Delhi District Court
Case Of Mahadeo vs . State Of Maharashtra And Anr., (2013) ... on 17 August, 2017
IN THE COURT OF SHRI PREM KUMAR BARTHWAL, ASJ01, SPECIAL COURT
(POCSO), SOUTHEAST DISTRICT, SAKET COURTS, NEW DELHI
Case ID No. 02406R0027502014
SC No. 1183/16
FIR No. 296/10
Police Station : Okhla Industrial Area
Under Section : 363/366A IPC & 4 of POCSO Act
State
Versus
Vijay S/o Shri Damodar,
R/o Village Farooq Nagar,
Gurgaon, Haryana and
permanent address :
Tehsil Balnawas, District Sawai Madhopur,
Rajasthan.
Date of Institution : 31.01.2014
Date of Reserving Order : 10.08.2017
Date of Decision : 17.08.2017
J U D G M E N T
1.Brief facts of the case, as per final report, are that on 15.08.2010, the father of minor girl, 'P' aged about 13 years (The names of child victim and her family members are being withheld to protect their identity as per Section 33(7) of The FIR No. 296/10, PS OIA Page 1 of 19 Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act) came to PS Okhla Industrial Area and complained that his daughter 'P' had gone with accused, Vijay and that he had earlier filed complaint i.e. FIR No. 111/10 at PS Okhla Industrial Area U/s 363 IPC and that his daughter 'P' had returned to his house on 22.03.2010 but now again on 18.07.2010 the accused, Vijay had kidnapped his daughter 'P' at 02.00 PM. On the basis of said complaint, FIR No. 296/10, PS Okhla Industrial Area was registered and the matter was taken up for investigation.
2. During the course of investigation, the missing girl/victim was recovered and her statement was got recorded under section 164 Cr.P.C; documents regarding age of the victim were also obtained and her MLC was also prepared. Statements of witnesses were recorded by police and, after completion of investigation, charge sheet/final report was filed by the police against accused under sections 363/366/376 IPC & 4 POCSO Act.
3. After taking cognizance of the offence by my Ld predecessor, the accused was summoned and,thereafter, copy of charge sheet and documents were supplied to him. Thereafter, arguments on the point of charge were heard and based upon the material on record, charge against accused was framed by my learned predecessor for the offence punishable u/s 363/366A IPC & 4 of POCSO Act to which the accused pleaded not guilty and claimed trial. Accordingly summons were issued to the witnesses.
4. In order to substantiate the charge, the prosecution has examined 18 FIR No. 296/10, PS OIA Page 2 of 19 witnesses in all.
5. The prosecutrix/victim 'P' was examined as PW1 and she deposed that at the time of incident, accused was residing on rent near her house and that her parents had lodged a missing report in the police station raising suspicion against the accused. She has further deposed that she was having love affair with the accused and she had gone with him voluntarily in the year 2010. PW1 has further deposed that she stayed with the accused for three years and that she has a son aged 2 years from her relations with the accused. PW1 has deposed that the accused used to beat her daily after consuming liquor and that she had returned to her house due to this reason. Since the victim was not supporting the prosecution case, she was allowed to be crossexamined by the Ld. APP for the State. However, despite sustained crossexamination by the Ld. APP nothing material could be brought out in her evidence. During her crossexamination by the Ld. APP for the State, PW1 has stated that she had not stated to the police that the accused had taken her after instigating her. PW1 has further stated that she had not stated to the police that the accused had given her prasad of Kalka Mandir or that he had told her to accompany him and thereafter she had accompanied the accused. PW1 has deposed that she had gone with the accused voluntarily and she had not stated the same to the police. PW1 has further stated that she had not stated to the police that the accused used to confine her in the room. PW1 has further deposed that she had not stated to the police in her statement that accused had made relations with her without her consent. PW1 has deposed that she had not stated to the police that the accused FIR No. 296/10, PS OIA Page 3 of 19 was not allowing her to meet neighbours or that he was not allowing her to come out of the house alone. She stated that she never told that whenever she wanted to go back to her parents then she was beaten by accused. PW1 has further deposed that she had not told that accused had threatened to kill her son. PW1 has denied the suggestion given by the Ld. APP that the accused had taken her after alluring her or that she had told police that during her stay with the accused, the accused used to confine her in his room or that he did not allow her to talk to any neighbour or to come out from the room.
6. PW2, Smt. 'RD' is the mother of the child victim and she stated that she does not remember the date, month and year but one day her daughter 'P' had gone to drop her son Amar Singh at the school but she did not return thereafter and thereafter her husband had lodged a complaint in the police station. PW2 has further deposed that they were informed on the next day by the roommate of accused, Vijay that her daughter had gone with accused. PW2 has deposed that they had telephoned to accused who pleaded ignorance and after 2/3 days her daughter was left by the accused at her house. PW2 has deposed that her daughter was again taken away by the accused after the registration of this case and that her husband had gone to register an FIR again but the police official did not register the case. PW2 has further deposed that after three years her daughter had returned with her son and that she does not want to send her daughter with the accused.
7. PW3, Shri Anuj Aggarwal, Ld. MM has proved the application of the IO moved before him for recording the statement of PW1 U/s 164 Cr.P.C. as Ex.PW FIR No. 296/10, PS OIA Page 4 of 19 3/A; statement of victim recorded U/s 164 Cr.P.C. as Ex.PW3/B and certificate issued by him regarding correctness of statement as Ex.PW3/C. PW4, Shri Babu Lal has deposed that he had let out his premises to accused who was doing the work of mason and that one lady named 'P' alongwith her child was also residing with him as his wife and that after one and a half year, the said 'P' left the premises and had gone from there.
8. PW5, 'BL' is the father of the child victim and he stated that his daughter 'P' had gone with one Vijay five years ago and he had filed the complaint regarding missing of his daughter vide FIR No. 111/10 PS OIA and after two years, she had returned to his house of her own and then he filed a complaint, Ex.PW5/A at the police station against the accused.
9. PW6, Dr. Hansraj, Sr. Resident, Department of Forensic Medicine & Toxicology, AIIMS Hospital has proved the MLC of accused as Ex.PW6/A. PW7, Shri Kanwar Singh has deposed that accused was working with him as Mechanic and was residing on rent in Farukh Nagar alongwith his wife 'P'. PW7 has further deposed that accused had remained alongwith 'P' in Farukh Nagar for about two to two and half years and later on 'P' had gone to her maternal house and police arrested the accused in January, 2014. PW8, Dr. Kavita Khoiwal, Sr. Resident, Department of Obstetrics and Gynaecology, AIIMS Hospital has proved the MLC of victim, 'P' as Ex.PW8/A.
10. PW9, HC Dheer Singh has deposed that on 15.08.2010 after receiving DD No. 9A, he alongwith SI Sanjeev reached at Jhuggi No. 312, New Sanjay Camp, FIR No. 296/10, PS OIA Page 5 of 19 Okhla Industrial Area and met complainant, 'BL' and SI Sanjeev recorded the statement of complainant, 'BL' and prepeared rukka which was handed over to him for registration of FIR and after registration of FIR, he returned to the spot and handed over original rukka and copy of FIR to SI Sanjeev. PW10, Constable Jai Veer Singh has deposed that on 18.01.2014 he had conducted potency test of accused from AIIMS Hospital. PW11, Constable Birender has deposed that on 17.01.2014 at around 06.00 PM, accused, Vijay was arrested vide arrest memo Mark 11A and Mark 11B. PW12, SI Jawahar Singh has proved the computerized print out of FIR, Ex.PW12/A; his endorsement on rukka as Ex.PW12/B and certificate U/s 65B of Evidence Act as Ex.PW12/C. PW13, ASI Jaipal Singh has proved the arrest memo of accused as Ex.PW13/A and personal search memo of accused as Ex.PW 13/B.
11. PW14, SI Sanjeev Kumar has proved his endorsement on the statement of complainant, 'BL' as Ex.PW14/A; site plan and Ex.PW14/B. PW15, W/SI Madhu Sharma has deposed that on 10.01.2012 further investigation of this case was assigned to her and she got flashed WT message to trace out the prosecutrix 'P' and thereafter further investigation of the case was assigned to SI Sanjeev on 28.05.2012. PW16, SI Raj Kumar has deposed that on 27.09.2013 further investigation of this case was assigned to him and on 05.12.2013 he got recorded the statement of prosecutrix 'P' U/s 164 Cr.P.C. PW17, SI Hemlata has proved the exhibits of accused, Ex.PW17/A which was given by doctor during his medical examination; copy of seizure memo of birth certificate of Master Deepak (son of FIR No. 296/10, PS OIA Page 6 of 19 prosecutrix and accused) as Ex.PW17/B and birth certificate of Master Deepak as Ex.PW17/C. PW18, Ms. Kusum Kumari, Principal, SDMC Pratibha Vidyalaya Tehkhand No. 1 (Morning Shift), New Delhi has proved the application form as Ex.PW18/A; copy of affidavit as Ex.PW18/B and admission register as Ex.PW18/C. She also stated that Mr. Hansraj Baisla, the then Principal who had issued the certificate dated 22.01.2014, Mark PW17/A has expired on 03.12.2016.
12. I have heard the Ld. APP for the state, Shri Sunil Dutt and Shri M.L. Chaudhary, Ld. counsel for accused.
13. In the present case, accused Vijay has been charged under section 363/366A IPC & 4 of POCSO Act.
14. The onus to prove the aforesaid charges were upon the prosecution.
15. Section 361 Indian Penal Code, 1860 defines the offence of kidnapping from lawful guardianship. As per this section, whoever takes or entices any minor girl under eighteen years of age out of the keeping of the lawful guardian of such minor girl without the consent of such guardian, is said to kidnap such minor girl from lawful guardianship. In a case where such kidnap or abduction is 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 then the said act is an offence punishable under section 366 IPC, 1860.
16. The sexual offence of 'Rape' has been defined in Section 375 Indian Penal Code, 1860 and if the sexual intercourse with a woman is against her will (clause 1) FIR No. 296/10, PS OIA Page 7 of 19 or without her consent (clause 2), or her consent has been obtained forcibly (clause
3), or her consent has been obtained deceitfully (clause 4), or her consent has been obtained after administering stupefying or unwholesome substance or she is a person of unsound mind (clause 5), then it is 'rape'. However, if the sexual intercourse was even with her consent, if the girl is below 18 years, it is also 'rape' (clause 6). In such circumstances, the victim girl's consent is immaterial. But, a consensual sex by a man with a girl of above 16 years unaccompanied by any of the vices mentioned in clause 1 to 5 will fall out of the offence of rape as defined in Section 375 I.P.C.
17. Thus, for the offence of 'kidnapping' and 'rape', determination of the age of the victim girl at the time of incident is very important. The Hon'ble Apex Court in the case of Mahadeo Vs. State of Maharashtra and Anr., (2013) 14 SCC 637, has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 is applicable in determining the age of the victim of rape. In the State of Delhi separate rules have been framed and the same are Delhi Juvenile Justice (Care and Protection of Children) Rules, 2009 and Rule 12(3) of same provided the procedure to be followed in determination of Age as under:
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 date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;FIR No. 296/10, PS OIA Page 8 of 19
ii. the birth certificate given by a corporation or a municipal authority or a panchayat;
iii. the matriculation or equivalent certificates, if available;
(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 the juvenile or child.
18. In the present case the prosecution has examined PW18, Ms. Kusum Kumari, Principal, SDMC Pratibha Vidyalaya, Tehkhand No. 1 (Morning Shift), New Delhi to prove the age of the prosecutrix. As per said witness, the date of birth in the school record of the prosecutrix 'P' was 25.09.1998. However, during her crossexamination by the learned counsel for the accused, PW18 has stated that an affidavit regarding date of birth of the prosecutrix was filed by child's father and same was not notarized and the same had thumb impressions of child's father. She also stated that the entries of the said affidavit had been filled up by some teacher of their school but she cannot tell the name of the said teacher. She also stated that the student's father had undertaken in his affidavit to deposit the birth certificate of the child issued from concerned Municipal Authorities within one year but the same was never deposited till date and that there was no document regarding the age of the child in the school record except the affidavit, Ex.PW18/B. In Birad Mal Singhvi v. Anand Purohit (1988 Supp. SCC 604) the Hon'ble Supreme Court has held as under:
"To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or FIR No. 296/10, PS OIA Page 9 of 19 other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded."
19. In the present matter PW18 is not the author of the certificate, Mark PW17/A and it has nowhere come in the deposition of PW18 that she had ever worked with or could identify the signature/writing of Mr. Hansraj Baisla, the then Principal of her school who had issued the certificate dated 22.01.2014, Mark PW17/A and who had since expired on 03.12.2016. In fact PW18 had joined the said school only on 18.10.2016. Thus the said witness was not even working in the school at the time of issuance of the certificate dated 22.01.2014. Even otherwise the date in the school record was given on the basis of affidavit furnished by the father of PW1 but the entries in the said affidavit were filled by some teacher who has not been produced/examined by the prosecution. Even the said affidavit is not even notarized and undertaking was not complied with by deponent. The father of the child/victim was examined as PW5 but he has not uttered even a single word regarding the age/date of birth of the prosecutrix/victim in his deposition on 11.08.2015 and he had FIR No. 296/10, PS OIA Page 10 of 19 stated that he is illiterate. Even the mother of the prosecutrix/victim who was examined as PW2 has not given date of birth of the prosecutrix/victim. During her crossexamination on 19.05.2015, PW2 stated that she cannot tell the age when she had got married. She also stated that she cannot tell the date or the year of birth of the prosecutrix/victim. She also stated that she cannot say precisely that if the prosecutrix was born in the year 1988 or 1990 or 1992. She also could not give the year of her marriage and stated that she is illiterate. In these circumstances, the school record cannot be relied to assume or come to a conclusion that the prosecutrix was minor less than 18 years of age on the day of incident.
20. The prosecutrix, PW1 in her deposition dated 18.11.2014 has stated that she was having love affair with accused and she had gone with the accused voluntarily in the year 2010. She also stated that she stayed with the accused for three years and she has a son aged about two years from her relationship with the accused. She deposed that she had returned to her house due to beatings given by the accused after consuming liquor.
21. Full Bench of the Hon'ble Delhi High Court in case "Court On Its Own Motion (Lajja Devi) Vs. State" 2012 VI AD, Delhi 465, has held as under:
"51. If the girl is more than 16 years, and the girl makes a statement that she went with her consent and the statement and consent is without any force, coercion or undue influence, the statement could be accepted and Court will be within its power to quash the proceedings under Section 363 or 376 IPC. Here again no straight jacket formula FIR No. 296/10, PS OIA Page 11 of 19 can be applied. The Court has to be cautious, for the girl has right to get the marriage nullified under Section 3 of the PCM Act.Attending circumstances including the maturity and understanding of the girl, social background of girl, age of the girl and boy etc. have to be taken into consideration."
22. In relation to offence under Section 363 IPC for which the present FIR was registered against the accused, it would be appropriate to refer to a judgment of the Hon'ble Apex Court delivered in S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, wherein the Hon'ble Supreme Court observed that a girl below 18 years had asked her boyfriend (the accused) to come to a particular place and the accused had agreed to accompany the girl. It was held that where a minor leaves her father's protection knowing and having capacity to know the full import of what she is doing voluntarily joins the accused, the accused cannot be said to have taken her away from the keeping of her lawful guardian. The relevant observations of the Apex Court are as under: "The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany FIR No. 296/10, PS OIA Page 12 of 19 him. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. 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."
23. In the aforementioned case, the Apex Court by noting the distinction between taking and allowing a minor to accompany a person held that no case of kidnapping was made out.
24. In Ravi Kumar Vs. State & Anr. reported as 124 (2005) DLT 1, a Division Bench of Hon'ble Delhi High Court has ruled that the minority of the spouse cannot be a ground to declare their marriage illegal. As per this judgment, the marriage of such a spouse is neither void nor illegal on account of his or her being less than 18 FIR No. 296/10, PS OIA Page 13 of 19 years but over 15 years of age. It has been laid down by the Hon'ble Supreme Court of India in case S. Varadarajan Vs. State of Madras reported as AIR 1965 SC 942 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."
25. In the present case also the element of 'taking away' or 'enticement' is found to be lacking as there is no such averment in entire deposition of PW1. Rather the prosecutrix, PW1 has categorically averred during her deposition on 18.11.2014 that she was having love affair with the accused and she had gone with the accused voluntarily and she had stayed with the accused for three years and she also has a child with her relationship with the accused. In view of the material on record, it is evident that prosecutrix was willing and consenting party as she was in love with the accused and it seems that everything has happened with her own will. In these circumstances, the factum of kidnapping of prosecutrix does not stands proved. The prosecutrix/PW 1 has not stated that the accused had induced her to leave her house. She has also not stated that any force was used by the accused. Rather she FIR No. 296/10, PS OIA Page 14 of 19 categorically stated during her crossexamination on 18.11.2014 that she had gone voluntarily with the accused. She also stated that she had given the earlier statement before the Ld. MM on the asking of police and she had not stated that the accused had made relations with her without her consent. The prosecutrix has deposed that she did not tell the police that the accused had threatened to kill her son and she stated "ye sab baate mujhe police ne kaha tha ki me court me kahu."
26. The nutshell of foregoing discussion is that from the testimony of the prosecutrix as well as other material witnesses examined by it, the prosecution has failed to prove that accused had kidnapped prosecutrix, with intention to compel her to marry him and to force/seduce her to have illicit intercourse with him or that the accused has committed any sexual assault upon the prosecutrix. As such the accused, Vijay stands acquitted from the charges framed against him as the prosecution has failed to prove the charges under section 363/366A IPC & 4 of POCSO Act against the accused. Consequently, the personal bond/surety bond, if any, of the accused is discharged.
27. Therefore, from the evidence which has come on record, it is apparent that the prosecution has failed to establish that any assault, what to talk of sexual assault upon the child victim was committed by the accused. It has also come on record that some quarrel/altercation had taken place between father of child victim and accused due to which they had gone to police and no alleged offence of rape/sexual assault been committed by accused with the prosecutrix.
28. In terms of Section 437A Cr.P.C., let accused furnish personal bond in the sum FIR No. 296/10, PS OIA Page 15 of 19 of Rs.10,000/ with one surety in the like amount with undertaking to appear before the Appellate Court as and when he receives notice from it.
29. Case file be consigned to record room.
Announced in Open Court ( PREM KUMAR BARTHWAL )
on 17.08.2017. ASJ01, Special Court (POCSO),
SouthEast District, Saket Courts,
New Delhi
FIR No. 296/10, PS OIA Page 16 of 19