Delhi District Court
State vs Tanmay//Fir ... on 19 February, 2014
1
IN THE COURT OF SHRI DEEPAK GARG: ADDITIONAL SESSIONS
JUDGE01: NORTH: ROHINI:DELHI
S. C. NO:223/13.
FIR NO.193/13.
PS : ALIPUR.
U/S: 363/366/376 IPC & 4 OF POCSO ACT.
STATE
VERSUS
TANMAY S/O. SHRI TAPAS CHAKRABORTY
R/O. B108, TIKRI KHURD, DELHI.
Date of Institution:25.10.2013
Date of Argument:19.02.2014
Date of Decision:19.02.2014
JUDGMENT
1. Accused has been facing trial u/s.363/366/376 IPC and in alternative Section 4 of POCSO Act on the allegations that on 20.04.2013 at about 11am, accused had kidnapped the prosecutrix R (real name withheld) so that she may be forced or seduced to illicit intercourse. Further in between 20.04.2013 to 10.05.2013 he committed penetrative sexual assault with prosecutrix R aged less than 18 years.
2. The brief facts of the prosecution case are that, on 30.04.2013 DD No.44A was received and it was entrusted to PSI Sandeep Punia for inquiry. In the complaint, complainant Mohd. Saleem STATE VS TANMAY//FIR NO.193/13//PSALIPUR//U/S.363/366/376 IPC & 4 OF POCSO ACT PAGE 1 OF 7 2 had stated that, "he has been residing at Balmiki Basti, near Government School, Village - Singhu, Delhi alongiwth his family and running a shop of mutton and her sister R aged 14 years is missing since 11 a.m. of 20.04.2013, on that day, she had gone to shop to purchase pulse. It further mentioned that, he has been searching his sister R since then, but all in vain and he had suspicion that one boy namely Arjun, who has been working in a factory at Kundli, Haryana had enticed his sister and legal action may be taken against him".
3. Thereafter on the basis of said complaint an FIR No.193/13, u/s.
363 IPC was registered and further investigation of the case was marked to SI Sudeep by the direction of SHO. During investigation IO had flashed WT Message and her photograph was advertised in the newspaper as missing girl. During investigation on 10.05.2013 the said girl was found during raid at Tikri Khurd and on inquiry it has come to know that, said R had married with a boy namely Tanmay and since then they have been living as husband and wife. Thereafter IO had inquired from the accused and prosecutrix R. Prosecutrix R was medicolegally examined from SRHC Hospital. Accused Tanmay was arrested and his personal search conducted and recorded his disclosure statement. Thereafter medical examination of accused was conducted at SHRC Hospital. During investigation on 13.05.2013 STATE VS TANMAY//FIR NO.193/13//PSALIPUR//U/S.363/366/376 IPC & 4 OF POCSO ACT PAGE 2 OF 7 3 statement of prosecutrix R u/s. 164 Cr.P.C. Thereafter on 29.05.2013 Ossification Test of prosecutrix was conducted at SGM Hospital. Thereafter section 366/376 & 4 of POCSO Act were also added in the FIR. After completion of investigation, chargesheet was filed in this case through SHO.
4. After compliance of the provisions of Section 207 Code of Criminal Procedure, Ld. MM committed the case to the Court of Sessions. Thereafter, it was assigned to the predecessor of this court.
5. Vide order dated 07.11.2013, charges for offence u/s.
363/366/376IPC and under Section 4 of POCSO Act is framed against accused, to which accused pleaded not guilty and claimed trial.
6. Prosecution in support of its case examined three witnesses i.e. PW1is the prosecutrix R, PW2 Salim and PW3 Salima Khatoon.
7. PW1/Prosecutrix R had stated in her examination that, she was in love with accused and on 20.04.2013 she had gone with accused as per her own wish without informing her parents. She further stated that, she had gone directly to the house of accused on 20.04.13 and on 21.04.2013 they both married each other at Kalkaji Temple. Thereafter she asked accused to call his mother in the said temple and in response of the same, he had called his mother and thereafter she came there and accepted me as her STATE VS TANMAY//FIR NO.193/13//PSALIPUR//U/S.363/366/376 IPC & 4 OF POCSO ACT PAGE 3 OF 7 4 daughter in law and taken her to house and since then she is residing with accused in his house peacefully. She has no complaint about the conduct of the accused Tanmay as everything was done with her consent and desire. She has further deposed that, she was 19 years of age at that time. She was th reading at Madarsa situated at Bareily in 9 class. She further stated that, she had come to Delhi with her family during vacations and also for residing for one month in Delhi. On 10.05.2013 police apprehended accused Tanmay from his house and at that time her brother Salim was also with the police. She was also recovered from the house of accused Tanmay and recovery memo was prepared Mark A in presence of her brother. Her medical examination was got conducted by the police at SGM Hospital. Her statement was also got recorded by the Magistrate at Rohini Court. She was declared hostile by ld. Addl. PP for the State with the permission of court and cross examined her at length, but nothing incriminating have come up against the accused.
8. PW2 Salim has stated that on 20.4.13, his sister had gone from the house and she did not return to his house. He searched on his own but could not succeed. He went to the police and made a missing complaint. Police registered FIR u/s. 363 IPC on the basis of his statement. His sister was about 18 years of age but STATE VS TANMAY//FIR NO.193/13//PSALIPUR//U/S.363/366/376 IPC & 4 OF POCSO ACT PAGE 4 OF 7 5 because of confusion he reported the age of his sister to be 15 years. They do not have any date of birth certificate of prosecutrix R. He further stated that, her date of birth was mentioned in Madarsa Diniyat Talimul Kuran, situated at Pakka Katra, Tilihar only as per her estimated age. His sister has married with the accused Tanmay and Tanmay taking her care properly and he has no grudge against accused. He was not cross examined by defence.
9. PW3 Ms. Salima Khatoon is the mother of the prosecutrix R and she has deposed ditto statement as that of PW2 Salim.
10.As stated above, prosecutrix R has been examined as PW1 and she has stated that she was 19 years of age when this incident occurred. Her brother Salim (PW2) and her mother Mrs. Salima Khatoon (PW3) have also categorically deposed that prosecutrix was above 18 years of age at the time of the incident and because of confusion they had recorded her age to be around 15 years.
11. Prosecutrix R had initially taken admission in a Madarsa in which her date date of birth was recorded as 05.07.1998. But, her mother has categorically stated that her date of birth in the Madarsa was only her estimated age. They did not have any date of birth certificate of the prosecutrix R. It is relevant here to state that prosecutrix was subjected to Ossification Test, which was STATE VS TANMAY//FIR NO.193/13//PSALIPUR//U/S.363/366/376 IPC & 4 OF POCSO ACT PAGE 5 OF 7 6 conducted at Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi and it has been proved as Ex.PX. As per the same, her bony age was opined to be between 16 ½ - 19 years. This bony age report supports the case of the prosecutrix and her family members that, she was above 18 years of age at the time of the incident. It is relevant here to state that when prosecutrix R was examined under Section 164 Cr.P.C., she mentioned her age as 18 ½ years to the ld. MM, which has been so recorded in the statement under Section 164 Cr.P.C. Ex.PW1/A. The prosecution has not cited any other witness to prove the age of the prosecutrix. In the absence of any reliable school record, the prosecutrix, her brother and her father are the best witnesses to depose about her age. Hence, the age of the prosecutrix is held to be above 18 years of age at the time of the incident.
12.As stated above, prosecutrix R has categorically stated in her statement that she was in love with Tanmay and she had gone with him voluntarily and with her own wish and without informing her parents. They both got married at Kalkaji Temple. Whatever happened between them was with her consent. Hence the accused did not commit any offence under Section 363/366/376 IPC and Section 4 of POCSO Act.
13.The testimony of remaining witnesses was formal in nature and it appeared to the court that no purpose would be served by STATE VS TANMAY//FIR NO.193/13//PSALIPUR//U/S.363/366/376 IPC & 4 OF POCSO ACT PAGE 6 OF 7 7 examining the said witnesses because their testimony only related to the investigation of the case and, hence, PE was closed by the court.
14.Since there was nothing incriminating against the accused Tanmay on record, his statement u/s. 313 Cr. PC. is dispensed with.
15. Considering the statement of abovesaid witnesses, I hold that prosecution has miserably failed to prove the case against the accused. In view of aforesaid fact, accused is acquitted. Original documents, if any, be released and endorsement, if any be cancelled. Case property, if any, is confiscated to the State.
16.However, accused is directed to furnish their 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. within ten days. File be consigned to record room.
ANNOUNCED IN OPEN COURT (DEEPAK GARG) ON 19.02.2014. ADDL. SESSIONS JUDGE 01 (NORTH) ROHINI:DELHI.
STATE VS TANMAY//FIR NO.193/13//PSALIPUR//U/S.363/366/376 IPC & 4 OF POCSO ACT PAGE 7 OF 7