Arti v. N.C.T. of Delhi

1. The appellant was tried by the court of Additional Sessions Judge (in Sessions Case No.22/2000) along with one Shivraj Gupta alias Gappu on the charge for offences punishable under Section 120B of Indian Penal Code, 1860 (IPC), Section 328 read with Section 120 B IPC and Section 363 read with 120 B IPC on the gravamen that she had entered into a criminal conspiracy with the said other person (i.e. Shivraj) and in furtherance of criminal conspiracy administered sweets with intoxicating substance to the prosecutrix, a girl aged about 14 years at that point of time, to facilitate the commission of offence of she being kidnapped; the said girl having been kidnapped by Shivraj from the lawful guardianship of her father (PW-2), on or about 30.03.1999, from the hutments (jhuggi cluster) in the locality known as Indira Market, Naraina, New Delhi. The other said person Shivraj was put on trial on the additional charge for offence under Section 376 2019:DHC:1519 IPC, on the allegations that after having kidnapped the said girl, he had subjected her to forcible sexual intercourse during the period 30.03.1999 to 10.04.1999 at Delhi and other places, the prosecutrix, as per the evidence presented, having been recovered from his house on 10.04.1999 in Shahjahanpur in Uttar Pradesh.

2. By judgment dated 31.10.2001, the appellant herein was held guilty and convicted on the charge for offence under Section 363 read with Section 34 IPC and Section 328 read with Section 34 IPC; Shivraj Gupta having been held guilty and convicted separately on charges for offences under Sections 363, 328, 376 and 34 IPC. By order on sentence dated 01.11.2001, the trial judge awarded imprisonment for a period of two years with fine of Rs.1,000/-, and imprisonment for a period of three years with fine of Rs.3,000/- for offences under Section 363 read with Section 34 IPC and Section 328 read with Section 34 IPC respectively.

3. The above mentioned judgment of conviction and order on sentence were challenged by the appellant through the present appeal. The sentence having earlier been suspended by order dated 22.02.2002, the appeal was not prosecuted, she having failed to appear on it being called out. She has since resurfaced and was taken into custody, she having forfeited the order of suspension of sentence on account of the earlier default.

4. Arguments have been heard, and with the assistance of the learned counsel for the appellant, the record has been perused. In the opinion of this court, the prosecution has failed to bring home the charge against the appellant beyond reasonable doubts. The appeal deserves to be allowed and the judgment of conviction against the appellant along with the order on sentence require to be set aside and vacated. The reasons may be set out hereinafter.

5. The prosecutrix, as said before, was a girl aged about 14 years during the relevant period. She hailed from a very humble background, her father and the family living in a hutment. The appellant herein concededly was their neighbour. PW-2 (father of prosecutrix) is on record to say that the appellant was a quarrelsome lady, and that after the prosecutrix had gone out of his lawful custody, the appellant had attempted to defame the family in the society.

6. The first information report (FIR) (Ex.PW1/A) was got registered by PW-2 on 01.4.1999 informing that his daughter had left home to attend call of nature having gone to a public toilet around

10.00 pm, whereafter she had failed to return home. In the FIR, he expressed suspicion about the involvement of the co-convict Shivraj. However, no reference was made to any possible role of the appellant. Initial efforts to trace the girl in Delhi did not bear fruit. Eventually, PW-2 accompanied the Investigating Officer ASI Hukum Singh (PW-

10) to the native village of the co-convict Shivraj in district Shahjahanpur (U.P.) on 1.04.1999. On reaching the village, it was intimated to them that the father of Shivraj had passed away. In the presence of PW-2, Shivraj brought home the dead body of his father. He was interrogated at that point of time and this led to the recovery of the prosecutrix from his house.

7. The prosecutrix and Shivraj were produced before the local Magistrate. Since Shivraj had been arrested around the time of recovery of the prosecutrix, a remand request was made by PW-10 before the local Magistrate. This was granted as per order Ex.PW 10/A. The prosecutrix and co-convict Shivraj were brought to Delhi on 11.04.1999, whereafter they were both produced before the concerned Magistrate. While the co-convict Shivraj was sent to judicial custody, the prosecutrix was sent for medical examination to Safdarjung Hospital, the MLC (Ex.PW6/A) in her respect having been proved at the trial.

8. It is pertinent to note here that in the MLC, the examining Medical Officer had also taken care to record that the prosecutrix at the time of her medical examination had given the medical history of abduction and rape by the said co-convict Shivraj. The prosecutrix also added that she had been administered something to eat whereafter she had fallen unconscious and taken to the village on 30.03.1999. Crucially, the entire role was attributed to co-convict Shivraj, there being no reference whatsoever to the appellant herein.

9. The prosecutrix was examined by the Investigating Officer, and her statement under Section 161 of the Code of Criminal Procedure, 1973 (Cr.P.C.) was recorded on 10.04.1999 itself. The said statement under Section 161 Cr.P.C.(marked 5/DX) only reveals that the coconvict Shivraj had taken advantage of her on some earlier occasion and had subjected her to rape in his house and thereafter had enticed her away to her native village on 30.03.1999, the girl making it clear that she had eloped with the co-convict Shivraj on account of she being allured into doing so. Again, there is no indication of any role attributed directly or indirectly to the appellant.

10. During investigation, the prosecutrix was also examined under Section 164 Cr.P.C. before the Metropolitan Magistrate on 13.04.1999. The record of the said proceedings (Ex.PW7/B) was also proved at the trial. It is in the said statement that the name of the appellant came in for the first time. The prosecutrix had told the Magistrate that on 30.03.1999 she had gone to the house of the appellant (her neighbour) “for taking water”, at which stage, the appellant had offered to her some sweets and on consuming the same she had started to felt giddy and thereafter she was advised by the appellant to go with the co-convict Shivraj who had also come there and taken her away, she at that stage being under the influence of an intoxicant.

11. At the trial, the prosecutrix gave another twist to the story. She deposed that after she had attended the call of nature in the public toilet, she was called by the appellant and helped in washing her hands and thereafter offered sweets (burfi). She stated that after consuming the sweets, she had felt giddiness and then the appellant had taken her to a bus on ring road (red light) and made her board the same with the co-convict Shivraj.

12. There is no evidence gathered to confirm as to whether the sweets which were offered to, and consumed by, the prosecutrix contained any intoxicant. Going by the statement under Section 161 Cr.P.C. of the prosecutrix recorded immediately after her recovery on 10.04.1999, she had been involved in an affair with the co-convict Shivraj for quite some time. Given this background, the possibility that the name of the appellant had been brought in at the instance of PW-2, because of her quarrelsome nature and because she was perceived to be responsible for the defamatory insinuations that were being spread cannot be lightly brushed aside. The court deposition of the prosecutrix against the appellant several days after she had been recovered cannot be believed on its face value.

13. The prosecutrix had changed her stand from one version to the other, the narration of sequence of evidence in the first statement under Section 161 Cr.P.C. being materially distinct from what was deposed by her before the Magistrate at the time of her statement under Section 164 Cr.P.C., the court deposition being even further at variance from the previous two.