Delhi District Court
40]. Ld. Defence Counsel Strenuously ... vs Prakash Yadav @ Krishna' Page No.26 Of 32 on 28 April, 2018
IN THE COURT OF
SH. BALWANT RAI BANSAL, ADDITIONAL SESSIONS JUDGE1
SPECIAL COURT (POCSO), SOUTH, NEW DELHI
CISSC No.7320/16
FIR No.507/12
PS: Sangam Vihar
In the matter of:
State
versus
Prakash Yadav @ Krishna
S/o: Sh. Kailash Yadav
R/o: VillageJagatpur,
Devi Rai ka Tola, PSBasantpur,
District Sivan, Bihar. ............ Accused
Date of Institution : 10.04.2013.
Date of Reserving Judgment : 25.04.2018.
Date of Pronouncement : 28.04.2018.
:JUDGMENT:
[1]. Accused Prakash Yadav @ Krishna, has been charged and faced trial for the commission of offences punishable under sections 363/366/376 of IPC and section 4 of the POCSO Act 2012, CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.1 of 32 on the allegations that, he abducted a 14 years old girl child (the victim/prosecutrix), namely, 'N' (PW1 real name withheld in order to conceal her identity).
[2]. The brief facts of the case are that on 07.12.2012, the complainant, namely, 'K' (full name and address withheld in order to conceal the identity) came to PS Sangam Vihar and reported that his daughter, namely, 'N' (the prosecutrix) is missing since 03.12.2012. On the statement of the complainant, endorsement was made by SI Muneesh Kumar and got registered the case under section 363 IPC and the investigation was commenced by SI Muneesh. On 08.12.2012, the complainant (father of the prosecutrix) informed SI Muneesh from his mobile (number not disclosed to conceal the identity) that Prakash Yadav @ Krishna has run away with his daughter (the prosecutrix) for the purpose of marrying her and as such section 366 IPC was also added. Thereafter, the search for the prosecutrix was made at different locations in and around Delhi.
CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.2 of 32 [3]. On 15.12.2012, the investigation of the case was handed over to Inspector Shahid Khan, the SHO, PS Sangam Vihar. During the investigation, the location of the mobile phone was traced to Sector25, NOIDA, U.P. and the police team was sent to NOIDA, U.P. in search of the accused Prakash Yadav @ Krishna and the prosecutrix, but the accused could not be traced. On 04.01.2013, NBW against the accused was got issued, and on 12.01.2013, SI Muneesh Kumar and a team consisting of SI Braham Dutt, L/Ct. Indrawati, arrested the accused from the house of Jabbar Singh, R/o Peer Baba wali Gali No.2, Kunwar Nagar Colony, Kamalpur Road, Aligarh, Uttar Pradesh. The accused was interrogated and in his disclosure statement, he stated that he ran away with the prosecutrix with the intention to marry her, though he knew that she was a minor. He also disclosed that he went to Agra, got married in a temple and stayed in Agra at his friend's house as married couple, and thereafter, he went to Aligarh, U.P. and stayed there with the prosecutrix as husband and wife in a rented accommodation. The prosecutrix was also recovered and the statement of Jabbar Singh (landlord), in whose house, the CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.3 of 32 accused and the prosecutrix had stayed as tenant, was recorded. The accused and the prosecutrix were brought to Delhi and the accused was put up in the lockup of PSAmbedkar Nagar. On 13.01.2013, the medical examination of the accused and the prosecutrix was got conducted at AIIMS hospital, and the exhibits seized after medical examination were taken into police possession and deposited in the maalkhana of PS Sangam Vihar by SI Muneesh Kumar. Thereafter, the accused was produced before the court concerned and sent to judicial custody.
[4]. Statement of the prosecutrix under section 164 Cr.P.C. was got recorded on 13.01.2013, in which, she stated that she fell in love with the accused, though she knew that he is a married person. She stated that on 03.12.2012, she ran away with the accused and went to Agra and got married with the accused in a temple on her own will. She stated that they stayed together at the accused's friend's house for some days and then they went to Aligarh, U.P. and stayed in a rented accommodation as husband and wife. She also stated that she had CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.4 of 32 made physical relations with the accused on her own will. [5]. On 14.01.2013, the case file was handed over to IO/SI Kala Joshi for further investigation. She got counseled the prosecutrix from Ms. Garima of 'Prayatn NGO' on 15.01.2013 and on the same day, she produced the prosecutrix before the CWC, Lajpat Nagar, New Delhi. The father of the prosecutrix produced the photocopy of the birth certificate issued from the MCD, as per which, the date of birth of the prosecutrix is 27.02.1998, and the IO seized the same. On 05.03.2013, the boneage Xray report was also collected from the AIIMS hospital, as per which, the date of birth of the prosecutrix was opined between 10.2 to 15.8 years, and in view of the date of birth certificate and the boneage test of the prosecutrix, section 4 of the POCSO Act was also added to the FIR, and after completion of the investigation, the chargesheet was prepared by the IO for the commission of offences punishable under sections 363 / 366 / 376 of the IPC and section 4 of the POCSO Act 2012, and put up before the court.
CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.5 of 32 [6]. Charge for the commission of the offences punishable under sections 363 / 366 / 376 of the IPC and section 4 of the POCSO Act 2012, was framed against the accused, to which, the accused pleaded notguilty and claimed trial, and the case was proceeded for prosecution evidence.
[7]. In support of its case, the prosecution has examined 12 witnesses including the prosecutrix as PW1.
[8]. PW1 is the prosecutrix, namely, 'N', who is the main and crucial witness of the prosecution to prove its case. The testimony of PW1 (the prosecutrix) will be evaluated in the later part of the Judgment.
[9]. PW2, namely, 'K' (full particulars withheld in order to conceal the identity) is the father of the prosecutrix, who deposed that on 03.12.2012, his daughter, aged about 14 years, went missing as she did not return from school. He deposed that he made searches for her daughter and finally an FIR was registered on his statement CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.6 of 32 Ex.PW2/A. He deposed that after 2025 days, police recovered his daughter and he came to know that accused Prakash Yadav has taken away his daughter. He handed over the date of birth certificate Ex.PW2/B to the police vide memo Ex.PW2/C. [10]. PW3 Dr. Kavita Khoiwal, Sr. Resident, AIIMS, New Delhi proved the MLC report of the prosecutrix as Ex.PW3/A, which was prepared by Dr. Supriya, and as per the MLC report, the prosecutrix, aged 14 years was medically examined by Dr. Supriya on 13.01.2013, and as per the MLC report, her hymen was ruptured. [11]. PW4 Dr. Shivani Pahwa, Pool Officer, AIIMS, New Delhi, examined the prosecutrix on13.01.2013 in respect of her bone age. As per the Xray for boneage, the age of the prosecutrix was determined as between 10.2 years 15.8 years, and his report to this effect is Ex.PW4/A. [12]. PW5 Dr. Shashank Pooniya, Sr. Resident, AIIMS, New Delhi, had medically examined the accused on 13.01.2013 vide MLC CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.7 of 32 report Ex.PW5/A. He deposed that on physical examination of the accused, it was opined that there was nothing to suggest that he was unable to perform sexual intercourse under the normal circumstances.
[13]. PW6 HC Ashok Kumar, being the Duty Officer, recorded the FIR (Ex.PW6/A) on the basis of the Rukka prepared by SI Muneesh.
[14]. PW7 W/Ct. Indrawati joined the investigation of this case on 12.01.2013 alongwith SI Brahm Dutt and Ct. Rakesh, and pursuant to this, they went to Ghaziabad by a private vehicle, where one person had told to SI Brahm Dutt that Khurshid would meet in Aligarh, who kidnapped the prosecutrix 'N'. Thereafter, they reached Aligarh and reached Pir Baba Dargah, where they saw one boy on the road near Pir Baba. He deposed that SI Brahm Dutt made inquiry from that boy and after inquiry, the name of the said boy, was revealed as Krishna, who told that the prosecutrix was with him and he got recovered her from the room at the ground floor, situated in Gali No.2, near Pir Baba. The witness further deposed that the IO made inquiry CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.8 of 32 from the prosecutrix, and the wearing clothes of the prosecutrix were changed in a room, which were seized by the IO vide seizure memo Ex.PW7/A. Thereafter, they brought the said Krishna and the prosecutrix to Delhi. The IO called the mother of the prosecutrix in the police station and thereafter, PW7 took the prosecutrix alongwith her mother to the hospital for her medical examination. After the medical examination of the prosecutrix, the doctor gave him two sealed parcels, containing the exhibits pertaining to the prosecutrix, and thereafter, the witness took the prosecutrix and her mother to the police station and handed over the sealed exhibits to the IO/SI Braham Dutt, who seized the same vide seizure memo Ex.PW7/B. His statement MarkX was recorded by the IO in this case, which he stated to be correct.
[15]. PW8 HC Jai Prakash alongwith Ct. Suresh Yadav had taken the accused Prakash Yadav @ Krishna to the AIIMS hospital, where he was got medically examined, and after his medical examination, the doctor handed over to him three sealed pullandas CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.9 of 32 alongwith sample seal which he handed over to SI Muneesh, who took the same into possession vide seizure memo Ex.PW8/A. He deposed that after his medical examination, the accused was produced before the court concerned, and from there he was sent to judicial custody.
[16]. PW9 Sh. Sandeep Garg, ACMM conducted the proceedings Ex.PW9/B under section 164 of Cr.P.C. on 13.01.2013 and recorded the statement Ex.PW9/C under section 164 of Cr.P.C. of the prosecutrix.
[17]. PW10 SI Muneesh Kumar is the first IO of the case, who conducted the investigation of the case and recorded the statement of the prosecutrix, prepared the Rukka, made his endorsement Ex.PW10/A on the Rukka and got registered the present case FIR. He received the case file from Insp. Shahid Khan and he alongwith SI Brahm Dutt, W/Ct. Indrawati and Ct. Rakesh went to Aligarh in search of the accused. He arrested the accused from his house at Aigarh vide arrest memo Ex.PW10/B; conducted his personal search vide memo Ex.PW10/C and recorded his disclosed statement CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.10 of 32 Ex.PW10/D. He deposed that the prosecutrix was recovered at the instance of the accused from his tenanted house and the memo Ex.PW10/E in this regard was prepared by PW10 SI Muneesh Kumar. He got medically examined the prosecutrix and the accused, and also got recorded the statement of the prosecutrix under section 164 of Cr.P.C. PW10 SI Muneesh Kumar, after conducting the investigation of the case, handed over the case file to W/SI Kala Joshi on 14.01.2013 on the directions of senior officers. [18]. PW11 W/SI Kala Joshi is the second IO of the case, who received the present case file on 14.01.2013 and conducted the remaining investigation in the case. She deposed that on 15.01.2013, she got counseled the prosecutrix from 'Prayatn NGO', and the prosecutrix was also produced before the DLSA in Patiala House Courts for legalaid. She deposed that on the same day, the father of the prosecutrix produced the birth certificate Ex.PW2/B of the prosecutrix issued by the MCD, which she seized vide seizure memo Ex.PW2/C, and as per the birth certificate, the date of birth of the CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.11 of 32 prosecutrix is 27.02.1998. She further deposed that on 21.01.2013, the exhibits in the case were sent to FSL Rohini through Ct. Jai Prakash vide RC No.18/21/2013, and the bone age Xray report was also collected from the AIIMS hospital, as per which, the age of the prosecutrix is between 10.2 years to 15.8 years. She, after completion of the investigation, prepared the chargesheet for the commission of the offences punishable under sections 363/366/376 IPC and section 4 of the POCSO Act 2012, and filed in the court.
[19]. PW12 is the owner of the house, where the accused resided as tenant, however, he has not supported the case of the prosecution, stating that he does not know anything of this case and the police never recorded his statement.
[20]. Thereafter, the prosecution evidence was closed on 24.04.2018, and on 25.04.2018, accused Prakash Yadav @ Krishna was examined under section 313 of Cr.P.C. and his statement was recorded. During his examination under section 313 of Cr.P.C., the accused denied the correctness of the incriminating evidence CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.12 of 32 appearing against him during the prosecution evidence. The accused further stated that he has been falsely implicated in this case and he is innocent. He further stated that the prosecutrix was a major and with her own consent, she got married with him. He further stated that the father of the prosecutrix did not like their relationship, and therefore, the father of the prosecutrix has got registered this false and fabricated case against him.
[21]. Mr. Inder Kumar, the Ld. Special Public Prosecutor for the State has drawn my attention on the testimonies of the prosecutrix and her father as well as the other witnesses examined by the prosecution to prove its case. He has also drawn my attention to the documents exhibited during the examination of the prosecution witnesses, and submitted that the prosecutrix was a minor at the time of the commission of the offences and there is sufficient material on record to convict the accused for the commission of the offence punishable under sections 363/366/376 of the IPC and section 4 of the POCSO Act 2012.
CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.13 of 32 [22]. On the other hand, Mr. Kedar Yadav, Ld. Counsel for the accused submitted that the accused has not committed any offence as alleged against him and he has been falsely implicated in this case by the prosecutrix on the tutoring of her father. He further contended that the testimony of the prosecutrix is contradictory to her earlier statement and wholly unreliable. He also contended that the IO has carried shoddy investigation and deliberately withheld the evidence which did not support the prosecution case. He also argued that the prosecutrix had accompanied the accused with her own free will and consent and there is nothing in her testimony or in any other evidence led by the prosecution to infer that the accused had allured or enticed the prosecutrix to accompany him. He further submitted that the prosecutrix has also got married with the accused with her own free will and consent and the said fact has been duly admitted by her when her statement was recorded before the Ld. MM under section 164 Cr.P.C., though under the influence of her father she resiled from the said statement when she appeared before the court. He further submitted that the prosecutrix was major at the time when she CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.14 of 32 accompanied the accused and solemnized the marriage and the prosecution has miserably failed to prove that the prosecutrix was a minor. He further submitted that the conduct of the father of the prosecutrix is writ large that he supplied the forged and fabricated birth certificate purportedly issued by the MCD, which later on proved to be a forged document. He further submitted that the ossification test report of the prosecutrix is also not worthy of any consideration because the doctor has not opined that on what parameters the bone age of the prosecutrix was opined. Ld. Counsel for the accused further argued that keeping in view the testimonies of the prosecution witnesses and the statement of the accused recorded under section 313 of Cr.P.C., the prosecution has failed to prove its case beyond reasonable doubt, and therefore, the accused is entitled to be acquitted. [23]. I have considered the submissions made by the Ld. Special Public Prosecutor and the Ld. Counsel for the accused and have gone through the record of the case carefully. CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.15 of 32 [24]. The first point for determination is that: Whether the accused allured or enticed and kidnapped the prosecutrix and subsequently committed rape upon her?
[25]. The criminal law was set into motion on the complaint/ statement Ex.PW2/A made by 'K' (the father of the prosecutrix), as noted herein above, by which, he lodged the missing report of the prosecutrix since 03.12.2012 at 07:30am. On the aforesaid complaint, the present case FIR was registered under section 363 of the IPC and the investigation ensued and efforts to trace out the prosecutrix and the culprit were made. The prosecutrix was recovered from Aligarh at the instance of the accused from his tenanted room at Aligarh. During the course of the investigation, the statement of the prosecutrix Ex.PW9/C under section 164 of Cr.P.C. was also recorded on 13.01.2013, which reads as under: ["I study in class 7th. A boy, namely, Prakash Yadav @ Krishna is residing on rent in our house. I had friendship with him for the last onetwo months and I had fallen in love with him. I knew the age of Prakash Yadav and I also knew that he CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.16 of 32 was married as after the death of his elder brother, his bhabhi was got married with him. Prakash Yadav had three children. Our family members came to know about our love affair. On 03.12.2012 at about 07:00am, I left with Prakash Yadav on his motorcycle with my own free will and consent and went to Agra, where we both stayed in the house of Sanjay who was the friend of Prakash Yadav at Tedhi Bagiya. We both got married with each other in a temple after applying vermilion, wearing necklace and mangalshootra. After living for 10 days in the house of Sanjay, we both lived in a rented room at Aligarh, Uttar Pradesh, and during that period we both had physical relations. Thereafter, police traced us and yesterday (i.e. on 12.01.2013), the police took us to Delhi. Prakash Yadav had not forced me for doing anything and I left my house alongwith Prakash Yadav with my own free will and consent and we both got married"].
[26]. When the prosecutrix had appeared in the witnessbox as PW1, in her testimony, she deposed that she knows accused Prakash Yadav as he was their tenant. She does not remember the date, accused took her to Agra on a motorbike and they stayed there for about 15 days. They stayed at the house of Sanjay, who was the friend of the accused. They stayed there as husband and wife and had CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.17 of 32 physical relations with each other, although they did not marry. She stated that the police took her alongwith the accused back to Delhi. She gave a statement later on to the police. She also gave her statement Ex.PW1/A in the court.
[27]. The aforesaid statements of the prosecutrix given to the Ld. MM and also while appearing in the witnessbox before the court, would categorically reveal that she had gone with the accused with her own consent and remained for about 15 days with him in the house of Sanjay, the friend of accused Prakash Yadav. There is nothing in her statement that the accused had taken her after allurement or enticement. In her statement under section 164 Cr.P.C. (Ex.PW9/C), the prosecutrix even admitted that she got married with the accused with her own consent and the accused has not forcibly done any act with her, though when she appeared in the witnessbox, she alleged that she stayed there as husbandwife and had physical relations with each other although they did not marry.
CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.18 of 32 [28]. However, the fact of the matter remains that there are no allegations of kidnapping or of the forceful sexual intercourse by the accused with the prosecutrix against her consent. The accused does not dispute that the physical relations had taken place between them, though the accused has taken a plea that the prosecutrix has got married with him with her own free will and consent. [29]. The another witness is PW2 (the father of the prosecutrix) and his testimony is only to the point that his daughter went missing and did not return on 03.12.2012 from her school, and thereafter, he got registered the present case FIR. In his evidence, he does not allege that his daughter was kidnapped by the accused or she was raped by the accused. The remaining witnesses are only the formal witnesses and there are no other evidence to substantiate the prosecution's case that the accused has induced, enticed or allured the prosecutrix to accompany him.
[30]. From the testimony of the prosecutrix, it is proved that she was a willing and consenting party. However, the prosecution has CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.19 of 32 claimed that the prosecutrix was minor and her consent was immaterial, while the accused has claimed that the prosecutrix was a major at that time when she accompanied the accused and married with him. Therefore, if the prosecutrix is found to be minor, then her consent would be immaterial and despite her consent, the accused would be liable for the commission of the offences of kidnapping the prosecutrix and thereafter committing rape upon her. [31]. In view of the above, to arrive at the conclusion of the case, the second point for determination is that: What was the age of the prosecutrix on 03.12.2012, the date when she accompanied the accused?
[32]. In order to prove the age of the prosecutrix, the prosecution has relied upon the date of birth certificate Ex.PW2/B issued by the MCD. PW2 (the father of the prosecutrix) has stated in his evidence that he has handed over to the police the copy of the date of birth certificate Ex.PW2/B vide memo Ex.PW2/C. In his cross examination, he stated that he received the birth certificate Ex.PW2/B CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.20 of 32 on 16.07.2011 from the MCD. He denied the suggestion that he gave false and fabricated birth certificate of his daughter to the police. [33]. In view of the above, the accused has taken a defence that the Ex.PW2/B which is the birth certificate issued by the MCD is forged and fabricated document. The witness from MCD was called upon and the prosecution examined PW13 Dinesh Meena, Assistant Public Health Inspector, Central Zone, SDMC, New Delhi and he produced the summoned record i.e. the birth certificate having registration No.MCDOLRO9389038 dated 18.12.2009. As per the said birth certificate Ex.PW13/A produced by him, the same is registered in the name of one male child, namely, Sahi. He categorically stated that the birth certificate Ex.PW2/B was not issued from their office. Prior to examination of this witness, Mr. Kailash Chand Yadav, Assistant Public Health Inspector had appeared on behalf of SubRegistrar, Birth and Certificates, MCD Central Zone, and he stated that the birth certificate Ex.PW2/B was fake and manipulated.
CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.21 of 32 [34]. As such, it is apparent that the birth certificate Ex.PW2/B, placed on record by the prosecution, which shows the age of the prosecutrix as 27.02.1998 is forged and manipulated document, therefore, no reliance can be placed on the said document. [35]. To prove the age of the prosecutrix, the prosecution has also relied upon the ossification test report of the prosecutrix, contending that the ossification test report proved by PW4 Dr. Shivani Pahwa vide her report Ex.PW4/A, establishes that the prosecutrix was minor because as per this report, the age of the prosecutrix was determined between 10.2 15.8 years. PW4 had stated that she had determined the age of the prosecutrix as between 10.2 15.8 years as per the standard boneage charts available in the department of Radio Diagnosis at AIIMS hospital. This statement categorically reveals that PW4 has just calculated the age of the prosecutrix as per the chart available in the hospital. She did not determine the boneage of the prosecutrix on examination of other parameters i.e. the teeth and other physiological examination. Therefore, the report Ex.PW4/A prepared CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.22 of 32 by PW4 Dr. Shivani Pahwa cannot be relied upon.
[36]. Ld. Defence Counsel has also submitted that even if the boneage test of the prosecutrix vide report Ex.PW4/A as per which the boneage of the prosecutrix was opined by the doctor between 10.2 years to 15.8 years is taken to be correct, still considering the margin of two years, the boneage of the prosecutrix comes close to 18 years of age and hence she was at the age of discretion. He has vehemently argued that possibility of an error of plus/minus two years in the opinion rendered by radiological examination, cannot be ruled out and when two opinions are possible, one favouring the accused has to be taken. In this regard, he has relied upon the judgment passed by the Hon'ble Madhya Pradesh High Court in "Lakhanlal vs. State of Madhya Pradesh", 2004 CRI. LJ 3962 and the another judgment passed by Hon'ble Allahabad High Court in "Shakeel @ Pappoo & Anr. vs. State of U.P.", 2000 CRI LJ 153.
[37]. In Lakhanlal case (supra), the doctor examining victim girl had clearly mentioned in report that her age was below 18½ CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.23 of 32 years, on the other hand, doctor had admitted that in determining age on the basis of ossification test, variation of two years 'plus' or 'minus' is possible and in these facts the Hon'ble Madhya Pradesh High Court held that there is apparent contradiction in report of doctor and therefore benefit of doubt should go to accused and the victim cannot be held to be under age of 18 years on the date of incident. [38]. Similarly, in case of "Shakeel @ Pappu vs. State of U.P." (supra), ossification test report of the prosecutrix suggested her age as 17 years with margin of 1 year i.e. 18 years. The Hon'ble Allahabad Court while relying upon the various judgments of Hon'ble High Courts of Bombay and Madras and of Honb'le Apex Court, observed that opinion of age based on ossification is liable to an error of 2 years either way, if the opinion is to be exact it should be expressed in the form of upper and lower limit. Thus if a doctor gives an opinion based on ossification that in his opinion the age of Q is 15 years that opinion is liable to an error of 2 years up or down and the exact age will be between 13 and 17. With these observations, it was held by the CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.24 of 32 Hon'ble Allahabad Court that in the case in hand, on a margin of one year given at the age of 17 years estimated by the doctor it can safely be held that the age of prosecutrix on the date of occurrence was about 18 years.
[39]. In "Chattar Pal vs. State of N.C.T. of Delhi", CRL. A 763/2003 decided on 27.05.2015, it was observed by Hon'ble Delhi High Court that even if ossification test report is taken at its face value, considering the possibility of error on plus/minus two years in the opinion rendered by the radiological examination, it cannot be concluded with certainty that the prosecutrix was below 16 years of age on the date of incident. The Hon'ble High Court has relied upon the judgment of Hon'ble Apex Court in "Jaya Mala vs. Home Secretary, Govt. of J & K" (1982) SCC 1296 wherein it was held that there can be two years' margin either way in radiological examination and it is well settled that when two opinions are possible, the one favouring the accused, has to be taken.
CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.25 of 32 [40]. Ld. Defence Counsel strenuously argued that the prosecutrix was at the age of discretion and was well within the knowhow of her acts. Ld. Counsel for the accused relied upon the judgment passed by the Hon'ble High Court of Delhi in Crl. A. No.325/2013 entitled "Vijay Kumar vs. State of NCT of Delhi", in which the reference of the judgment passed by the Apex Court in AIR 1995 SC 2169 "Shyam and another vs. State of Maharashtra" has been given in Para No. 14.
[41]. I have gone through the judgment relied upon by the Ld. Defence Counsel. In the judgment passed by the Apex Court in AIR 1995 SC 2169 "Shyam and another vs. State of Maharashtra", while dealing with the offence under section 366 of the IPC and noting that the prosecutrix had not touched the age of 18 years (18 years being the adult age for the offence under section 366 of the IPC), the Apex Court in this context noting that the prosecutrix was at the age of discretion being sensible and aware of the intention of the appellant and having gone with him on her own, notwithstanding the fact that CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.26 of 32 she was technically a minor, had thought it fit to acquit the appellant for the offence under section 366 of the IPC. The relevant extract of the aforenoted judgment reads herein as under:
"In her statement in Court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the socalled "taking", it does not seem that the prosecutrix was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts would be under check by both the appellants/accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by "taking" her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but, still she was in the age of discretion, sensible and aware of the intention of the accused Shyam, that he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.27 of 32 proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam the appellant on her own and in that sense there was no "taking" out of the guardianship of her mother. The culpability of neither Shyam, A1 nor that of Suresh, A2, in these circumstances, appears to us established. The charge against the appellants/accused under section 366 of the IPC would thus fail. Accordingly, the appellants deserve acquittal. The appeal is, therefore, allowed acquitting the appellants".
[42]. I have given my thoughtful consideration to the aforementioned judgments and the testimonies of the witnesses examined by the prosecution to prove the age of the prosecutrix. In the case in hand, even if, the ossification test report is assumed to be correct, the age of the prosecutrix has been opined as between 10.2 15.8 years, and relying upon the aforesaid judgments cited supra, if two years margin is given, it comes around 17.8 years, which is just short of 18 years of becoming an adult. Therefore, the prosecutrix was at the age of discretion and was having enough knowledge of the consequences of having accompanied the accused with her free will and consent and having married with him later on.
CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.28 of 32 [43]. Keeping in view the aforesaid findings, in order to further opine whether the prosecutrix was a consenting party and she left with the accused with her own free will and consent, it would also be relevant to refer to the case titled as "S. Varadarajan vs. State of Madras" (reported as AIR 1965 SC 942), where in while distinguishing between "taking" and "allowing a minor to accompany a person", it has been laid down by the Hon'ble Supreme Court of India that: "There is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian."
[44]. The Hon'ble Delhi High Court of Delhi in para 8 of the judgment titled as "Bunty vs. State (G.N.C.T.) of Delhi", in Crl. Appeal no. 846/2009 decided on 16.03.2011 held that: CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.29 of 32 "8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had traveled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...." [45]. In view of the above discussion and giving my thoughtful consideration to the aforecited case laws, giving benefit of doubt to the accused, it is held that prosecutrix was just short of about four months of attaining 18 years of age at the time of the alleged commission of the offences even if the ossification test report is assumed to be correct, and she was wellaware of the pros and cons. The prosecutrix was sensible and aware of the intention of the accused and she stayed with the accused as a voluntary stay. [46]. Therefore, in the factual matrix of the present case, I am of the considered opinion that the prosecutrix has accompanied the accused willfully and voluntarily and her consent being the age of discretion, deems to be valid, and therefore, giving benefit of doubt to CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.30 of 32 the accused, the accused cannot be held guilty for the commission of the offences punishable under sections 363 and 366 of the IPC. Accordingly, since the prosecution has not been able to prove the age of the prosecutrix that she was a minor, beyond reasonable doubt, therefore, the benefit of doubt is given to the accused and he is not held guilty for the commission of the offence of rape and penetrative sexual assault punishable under section 376 of the IPC and section 4 of the POCSO Act 2012.
[47]. In summing up, I have no hesitation to hold that prosecution has failed to prove the charges against the accused for the commission of the offences punishable under sections 363/366/376 of the IPC and section 4 of the POCSO Act, and therefore, accused Prakash Yadav @ Krishna is not found guilty of the aforesaid offences as charged with, and consequently, he is hereby acquitted. [48]. However, Prakash Yadav @ Krishna is required to furnish bail bond in the sum of Rs.10,000/ with one surety of like amount, under section 437A of Cr.P.C, which shall remain in force for CISSC No.7320/16 'State vs. Prakash Yadav @ Krishna' Page No.31 of 32 a period of six months. He has already executed and furnished the said bail bonds and the same are accepted.
[49]. File be consigned to Record Room after necessary compliance.
(Pronounced in the open court (Balwant Rai Bansal) th on 28 day of April 2018) Additional Sessions Judge01 Special Court (POCSO), South District:Saket Courts:
New Delhi.
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