Primary Girl school and prepared the seizure memo which is Ex.PW 4/B which bears his signatures at point A. Birth certificate is Ex.PW 4/C also taken from the school. He further deposed that on 28/2/07 all the exhibits were sent to FSL Rohini and after completion of investigation he prepared the challan, filed the same in the court of Ld. MM. During his cross-examination he reiterated his testimony as submitted by him during his examination in chief.

(xi) PW10 is investigating officer of this case and deposed that on the night intervening of 30- 31/7/07 he was on emergency duty from 8a.m to 8 p.m at P.S Bhajan Pura. At about 10 P.M complainant Pooja reached there and lodged a complaint against Mahender and Raju and on her version he recorded her statement Ex.PW 1/A. He made endorsement on the same Ex.Pw 10/A and handed over the same to the Duty Officer for registration of the case. After registration of the FIR he got the copy of the same and rukka from duty officer. Lady Const. Reena was left with the prosecutrix and he along with Const. Lalit and H.C Mool Chand proceeded for Narela. Prosecutrix told that accused Mahender was residing at Narela. He further deposed that at about 2 a.m they reached Narela, local police was taken and reached at B-526 where mother and brother of the accused Mahender were found present there and brother of accused Mahender took them to Gali No.9 Saboli road, Narela from where accused Mahender was arrested. His arrest memo and personal search memo Ex.PW 7/B and Ex.PW 7/C were prepared. His disclosure statement Ex.PW. 7/A was recorded. He further deposed that accused Mahender took the police party to the place Aggarwal sweet Khajuri chowk from where he had kidnapped Kumari Pooja. Pointing out memo Ex.PW 7/D was prepared. Thereafter accused was taken to police station. SI Lal Chand was assigned with the duty for getting medical examination of accused Mahender and accordingly he was got medically examined through Const. Raj Pal and IO identified the accused Mahender in the court. He further deposed that on the same day i.e on 31/7/07 at about 12 noon he along with const. Raj Pal left for village Bhakhata for search of accused Raju and with the help of local police accused Raju was also arrested and his disclosure statement Ex.PW 7/E was recorded. His personal search memo and arrest memo were prepared which are Ex.PW 7/F and Ex.PW 7/G. Thereafter he was taken to police station Bhajan Pura and was got medically examined through Const. Lalit Kumar. He further deposed that lady const. Reena handed over the MLC of Pooja along with one sealed blood sample of accused Raju, sealed sample seal of GTB hospital, sealed parcel containing undergarments, salwar of prosecutrix along with sample seal, and were also given to him which were seized vide memo Ex.PW 10/C. He further deposed that Const. Raj also handed over another sealed parcel, blood sample of accused sealed with the seal of GTB hospital and MLC, same were seized vide memo Ex.PW 8/A. He also recorded the statement of witnesses and thereafter investigation of this case was transferred to other IO. During the course of investigation he reiterated his testimony as submitted by him during his examination in chief.

(xii) PW.11 deposed that on 31/7/07 he joined the investigation of this cae along with IO/SI Ajay and H.C Mool Chand and went to village Bhakhata in search of accused Raju. Accused was arrested with the help of local police. He was brought to the police station and was taken to GTB hospital for his medical examination after collecting the MLC he handed over the same to the IO. During his cross-examination he reiterated his testimony as submitted by him during his examination in chief.

8. After the examination of aforesaid witnesses the prosecution evidence was closed and the case was fixed for statement of the accused. During the course of examination u/sec.313 Cr.P.C accused Raju, he controverted all the allegations as alleged against him. He submitted that he is innocent and falsely implicated in this case. It is further submitted that during the continuance of his marriage with Pooja ( prosecutrix herein), her brother and her maternal uncle used to visit his village Bakheta and also stayed there as relative on few occasions and they never raised any objection with regard to performance of his marriage with Pooja and they also invited them to visit their residence at Delhi. He also took the prosecutrix two/three times at her parent’s home and her parents has not raised any objection nor made any complaint against him. He was implicated in this case with the sole aim to grab his immovable property. He wanted to lead defence evidence in his defence.

9. Accused Mahender also controverted the allegations as alleged against him and submitted that he is innocent and falsely implicated in this case.

He further submitted that he was in good relations with the family members of Pooja. His brother used to beat her therefore, the mother of the prosecutrix always used to request him to got marry Pooja with some suitable match and due to her repeated request he chose a suitable match for her marriage with Raju who is one of the co-accused in this case . Pooja was got married with Raju as per Hindu Rites in the presence of her family members and family members of accused Raju. He also present there from the side of Pooja being her uncle.

10. No DW appear on behalf of accused Raju and therefore, ld. Counsel for accused Raju request for closing of the defence evidence. DE was closed.

Final arguments heard.

11.Ld. Counsel for accused persons submitted that before convicting the accused under any penal law it is the duty of the prosecution to prove its case beyond reasonable doubt and in the present case star witnesses of the prosecution have not supported the prosecution version and submitted that prosecution failed to prove its case against the accused beyond reasonable doubt and requests for acquittal of the case.

12. Ld. Counsel for accused Raju specifically stated that it is admitted case of the prosecution that prosecutrix Pooja joined the company of Raju only after solemnization of her marriage with accused Raju. During examination she stated that she remained in the village Bakheta i.e native village of accused Raju with Raju as husband and wife. She also admitted her marriage was solemnized in temple in the presence of family members and relatives of co-accused Raju. She also failed to explain as to how she left the village while sitting on the truck being driven by unknown person. She also admitted that her brother and maternal uncle used to visit at village Bakheta where she was living with her husband/accused Raju and no objection was raised by them on account of their marriage. It is also placed on record that co-accused Mahender also visited the parental house of Kumari Pooja. Photographs were shown in the court showing that the consent of Pooja in solemnization of marriage with accused Raju in a temple. All these facts have been duly admitted by PW 1 even in examination in chief as well as in cross-examination. The age of the prosecutrix Pooja is not disputed however, admittedly she has attained the age of majority and in the absence of any pressure, threat or unwillingness of the prosecutrix, it cannot be said that accused Raju committed rape upon Pooja and requested for acquittal of the accused Raju for the offence as alleged against him.

13.Ld. counsel for Mahender also submitted that on perusal of the testimony of PW 1 prosecutrix it is no where mentioned that accused Mahender committed rape on prosecutrix without her consent however it is admitted case of the prosecution that accused Mahender called Kumari Pooja at Aggarwal Sweet by telephonic call for some talk and she of her own reached there and had talked with him. It is further admitted that she was kept by the accused Mahender 5/6 months at flat No. 520 Narela and she had many occasions to disclose all these incident to her parents in case no consent was offered by her to live with him at Narela. During her cross-examination by Ld. Counsel for accused, she no where stated as to how, when and where she was taken by the accused at Rajasthan. She also failed to place on record that any forceful act was ever committed by accused Mahender while keeping her with him at his house at Narela. Her age is not disputed. Admittedly she has attained the age of marriage. It is also brought on record that family members of Pooja were well aware of the fact that she was residing with accused Mahender. It is also admitted case that accused Mahender chose a suitable match and got her married with Raju in temple in such circumstances it cannot be said that it was not the case of unwillingness to join the company of Mahender by prosecutrix.

In such circumstances it is clear that prosecution has failed to prove the ingredients to convict the accused for offence of U/Sec. 376 IPC.

14.It is further submitted that no ingredients to convict the accused for the offence u/sec. 328 IPC are placed on record as on the date of incident neither she was medically examined nor any complaint was filed by her.

15.In view of the testimonies of all the witnesses discussed above and on perusal of the ingredients which are required to convict the accused persons u/sec. 376/328/34 IPC are not placed on record and requested for acquittal of the accused Mahender.

16.After hearing the arguments on behalf of the ld. Counsels for both the accused persons as well as on behalf of Ld. Addl. PP for the state and on careful perusal of the testimonies of all the witnesses, discussed above, I am of the considered view that prosecution could not succeed in proving its case against the accused for the offence as alleged against them.

17.Accordingly accused Raju is acquitted for the offence u/sec. 376 IPC and accused Mahender is hereby acquitted for the offence u/sec. 328/366/376 IPC.

18.The bail bond furnished by the accused Raju stand cancelled. His Surety be discharged. As accused Mahender is in judicial custody in this case, he be released from the jail forthwith, if not wanted in any other case. File be consigned to the Record Room.

(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court Delhi Dt. 23rd Sept 2009

23/9/09 PRESENT : None for the state.

Accused Raju present on bail.

Accused Mahender produced from J/C.

Vide separate judgment announced today in the open court the accused Mahender is acquitted for the offence as alleged against them u/sec.

328/363/376 IPC and accused Raju is acquitted for the offence u/sec. 376 IPC.

As the accused Mahender is in Judicial custody, he be released forthwith from the jail if not wanted in any other case. The bail bonds furnished by accused Raju stands cancelled. His Surety discharged. File be consigned to Record Room.

(B.S. CHUMBAK)
ASJ-3/North East District KKD/Delhi /23/9/09

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