Delhi High Court
Umesh Kumar @ Tinkoo vs The State Of N.C.T. Of Delhi on 18 February, 2016
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 18th FEBRUARY, 2016
+ CRL.A. 340/2004
UMESH KUMAR @ TINKOO ..... Appellant
Through : Ms.Astha, Advocate.
versus
THE STATE OF N.C.T. OF DELHI ..... Respondent
Through : Mr.Vinod Diwakar, APP.
SI Ramesh Chand.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Aggrieved by a judgment dated 02.08.2003 of learned
Additional Sessions Judge in Sessions Case No.92/2001 arising out of FIR
No.236/2001 registered at Police Station Kamla Market by which the
appellant - Umesh Kumar @ Tinkoo was convicted under Section 366
IPC, he has preferred the present appeal. Vide order dated 14.08.2003, he
was awarded RI for five years with fine `5,000/-.
2. Briefly stated, the prosecution case as reflected in the charge-
sheet was that the appellant along with his associate - Deep Karan
abducted/seduced the prosecutrix 'X' (assumed name) and 'Z' (assumed
name) before 21.06.2001 with an intention to compel or force them to
have illicit intercourse. They thereafter, took them to different jhuggies at
Madipur and established physical relations with them. Subsequently, 'X'
was sold by Deep Karan to Zarina @ Razia. She along with her associates
- Haseena and Bhagti Ram Pandey pushed her into prostitution at Kotha
No.56, G.B.Road, Delhi, where they used to run a brothel. The prosecutrix
'X' was recovered from the said Kotha on 21.06.2001 at around 8.50 p.m.
3. On receipt of a secret information, raid was conducted by the
police at Kotha No.56, G.B.Road and two girls 'X'and 'Y'(assumed
name) were recovered from there. The Investigating Officer lodged First
Information Report after recording statement of the victim 'X' (Ex.PW-
1/A). 'X' and 'Y' were medically examined; they recorded 164 Cr.P.C.
statements. Statements of the witnesses conversant with the facts were
recorded. In the complaint, the victim (X) disclosed as to how initially
rape was committed upon her and her friend 'Z'(assumed name) by Deep
Karan @ Sonu and the appellant - Umesh Kumar @ Tinkoo in different
jhuggies at Madipur after abducting them on their way to the park.
Thereafter, 'X' was sent along with Zarina @ Razia at 56, G.B.Road for
the purpose of prostitution by Deep Karan. Subsequently both Deep
Karan and the appellant - Umesh Kumar @ Tinkoo were also arrested.
Upon completion of investigation, a charge-sheet was filed against all of
them for commission of various offences. The prosecution examined
twenty witnesses to establish its case. In 313 statement, the accused
persons denied their involvement in the crime and pleaded false
implication. The trial resulted in their conviction. Being aggrieved and
dissatisfied, the convicts have filed various appeals; the present appeal
pertains to the appellant - Umesh Kumar @ Tinkoo. State did not file any
appeal to challenge appellant's acquittal under Section 376 IPC.
4. I have heard the learned counsel for the parties and have
examined the file. The prosecutrix 'Z', who was allegedly kidnapped and
raped by the appellant did not appear for examination before the Court.
Adverse inference is to be drawn against the prosecution for withholding
the crucial witness. In the MLC, no visible injuries were found on the
victim's body including private parts. As per ossification test, 'Z' was
opined to be more than 16 years but less than 17 years. Exact date of birth
of the victim has not surfaced on record. It is unclear if she was below 16
years of age on the day of incident and her consent for physical relation (if
any) had no relevance.
5. 'X' and 'Z' lived along with Deep Karan and the appellant -
Umesh Kumar @ Tinkoo for around a month in different jhuggies at
Madipur. 'X' admitted in her Court statement that the physical relations
took place between her and Deep Karan. At no stage, 'X' and 'Z' raised
hue and cry to complain their forcibly abduction or rape. No implicit
reliance can be placed on the testimony of 'X' as on her way to the jhuggi,
she did not raise any protest and accompanied Zarina @ Razia on her own
without demur. In the cross-examination, 'X' admitted that there were
number of other jhuggies around the jhuggi where they were confined for
about a month. On the advice of ladies in the said jhuggies, she had agreed
to stay there. Admittedly, 'X' and 'Z' were not under restraint and were
free to move anywhere. During this period, they did not contact their
parents and never informed them about the incident. Their parents also did
not lodge any missing person report to find them for so long. None from
the neighbouring jhuggi was examined as a witness. It is unclear as to
where 'Z' went after 'X' allegedly was sold for prostitution to Zarina @
Razia. No incriminating article was recovered from the said jhuggi.
6. Appellant's conviction is primarily based upon the testimony
of PW-1 which was found deficient to base conviction qua other convicts
- Zarina @ Razia, Haseena and Bhagti Ram Pandey.
7. Possibility of 'Z' to be a consenting party to have physical
relations with the appellant can't be ruled out.
8. As per ossification test, 'X' was aged more than 15 years but
less than 17 years; 'Z' was opined to be more than 16 years but less than
17 years. Exact dates of birth of the victims have not surfaced on record.
It is unclear if both of them were below 16 years of age on the day of
incident and their consent for physical relations (if any) had no relevance.
9. In the light of the above discussion, I am of the view that the
prosecution has failed to prove its case beyond reasonable doubt. The
appellant deserves benefit of doubt; the appeal is allowed. The conviction
and sentence are accordingly set aside.
10. Bail bonds and surety bonds stand discharged. Trial Court
record (if any) be sent back forthwith along with the copy of the order.
Intimation be also sent to the Superintendent Jail.
(S.P.GARG)
JUDGE
FEBRUARY 18, 2016 / tr
