Delhi District Court
State vs Gulshan S/O Charan Singh, on 28 May, 2012
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 0I : North East / KARKARDOOMA
COURTS: DELHI.
FIR No. 444/2010
State Vs Gulshan s/o Charan Singh,
1. r/o B306, Gali No.13, Bhajanpura, Delhi.
Police Station Bhajanpura
Convicted under section 363 IPC
ORDER ON SENTENCE:
28.05.2012
Pre: Ld. APP for the state.
Convict on bail.
Sh. R.R. Jha, ld. counsel for convict.
Ld. counsel for convict has prayed that convict Gulshan is on bail and facing
trial regularly. Ld. counsel for convict further submits that he has been remained in JC
for 14 days. Ld. counsel for convict further stated that convict belongs to a poor
family and he is having responsibility of his family. Ld. counsel for convict further
submits that accused is facing trial since 2010 and convict might have learnt a lesson
that how to live in a civilized society. On these grounds ld. counsel for convict
requests for releasing the convict on probation of good conduct.
Contrary to the submissions of ld. counsel for the convict, Ld. APP for the
State submits that since the offence u/s 363 IPC has been proved. Hence, he be
convicted for maximum sentence as per law.
SC No.27/2012
State Vs. Gulshan 1
Arguments heard. Record perused. From the perusal of record it has been
established that accused has been held guilty for kidnapping of victim from lawful
guardianship of her parents, it is also come on record after taking the custody of victim
she had left the house of her parents and during these days victim is residing at the
house of convict and her parents has no relations with victim.It is also come on record
that convict has been remained in J.C. For the period about six months and twenty five
days. Although is correct that convict was the offender but is also correct that victim is
residing at the house of convict hence sending the convict will not be a solution. Hence
it would justifiable to release the convict on probation.
Keeping in view the facts and circumstances of present case and considering the
custody period and his clean antecedents this court comes to the conclusion that the
ends of justice will meet if convict is released on probation of good conduct since he is
first offender. the convict be released on probation of good conduct for the period of 2
years on furnishing personal bond in the sum of Rs.10,000/ with one surety in the like
amount. Orders accordingly.
File be consigned to record room.
PRONOUNCED IN THE OPEN
COURT ON THIS 28.05.2012 (RAMESH KUMARII)
ADDL. SESSIONS JUDGE01/NORTH EAST
KARKARDOOMA COURTS: DELHI
SC No.27/2012
State Vs. Gulshan 2
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : NORTH EAST /
KARKARDOOMA COURTS: DELHI.
Case ID Number. 02402R0022342011
Sessions Case No. 27/2012
Assigned to Sessions. 31.03.2012
Arguments heard on 29.05.2012
Date of Judgment 29.05.2012
FIR No. 444/2010
State Vs Gulshan s/o Charan Singh,
2. r/o B306, Gali No.13, Bhajanpura,
Delhi.
Police Station Bhajanpura
Under Section 363/366 IPC
JUDGEMENT
1. Vide this judgment I shall dispose off this case in which Station House Officer of Police Station Bhajanpura had filed a challan vide FIR No.444/2010 dated 30.08.2010 u/s 363 IPC for the prosecution of accused Gulshan in the court of ld. Metropolitan Magistrate and section 207 Cr. P.C. had already been complied with by Ld. M.M. Since, this court is designated court for trial of the cases pertaining to child victims, hence this case was sent by Ld. District Judge/Incharge, North East District, Karkardooma Courts to this court for trial. SC No.27/2012 State Vs. Gulshan 3
2. In brief, the facts of the case are that on 30.08.2010 at about 7:00/8:00 p.m. Sh. Anil Kumar Patel, father of victim had reached at police station Bhajanpura and got recorded his statement Ex.PW3/ to the police suspecting accused Gulshan in taking away his daughter - Km. Sapna, upon which FIR No.444/2010 u/s 363 IPC Ex.PW4/B was registered accused Gulshan. During the course of investigation police had arrested accused Gulshan.
CHARGE:
3. On the basis of material available on record this court vide order dated 25.04.2012 framed a charge against accused Gulshan for the offence punishable u/s 363/366 IPC to which accused did not plead guilty and claimed trial. PROSECUTION WITNESSES:
4. In order to prove its case prosecution has examined 07 witnesses namely PW1 Km. Sapna- victim/hostile witness, PW2 Smt. Manju - mother of victim, PW3 Sh. Anil Kumar Patel father of victim, PW4 ASI Raghuraj Singh, PW5 ASI Dhanattar Singh, PW6 Sh. Shiv Kumar, TGT Science and PW7 Ct. Billu Yadav.
5. PW1 Km. Sapna Patel is a material witness being victim but this witness has been declared hostile by ld. APP for the State as she did not support the case of prosecution on any count. She has deposed that in the year 2010 she was residing along with her parents at H. No.B118/1, Gali No.09, Bhajanpura, Delhi and was studying in 12th standard and as per the school record her date of birth is 08.09.1994. SC No.27/2012 State Vs. Gulshan 4 This witness has further deposed that accused Gulshan present in court is known to her since 2009 being her neighbour in front of her house. This witness has deposed that on 26.08.2010 at about 1:00 p.m. she had gone to main market at Bhajanpura from her house where accused met her and he took her to Vaishno Devi and they stayed there for 45 days in one Dharamshala, accused had not done any wrong act there with her. Thereafter, they returned to Delhi and accused brought her at the house of his sister, there they stayed for 45 days but no wrong act was done with her by accused.
6. This witness has further deposed that on 08.09.2010 they had left the house of sister of accused and started to live in a tenanted room of house of one Lalit Mishra at Dayalpur, Delhi and there they had stayed upto 19.10.2010 and on 20.10.2010 police officials along with her father reached in her tenanted room and police took her and accused to police station.
7. This witness has proved his MLC vide Ex.PW1/A and her statement u/s 164 Cr.P.C. vide Ex.PW1/B.
8. This witness has further deposed that she had come before the court along with accused and she is residing with him till now and they had performed marriage due to objection of their parents.
9. This witness has been cross examined by the Ld. APP for the State wherein she had SC No.27/2012 State Vs. Gulshan 5 confronted her MLC Ex.PW1/A, her statement PW1/B and PW1/C. This witness had denied all the suggestions which were put to her by Ld. APP for the State.
10.In her cross examination by ld. defence counsel, this witness admits that she and accused are in livein relations.
11.PW2 Smt. Manju, mother of victim is a material witness. This witness has deposed that in the year 2010 her daughter Km. Sapna Patel was studying in 12th standard and at that time she was sixteen years old and her date of birth is 08.09.1994.
12.This witness has further deposed that on 27.08.2010 at about 7:00 a.m. victim had gone to school at BBlock, Yamuna Vihar but she did not come back, they searched her here and there but no clue came forward and after about two days, her husband went to police station and lodged the missing report against suspect Gulshan.
13.This witness has further deposed that on 20.10.2010 it came into her notice that victim had been traced by the police and she along with her husband reached at police station where victim and accused Gulshan were in the custody of police in police station Bhajanpura. This witness had accompanied victim to GTB Hospital for her medical examination and put her thumb impression at point B on MLC of victim Ex.PW1/A. Thereafter, police had taken victim to Nari Niketan and after 2 3 days they had taken custody of victim and she was brought back at their house. This witness has further deposed that after about one week victim again left their SC No.27/2012 State Vs. Gulshan 6 house and since she is residing along with accused at his house.
14.PW3 Sh. Anil Kumar Patel, father of victim is a material witness and on whose statement present case was registered. This witness has deposed that on 27.08.2010 at about 07:00 p.m. he reached at his house and his wife told him that his daughter Km. Sapna Patel had gone to school at about 7:00 a.m. and she did not return. He and his family members made search of victim here and there but no clue came forward and on the same day, he had moved a written complaint at police station Bhajanpura regarding missing of victim but no action was taken.
15.This witness has further deposed that on 30.08.2010 at about 7:00 - 8:00 p.m. he again reached at police station and got his statement vide Ex.PW3/A recorded to police suspecting Gulshan for taking the victim.
16.On 20.10.2010 at about 5:00 a.m. on his pointing out ASI Raghuraj along with 23 police officials had conducted raid at the tenanted room of accused Gulshan where he was residing along with 16 years old victim. This witness has proved seizure memo Ex.PW3/B of recovery of victim from the custody of accused.
17.This witness has further deposed that the date of birth his daughter/victim is 08.09.1994 and accused was arrested in his presence.
18.This witness has further deposed that statement of victim was recorded before ld. SC No.27/2012 State Vs. Gulshan 7 MM and thereafter, she was sent to Nari Niketan and after about 23 days, victim was released in his favour and he had taken custody of victim.
19.This witness has further deposed that after about 8 days accused Gulshan came in front of his house, abused him and threatened him. This witness had moved written complaint to police against accused to this effect and on following morning he found victim missing from his house and during her search, it came into his notice that she was residing with accused at his house.
20.PW4 ASI Raghuraj Singh is a material witness being I.O. This witness has deposed that on 30.08.2010 at 9:00 p.m., rukka Ex.PW4/A recorded by ASI Rameshwar along with copy of FIR Ex.PW4/B was delivered to him by D.O. for investigation. This witness had identified writing and signature of ASI Rameshwar in official capacity. This witness had made search for missing victim who was 16 years old and suspect Gulshan here and there. This witness had taken some steps regarding missing person by filling up missing person form Ex.PW4/C and message form Ex.PW4/D and information was also passed on to senior police officials of the country.
21.During the course of investigation, this witness had seized the photocopy of secondary school examination of victim mark X which discloses her date of birth as 08.09.1994.
SC No.27/2012 State Vs. Gulshan 8
22.During the course of investigation, on 20.10.2010 at about 5:00 a.m., this witness had conducted raid on the pointing out of complainant at a tenanted room of accused Gulshan in Dayalpur, Khajuri, Delhi from there victim was recovered from the possession of accused. This witness had handed over the custody of victim to lady Ct. Hemlata and prepared seizure memo regarding recovery of victim vide Ex.PW3/B. This witness had interrogated victim and she disclosed her age as 16 years and she also told that she had been taken by accused to Vaishno Devi and from there she returned to Delhi along with accused and he kept her in Dayal Pur. This witness had got her medically examined from GTB Hospital vide MLC Ex.PW1/A.
23.During the course of investigation, this witness had got her statement recorded u/s 164 Cr.P.C. vide Ex.PW4/F from Ld. MM. This witness has proved arrest memo Ex.PW4/I and personal search memo Ex.PW4/J of accused Gulshan.
24.In his cross examination by ld. defence counsel, this witness has deposed that father of victim had disclosed about the presence of victim and accused and they had conducted raid at about 5:00 a.m. at the instance of father of victim. This witness admits that area of Dayalpur is densely populated and no public persons had come there as it was early morning hours.
25.PW5 ASI Dhanattar Singh is a formal witness being Duty Officer. This witness had recorded FIR Ex.PW4/B on the basis of rukka Ex.PW4/A and same was assigned to SC No.27/2012 State Vs. Gulshan 9 ASI Raghuraj for investigation.
26.PW6 Sh. Shiv Kumar, TGT Science, Govt. Girls Sr. Sec. School, No.2, Bblock, Yamuna Vihar, Bhajanpura, Delhi. This witness has proved photocopy of admission register having entry regarding student Km. Sapna Patel vide Ex.PW6/A which had been attested by Ms. Kanchan Jain, Principal of aforesaid school. This witness has also proved photocopy of certificate of secondary school examination of Km. Sapna Patel Mark X which discloses her date of birth as 08.09.1994.
27.PW7 Ct. Billu Yadav. This is the witness of arrest of accused Gulshan. In his presence I.O. ASI Raghuraj Singh had arrested him vide arrest memo Ex.PW4/I and personal search memo Ex.PW4/J. STATEMENT OF ACCUSED U/S 313 CR.P.C.:
28.After prosecution witnesses, statement of accused u/s 313 Cr.P.C. was recorded wherein accused had denied all circumstances and evidence put to him and claimed to be innocent and have been implicated falsely. Accused has deposed that parents of victim had agreed for her marriage with him but he belongs to other caste, hence due to this reason her parents became annoyed and got registered present false case against him and parents of victim had not taken custody and victim had left her parental house her own and presently she is residing with him at his home and she is not willing to join her parents. Accused has not preferred to lead any D.E. SC No.27/2012 State Vs. Gulshan 10
29.Thereafter, case was fixed for arguments.
ARGUMENTS:
30.Ld. APP for State argued that present accused has been prosecuted under section 363/366 IPC.
31.Ld. APP for the State further argued that statement of PW2 and PW3 are sufficient to convict the accused. PW4 ASI Raghuraj Singh is I.O. PW6 Sh. Shiv Kumar, TGT Science, in his testimony has submitted that as per photocopy of certificate of secondary school examination of victim, date of birth of victim is 08.09.1994. this fact has been supported by the victim and her parents.
32.Ld. APP for State further argued that official witness has supported the case of prosecution. Hence, he has prayed to convict the accused under the section for which he has been charged.
33.On other hand Ld. defence counsel for accused argued that since victim is living with accused and victim has not supported the case of prosecution on any point of time being material witness. Hence, ld. counsel for accused has prayed for acquittal of accused Gulshan.
PERUSAL OF RECORD:
SC No.27/2012 State Vs. Gulshan 11
34.Argument heard. Record perused. On perusal of record it is revealed that on the statement of complainant PW3 Sh. Anil Kumar Patel present case was registered.
35.On perusal of record, it is further revealed that victim in her statement u/s 164 Cr. P.C. had not leveled any allegations of either nature against accused Gulshan and claimed that she had left her house with accused for Vaishno Devi her own. In her statement u/s 164 Cr.P.C. she has deposed that accused Gulshan had not made physical relation with her.
36.On perusal of record, it is further revealed that MLC Ex.PW1/A disclose that victim and her family members had refused for medical examination of victim and they had not put any allegation against accused.
37.It is further revealed that as per Secondary School Examination certificate mark - X, date of birth of victim is 08.09.1994.
38.On perusal of record, it is further revealed that accused Gulshan was arrested vide arrest memo Ex.PW4/I and personal search memo Ex.PW4/J by the I.O. and recovery memo of victim was prepared by I.O. vide memo Ex.PW3/B.
39.Before reaching at any conclusion let the relevant sections i.e. 363 and 366 IPC be reproduced, which are as under : Section 363 IPC: "Whoever kidnaps any person from India or from lawful SC No.27/2012 State Vs. Gulshan 12 guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Section 366 IPC "Kidnapping, abducting or inducing woman to compel her marriage, etc - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to find, and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."
40.Since present case was registered on the statement of PW Sh. Anil Kumar Patel who is the father of victim and as per his statement she was below 16 years on the day of incident but no documentary proof of date of birth he could placed on record. He has stated date of birth of victim as per School Leaving Certificate of victim whereas in her statement victim had stated to the ld. MM that on the day of incident she was studying in 12th standard.
41.Since, complainant could not produce any relevant document pertaining to the date of birth of victim upon which her exact date of birth can be assessed. Merely saying that victim was below 16 years is not sufficient unless same is corroborated by any documentary evidence. Further, perusal of MLC of victim her age appears to be 16 years and no fact of physical relation has been disclosed by the victim to the doctor SC No.27/2012 State Vs. Gulshan 13 and she had refused for her medical examination.
42.Hon'ble Gauhati High Court in case "Mihir Das Vs. State of Tripura, 2006 Cri.L.J. 1500", has held that :
"Indian Penal Code, 1860, Section 366 - Kidnapping - Kidnapping - Proof - Evidence on record showing that victim aged 16 years on her own consent travelling with appellant, her boy friend and cannot be said that it amounts to taking her out keeping of her lawful guardian - Kidnapping can be said to have taken place only when she was detained against her will for purpose of pressurising her to agree to his proposal of marriage - Victim, nowhere in her statement disclosed that appellant put pressure on her to marry her boy friend - Held, that the appellant cannot be said to be guilty of kidnapping victim and consequently this appeal merits for acceptance - Appeal allowed."
43. The Apex Court in "Ravinder Singh Gorkhi v. State of U.P., 2006 CriLJ2791", held that when the register maintained by school does not show the basis for the entry regarding birth date, then the school leaving certificate cannot be relied upon. The relevant observations are to be found in para No.37 and may be usefully quoted as below :
"37... a court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of the Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."SC No.27/2012 State Vs. Gulshan 14
44.Hon'ble High Court of Rajasthan in case "Sukhwant Singh Vs. State of Rajasthan, 2006 (2) Crimes 265," has held that :
"Criminal - Acquittal - Benefit of Doubt - Sections 366 and 376 of Indian Penal Code, 1860 (IPC) - Present appeal filed against order of conviction under Sections 366 and 376 of IPC - Held, testimony of prosecutrix cannot at all be said to be reliable, trust worthy or worthy of credence so as to place reliance - Her testimony did not inspire any confidence - Therefore, it was too difficult to accept truthfulness of version of prosecutrix that any sexual assault as alleged was committed on her - Therefore it must be concluded that prosecutrix in case was one on whose testimony no reliance can be placed There was no evidence either direct or circumstantial which could lend assurance to her testimony - Conduct of prosecutrix reveals that she had gone voluntarily with Appellant - There were no signs of recent inter course, it must be hold that culpability of Appellant did not established - Prosecution was obliged to prove on basis of evidence that there was some such undue force on prosecutrix either to marry Appellant or to have intercourse with him - Prosecution has failed to prove beyond doubt that there was undue force on prosecutrix either to marry Appellant or to have intercourse with him - Conduct of prosecutrix reveals that she voluntarily boarded in truck at her own accord of which Appellant was driver and had also paid amount as against fare - Evidently she planned her departure and had willingly gone away with Appellant in is truck - It further indicates that there was no threat or inducement either in regard to her leaving place or in regarding to accompanying Appellant - Conviction of Appellant under Section 366 IPC also cannot be sustained Appeal allowed and conviction set aside and Appellant acquitted."
45.Having given careful consideration to the statements of material witnesses PW1 victim, PW2 Smt. Manju Patel and PW3 Sh. Anil Kumar Patel, it is not disputed that accused Gulshan had taken the victim, aged about 16 years to Vaishno Devi without the consent of her parents. It is further not disputed accused had not committed wrong act with the victim and as per her school certificate she was 16 years old on the day of incident.
SC No.27/2012 State Vs. Gulshan 15
46.As far as fact of 366 IPC is concerned, ingredients of section 366 IPC could not come on record. Hence, accused Gulshan is acquitted from charges u/s 366 IPC. From the case of prosecution it has been proved that accused had enticed the victim without the consent of her parents. Hence, in opinion of this court case of prosecution is proved u/s 363 IPC against the accused. Hence, accused Gulshan is convicted u/s 363 IPC.
PRONOUNCED IN THE OPEN COURT ON THIS 28.05.2012 (RAMESH KUMARII) ASJ01/ NORTH - EAST KARKARDOOMA COURTS, DELHI SC No.27/2012 State Vs. Gulshan 16 SC No.27/2012 State Vs. Gulshan 17