Delhi District Court
State vs Gaurav . Sc No.195/13, Fir No.96/13, Ps ... on 8 January, 2014
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IN THE COURT OF SHRI SANJEEV KUMAR: ADDITIONAL SESSIONS
JUDGE01: NORTH: ROHINI:DELHI
S. C. NO:195/13..
FIR NO:96/13.
PS : MODEL TOWN.
U/S. 363/366/376 IPC & 4 OF POCSO ACT.
STATE
VERSUS
GAURAV S/O. LATE SHRI JAI PRAKASH
R/O. H.NO.28, GURMANDI, RAJPURA,
DELHI.
Date of Institution:23.08.2013
Date of Argument :03.12.2013
Date of Decision :08.01.2014
JUDGMENT
1. The brief facts of the prosecution case are that, present case FIR has been registered on the basis of statement of Narender Sonkar, father of the prosecutrix D (name of the prosecutrix withheld) that, his daughter D aged about 17 years had gone from the house on 06.04.2013 at about 5pm for ironing the clothes and she has not returned back and he suspected that Gaurav (accused) had kidnapped her after enticing her. Investigations of the case was assigned to SI STATE VS GAURAV . SC NO.195/13, FIR NO.96/13, PS MODEL TOWN, US 363/366/376 IPC & 4 OF POCSO ACT page 1 of page 18 -:2:- DevI Lal to send the message of kidnapping of prosecutrix D to all the SSPs of India and SHOs and also on Zipnet. But prosecutrix D could not be traced.
On 10.05.2013, accused Gaurav and D surrendered before the concerned court and IO with the permission of court arrested accused Gaurav and took custody of D and he got conducted the medical examination of both the accused and D. He also got recorded statement of D under Section 164 Cr.P.C. and finally after completion of the investigation filed the chargesheet for offence u/s. 363/366/376 IPC & 4 of POCSO Act and accused Gaurav was put to trial.
2. After compliance of provisions of Section 207 Cr. P. C, Ld. MM committed the case to the Sessions Court as the case was exclusively triable by Sessions Court and was assigned to this Court by the Ld. Sessions Judge.
3. Vide order dated 13.09..2013, the Charges under section 363/366 IPC & 6 of POCSO ACT or in alternatively u/s. 376 IPC was framed against accused Gaurav, to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined two witnesses i.e. PW1 Narender Sonker (father of the prosecutrix) and PW2 Prosecutrix/D as accused has admitted the FIR as Ex.PX, Site plan Ex.PX1, Birth Certificate Ex.PX2, Recovery Memo of STATE VS GAURAV . SC NO.195/13, FIR NO.96/13, PS MODEL TOWN, US 363/366/376 IPC & 4 OF POCSO ACT page 2 of page 18 -:3:- prosecutrix Ex.PX3, Statement of the prosecutrix u/s. 164 Cr.P.C. Ex.PW2/A, Arrest memo Ex.PX4, MLC of accused as Ex.PX/5 and MLC of the prosecutrix as Ex.PW2/B.
5. After completion of prosecution evidence, statement of accused was recorded under section 313 Cr. P. C. and all the incriminating evidence was put to him in turn accused pleaded his innocence and he stated that, prosecutrix has herself left her house voluntarily to perform marriage with him and she with her own consent went to Ambala and thereafter to his native place i.e. Dalsingh Sarai, Samastipur, where he performed marriage with her, as she had insisted her to perform marriage with her. He further stated that, he established physical relationship with prosecutrix being husband and wife and with her consent and will of prosecutrix. He had not forced or compelled her for having sex with him. He further stated that, all the abovesaid acts were done by the prosecutrix with her own consent and voluntarily knowing fully about the consequences. Prosecutrix had also told him that, she was major and about 18 years of age at the time of incident and she was entitled for performing marriage with him.
6. Arguments were heard from Sh. A. K. Gupta, Ld. APP for the State and Sh. Vijay Kumar, ld. Counsel for the accused.
7. It is contended by Shri A.K. Gupta, ld. Addl. PP for the State that, as per the Birth Certificate issued by the MCD, D is less than 18 years of age, therefore, she was minor when the accused had STATE VS GAURAV . SC NO.195/13, FIR NO.96/13, PS MODEL TOWN, US 363/366/376 IPC & 4 OF POCSO ACT page 3 of page 18 -:4:- taken her after enticing her without the consent of her lawful guardian and further it is also admitted fact that accused and D have married and thus it is proved that accused had kidnapped her for marriage, therefore, offence u/s. 363/366 IPC, which proved against him. Further, he has argued that D had admitted that she has remained with accused as husband and wife, therefore, offence u/s. 376 IPC is also proved against her, who is less than 18 years. Hence, accused is liable to be convicted for offence u/s. 6 of the POCSO Act and in alternatively u/s. 376 IPC.
8. On the other hand, Shri Vijay Kumar, ld. Counsel for the accused has argued that prosecutrix has categorically stated in her statement recorded u/s. 164 Cr.P.C. that she has voluntarily left the house of her father, as he father was compelling her to marry to some other person, who used to drink and she had compelled the accused to take her with him and marry with her. Accordingly, accused had performed marriage. He further argued that D has disclosed her age as 21 years to the accused, therefore, accused was under impression that she was major and is fully competent to give her consent to go with him. Hence, no offence is made out against him, therefore, he is liable to be acquitted.
9. I have heard the rival arguments and gone through the record very carefully. As per prosecution accused kidnapped the D and then compelled her for marriage and illicit sexual intercourse and STATE VS GAURAV . SC NO.195/13, FIR NO.96/13, PS MODEL TOWN, US 363/366/376 IPC & 4 OF POCSO ACT page 4 of page 18 -:5:- committed repetitive penetrative sexual assault upon her.
10. The star witness of the prosecution prosecutrix/D, who is examined as PW2. She had deposed that on 06.04.2013 she had gone with accused Gaurav as per her own consent and she was in love with Gaurav. They firstly went to Bareilley and performed court marriage and thereafter they went to Muradabad and got stamped the marriage. She further stated that, from there they went to Balaji for religious purpose and also to Ajmer Sharif and from there they went to Agra and then they finally returned to Delhi and surrendered before the court and she was sent to Nirmal Chhaya by the court. She had married with Gaurav with her own consent. She is presently residing with her parents and she further intended to live with accused Gaurav. She further stated that no wrong act had been committed by accused during her stay with accused Gaurav. She was previously studying in Government Girls Senior Secondary School, Roop NagarII. Police had taken her for her medical examination at BJRM Hospital, where she had refused for her internal medical examination, her refusal is Ex.PW2/A and police recorded her statement before Magistrate. Her statement u/s. 164 Cr.P.C. is Ex.PW2/A and she further stated that she had married with the accused as per her own consent and same is mentioned in the abovesaid statement Ex.PW2/A. Thereafter, she was declared hostile by ld. Addl. PP for the State and cross examined her. STATE VS GAURAV . SC NO.195/13, FIR NO.96/13, PS MODEL TOWN, US 363/366/376 IPC & 4 OF POCSO ACT page 5 of page 18 -:6:- During her cross examination by ld. Addl. PP for the State she had deposed that she had not stated that during her stay with accused Gaurav they lived as husband and wife. Confronted from statement Mark A dated 10.05.2013, from where it is so recorded. She denied the suggestion that accused Gaurav had taken her against her consent. She further denied the suggestion that she was 17 years of age when Gaurav had taken her. She further stated the she does not remember her date of birth. She further stated that she cannot say that her date of birth in the MCD record is 03.08.1995. Her parents are not willing that she marry with accused Gaurav and that is why her father had lodged a missing report to the police. She further stated that, she was released by the order of court after three days and the custody was given to her parents. She was never forced by Gaurav to marry with him or accused has never indulge her in sexual act against her consent. The marriage contract agreement is Ex.PW2/C and accused had not committed any wrong act with her. She denied the suggestion that she has been won over by the accused and that why she she is deposing in his favour or that she has deliberately stated her age as 21 years or that she is intentionally not deposed her date of birth as 03.08.1995 or that she is deposing falsely.
In her cross examination by ld. Counsel for accused she had deposed that she is sure that her age is about 21 years.
11. Thus, from her testimony, it is evident that, she had not STATE VS GAURAV . SC NO.195/13, FIR NO.96/13, PS MODEL TOWN, US 363/366/376 IPC & 4 OF POCSO ACT page 6 of page 18 -:7:- testified that, accused had committed sexual intercourse with her. Rather, she had specifically stated that, nothing wrong had committed by accused with her, during her stay with accused. In her statement u/s. 164 Cr.P.C. Ex.PW2/B also she has not stated that, accused committed sexual intercourse with her. Though, in her MLC Ex.PW2/B, it is mentioned that, her hymen was found ruptured. But, I am not agree with the contention of the ld. Addl. PP for the State that, merely on this ground, it can be presumed that, prosecutrix D was subjected to sexual intercourse. The hymen can be ruptured without having sexual intercourse either due to some injury or whether woman is a sports women or involved in other hard physical activities. Moreover, even if we presume that, her hymen was ruptured due to sexual intercourse, it cannot be presumed that, same was ruptured due to sexual intercourse committed by the accused. Hence, in these circumstances, prosecution failed to prove that accused had committed penetrated sexual assault upon the prosecutrix or committed rape with her. Hence, I acquit him for offence u/s. 6 of the POCSO Act and 376 IPC.
12. The accused has been charged for kidnapping of a minor punishable u/s. 363/366 IPC which are reproduced as below:
363. Punishment for kidnapping.--Whoever kidnaps any person from 1[India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also STATE VS GAURAV . SC NO.195/13, FIR NO.96/13, PS MODEL TOWN, US 363/366/376 IPC & 4 OF POCSO ACT page 7 of page 18 -:8:- be liable to fine.
366. 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 fine; 1[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 be punishable as aforesaid].
Section 361 IPC defined kidnapping, which is reproduced below:
361. Kidnapping from lawful guardianship.-- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
13. Hence, in kidnapping, age of the prosecutrix is very material, as her consent is immaterial if a female is below 18 years of STATE VS GAURAV . SC NO.195/13, FIR NO.96/13, PS MODEL TOWN, US 363/366/376 IPC & 4 OF POCSO ACT page 8 of page 18 -:9:- age.
14. The accused has admitted the date of birth certificate Ex.PX2 of the prosecutrix issued by GNCT of Delhi. As per the said certificate the date of birth of the prosecutrix was 29.07.1995. As per judgment of Jarnail Singh Vs. State of Haryana, 2013 VII AD (SC) 313 it is held that the rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007 to determine the age will be applicable in cases of victim also where victim is a child. The relevant portion of the judgment is reproduced as below:
20. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The afore stated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred herein above read as under:
"12. Procedure to be followed in determination of age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case STATE VS GAURAV . SC NO.195/13, FIR NO.96/13, PS MODEL TOWN, US 363/366/376 IPC & 4 OF POCSO ACT page 9 of page 18 -:10:- may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) The matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee for the reasons to be recorded by them, may, STATE VS GAURAV . SC NO.195/13, FIR NO.96/13, PS MODEL TOWN, US 363/366/376 IPC & 4 OF POCSO ACT page 10 of page 18 -:11:- if considered necessary, given benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regard such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any or the conclusive proof specified in subrule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in subrule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those dispose off cases, where STATE VS GAURAV . SC NO.195/13, FIR NO.96/13, PS MODEL TOWN, US 363/366/376 IPC & 4 OF POCSO ACT page 11 of page 18 -:12:- the status of juvenility has not been determined in accordance with the provisions contained in subrule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of juvenile in conflict with law."
Even though, rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW - PW6
15. In view of the aforesaid judgment, the preference is to be given to the date of birth recorded in the certificate issued by GNCT of Delhi is to be given preference over the oral testimony of the PW2 D, where she claimed herself to be 21 years. Therefore, I held that the prosecutrix's date of birth is 29.07.1995.
16. PW1 has also stated that, her daughter had gone missing on 06.04.2013 and he made complaint in this regard to the police and police recorded statement Ex.PW1/A. In the said statement also PW1 had stated that, his daughter D had gone from his house on 06.04.2013 for ironing the cloths and thereafter she did not return back and he suspected that, one Gaurav (accused) had kidnapped her after STATE VS GAURAV . SC NO.195/13, FIR NO.96/13, PS MODEL TOWN, US 363/366/376 IPC & 4 OF POCSO ACT page 12 of page 18 -:13:- enticing her. As per testimony of PW2/D, she had gone with the accused on 06.04.2013 from her house. Thus, it is proved that prosecutrix was gone missing on 06.04.2013, hence, the age of the prosecutrix on that day comes to 17 years 6 months. Hence, though she was below 18 years of age on the day of incident.
17. The important ingredient of Section 361 IPC is whether accused has taken out the prosecutrix B from the custody or her lawful guardian. PW2 had deposed in her testimony deposed that, she had gone with the accused Gaurav on 06.04.2013. She first went to Bareilley and performed court marriage with accused Gaurav and thereafter went to Muradabad and got stamped the marriage and from there they went to Ajmer Sharif and from the Agra and from Agra they came back to Delhi. In her statement u/s. 164 Cr.P.C. Ex.PW2/B, she had deposed that, her parents wanted to marry her with a boy who sued to drink and she does not want to marry with him. Therefore, she had asked accused Gaurav and wept before him and on her repeated requests accused asked to take her and, therefore, she on the pretext of doing ironing on the clothes came out of her house and went away with the accused to Bareilley and then performed court marriage and then got notarized the said certificate of marriage in Moradabad. Hence, in these circumstances, from the testimony of PW2, it is evident that, PW2 had herself left her parental house, as she wanted to avoid with the person with whom her parents wanted to marry her. STATE VS GAURAV . SC NO.195/13, FIR NO.96/13, PS MODEL TOWN, US 363/366/376 IPC & 4 OF POCSO ACT page 13 of page 18 -:14:- She was of the aged of 17 years 6 months and thus she was on the verge attaining majority. Further from her testimony, it is evident that, accused had not done any positive act, which could be considered that he enticed the prosecutrix D or took her away from the custody of the lawful guardianship of her parents. If prosecutrix has herself left her home without any persuasion from the accused and accused just accompanied the prosecutrix, it could not be said that he entice her or took away her from the lawful guardianship. In these regard I rely upon S. Vardarajan vs State of Madras 1965 AIR 942, 1965 SCR (1) 243, Hon'ble Supreme Court while dealing with almost similar kind of situation has held that:
"In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence is to establish one of those thing is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the STATE VS GAURAV . SC NO.195/13, FIR NO.96/13, PS MODEL TOWN, US 363/366/376 IPC & 4 OF POCSO ACT page 14 of page 18 -:15:- lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her alongwith him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking"."Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian is said to kidnap such minor or person from lawful guardianship."
It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to "taking" out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Natarajan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law "taking". STATE VS GAURAV . SC NO.195/13, FIR NO.96/13, PS MODEL TOWN, US 363/366/376 IPC & 4 OF POCSO ACT page 15 of page 18 -:16:- There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant.
There is no suggestion that the appellant took her to the SubRegistrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat STATE VS GAURAV . SC NO.195/13, FIR NO.96/13, PS MODEL TOWN, US 363/366/376 IPC & 4 OF POCSO ACT page 16 of page 18 -:17:- to her or by any blandishments. The fact of her accompany him the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was of course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or unsophisticated village girl but a senior college.
18. In view of aforesaid facts and circumstances I hold that the prosecution has failed to prove that the accused committed kidnapping of 'D' and when kidnapping is not proved the offence of kidnapping of prosecutrix D for the purpose of compelling her for seducing her for illicit intercourse marriage or intercourse punishable u/s 366 IPC also goes.
19. In view of the aforesaid facts and circumstances, accused Gaurav stands stand acquitted for all the offence he is charged i.e. 363/366 and section 6 of POCSO Act and alternative STATE VS GAURAV . SC NO.195/13, FIR NO.96/13, PS MODEL TOWN, US 363/366/376 IPC & 4 OF POCSO ACT page 17 of page 18 -:18:- charge of 376IPC. However, he is directed to furnish his personal bond in the sum of Rs.10,000/ with one surety of like amount in compliance of provisions of Section 437A Cr.P.C. Till then his previous personal bond and surety bond extended. File be consigned to record room.
ANNOUNCED IN OPEN COURT (SANJEEV KUMAR)
ON 08.01.2014. ADDL. SESSIONS JUDGE 01
(NORTH):ROHINI:DELHI.
STATE VS GAURAV . SC NO.195/13, FIR NO.96/13, PS MODEL TOWN, US 363/366/376 IPC & 4 OF POCSO ACT page 18 of page 18