Delhi District Court
State vs . Shiva on 18 December, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 177/2013
Unique Case ID No. 02404R0232232013
State Vs. Shiva
S/o Late Sh. Rajender
R/o RZ144, Mala Bar Basti,
Sagarpur, Delhi
(Acquitted)
FIR No.: 294/2011
Police Station: Begumpur
Under Section: 363/366 IPC
Date of committal to session court: 8.10.2013
Date on which orders were reserved: 18.12.2013
Date on which Judgment pronounced: 18.12.2013
JUDGMENT:
(1) As per the allegations on 22.11.2011 during the day time from the house No. D266, Rajeev Nagar, Delhi the accused Shiva kidnapped the minor prosecutrix 'R' (name of the prosecutrix is withheld as it is a case under Section 363/366 IPC) aged around 17 years from the lawful guardianship of her parents, with the intent that she may be forced and seduced to illicit intercourse.
St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 1 BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 25.11.2011 one Anand Kumar S/o Late Mangat Ram came to the police station Begumpur and lodged a missing report in respect of his daughter 'R' wherein he expressed his suspicion on the accused Shiva S/o Rajender. On the basis of the said complainant the present case registered under Section 363 Indian Penal Code and efforts were made to trace the prosecutrix but she could not be traced. (3) On 26.12.2011 the complainant Anand Kumar came to the Police Station and disclosed to the Investigating Officer SI Chetan that the prosecutrix 'R' was residing with the accused Shiva at Sagarpur on which a raiding party was constituted and the prosecutrix 'R' was recovered from the house of the accused Shiva at Jhuggi No. RZ144, Sagarpur. The accused Shiva was also present at his house at that time and he was arrested in this case. On the next day the statement of the prosecution 'R' was recorded by the Ld. MM under Section 164 Cr.P.C. but she refused to go with her parents and hence she was sent to CWC. The prosecutrix 'R' was thereafter produced before the Ld. MM as she became a major and it was then that she was set at large by the Ld. MM. After completion of investigations charge sheet was filed against the accused Shiva for the offence under Section 363/366 Indian Penal Code.
CHARGE:
(4) Charges under Section 363/366 IPC were settled against the accused Shiva to which he pleaded not guilty and claimed trial. St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 2
EVIDENCE:
(5) In order to prove its case the prosecution has examined only Eight Witnesses as under:
Public witnesses/ complainant/ prosecutrix:
(6) PW6 Anand Kumar a Baildar in the MCD is the father of the prosecutrix and has deposed that his family is comprising of his wife and four children and the prosecutrix 'R' is his third child. According to the witness, on 22.11.2011 his daughter 'R' had gone at PP Boutique, Rajeev Nagar where she used to learn stitching but did not return. He has further deposed that at that time she was wearing pink colored salwar suit and initially he tried to search for her in his neighborhood and relationships but could not find her, after which he made a complaint to the police on 25.11.2011 which complaint is Ex.PW6/A. He has testified that he had his suspicion on the accused Shiva who was resident of the same area and was known to him previously as such.
The witness has also deposed that he made further inquiries on his level and came to know that Shiva was residing at Sagarpur. He has also deposed that the police had got the information that his daughter was with the accused Shiva whom the witness has correctly identified in the Court. According to the witness, on 26.12.2011 at about 88:30 PM he accompanied HC Rajesh and SI Chetan to Sagarpur Jhuggie cluster and on reaching there he found his daughter with Shiva and his mother. The witness has further deposed that he identified her after which they returned to the police station from where he St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 3 was sent back home while his daughter remained in the police station. He has testified that in the morning he was again called by SI Chetan to the police station after which her daughter was taken to SGM hospital where her medical examination was got conducted. According to him, thereafter his daughter was produced in the court of Ld. MM where her statement U/s 164 Cr. P.C. was got conducted. He has also deposed that in the court his daughter did not want to go with him and hence by the directions of Sh. Sumedh Kumar Sethi Ld. MM she was produced before CWC. The witness has further deposed that it was on a subsequent date when his daughter became a major more than 18 years of age and was produced before the court of Sh. Sumedh Kumar Sethi Ld. MM where again his daughter refused to go with him but consented to go with her brother i.e. his son Nitin Kumar and his uncle /chacha namely Ram Parshad Kashyap.
(7) In his crossexamination by the Ld. Defence Counsel the witness has deposed that he made his first complaint on 25.11.2011 and has explained that for three days he searched his daughter himself in Azadpur and from Azadpur he came to know that his daughter had gone with accused Shiva, only after which he came to know that his daughter had gone with accused Shiva. According to the witness, accused Shiva never came to his house and sister of Shiva was friend of his daughter as they were studying together. He has admitted that he knew the family of Shiva prior to this incident. He is not aware that his daughter was having an affair with Shiva and has voluntarily explained that she was staying at her dadi's house at E364, MCD Volony, St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 4 Azadpur and was studying there. He has denied the suggestion that his daughter was staying with him and he is deliberately concealing this fact from the court. The witness has admitted that the complaint was made by him and not by his mother/dadi of prosecutrix 'R'. According to him, at the time of the incident he had brought his daughter to his house and she was learning stitching and has voluntarily added that his mother had complained to him against his daughter 'R' and warned him stating that she was having affair with some boy and she was going around with some boy on which he brought his daughter to his house (ladki teri thik nahi hai, kabhi kisi ke sath ghumte hai aur kabhi kisi ke sath gumte hai, isliye mein use apne ghar ley aya). The witness has also admitted that his daughter informed him that she had gone to Shiva of her own will and she would marry Shiva after attaining majority age on 24.03.2012. He has further admitted that he refused to get her marry to Shiva and objected to her alliance with him due to which reason she went to him and started staying with him and has again voluntarily explained that he (Shiva) is a criminal. He has denied the suggestion that at the time of the incident when his daughter eloped he did not know that Shiva had criminal cases against him and has again voluntarily added that he was aware of his criminal background but his daughter was not aware. According to the witness, he is am not aware if Shiva has not been convicted in any case.
(8) The witness has testified that his eldest child is Nitin who is around 2425 years and is married with two daughters aged 3 years and six months. St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 5 According to the witness, his second child is his daughter namely Ekta and at the time of incident she was studying in class XI. He has further deposed that the year of birth of Ekta is 1991 and the prosecutrix 'R' is four years younger to Ekta and has voluntarily explained that the year of birth of 'R' is 1994. He is unable to produce the date of birth certificate of 'R'. The witness has also deposed that he has not got the date of birth of Nitin and Ekta registered with MCD and also cannot produce their date of birth certificate. He has admitted that the date of birth given in the school was on the basis of the affidavit given by him. He has denied the suggestion that he has given the false year of birth of 'R' in the school record or that she was actually born in the year 1992 or that he did this to secure a benefit for her at a later stage. He has denied the suggestion that 'R' was a major at the time of incident and therefore soon after she was brought in the family she was got married. The witness has admitted that the date of birth mentioned in the CBSE record is 23.03.1994 whereas in the school record it is 24.03.1994 but is unable to explain the discrepancy in the date of birth and has voluntarily added that one of his daughter was born on 23rd March and one was born on 24th March. He has denied the suggestion that he used to beat her daughter or that he had forcibly got his daughter 'R' married to some other person (9) The prosecutrix 'R' has been examined as PW8. She has deposed that presently she is residing along with her family comprising of his husband and a child aged about nine months. According to the witness, the accused Shiva was known to her before her marriage since his sister was studying in St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 6 her class in the year 20092010 and he was residing in their neighborhood. She has testified that she was having an affair with Shiva and wanted to marry him and therefore on 22.11.2011 she went to the house of Shiva at Sagarpur of her own and remained with him for about one month. She has also deposed that on 26.12.2011 her father accompanied with police officials and came to the house of Shiva and took them to the police station and despite her protest she was handed over to her father. According to the witness, on 27.12.2011 she was called to the SGM Hospital by SI Chetan where her medical examination was conducted where she also told the doctor that she had gone with the accused Shiva of her own. The witness has also deposed that thereafter she was produced before the court of Ld. Illaka Magistrate where his statement U/s 164 Cr.P.C. was recorded which proceedings are Ex.PW8/A. She has further deposed that she had also told the Ld. MM that she had gone with Shiva voluntarily of her own and wanted to marry him. On a specific court question the witness has deposed that her date of birth given in the school record is 24.03.1994.
(10) In her crossexamination by the Ld. Defence Counsel the witness has admitted that the accused Shiva did not allure her or ask her to come to his house and has voluntarily explained that she had voluntarily left the house of her parents and went to the house of Shiva and started staying with him. She has also admitted that as on date she is married and that her father was against her marriage with accused Shiva on St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 7 which he got the FIR on false facts registered. The witness has further admitted that even after her recovery she told the court that she did not want to go with her parents due to which she was sent to Nirmal Chaya and after she became a major she was set at large. According to her, when she left her house she was hardly about twothree months less than 18 years as per the date of birth given in the school certificate. The witness has testified that no sexual assault was committed by accused with her during the time she stayed with him. She has deposed that she does not wish to have any legal action against the accused.
Witness of Medical Record:
(11) PW3 Dr. Ashu Gupta has proved that on 27.12.2011 at 10:50 AM, the prosecutrix 'R' had been brought to the hospital by L/Ct. Suman for examination with alleged history of absconding from home on 22.11.2011 and recovered on 27.12.2011 at 4 AM from Sagarpur. According to the witness, no fresh injuries were seen at the time of examination and the history was given by the patient herself according to which she had absconded of her own on 22.11.2011 with her boy friend Shiva to his home at Sawanpark without information to her parents, where she lived one month five days with him and his parents and gave no history of physical assault and history of sexual intercourse threefour times present. She has further deposed that various samples were taken and on local examination showed hymen was torn. She has proved the MLC of the prosecutrix which is Ex.PW3/A bearing the St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 8 signatures of Dr. Lakhvinder Kaur at point A and signatures of Dr. Anjana at point B. (12) In her crossexamination the witness has admitted that she had not examined the patient personally and she is deposing on the basis of official record only.
Police/ official witnesses:
(13) PW1 HC Parmod is a formal witness being the Duty Officer wherein he has examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved DD No. 7A dated 25.11.2011, copy of which is Ex.PW1/A, copy of FIR which is Ex.PW1/B and his endorsement on rukka which is Ex.PW1/C. He has been cross examined by the Ld. Defence Counsel but nothing much has come out of the same.
(14) PW2 W/Ct. Suman is also a formal witness who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) wherein she has proved that on 27.12.2011 she took the prosecutrix 'R' to SGM Hospital for her medical examination. She has proved the seizure memo of pullanda handed over by the doctor after examination of prosecutrix 'R' which is Ex.PW2/A. (15) In her crossexamination the witness has admitted that the prosecutrix had refused the internal examination. According to him, the mother of the prosecutrix was also with them at that time. She has admitted St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 9 that the prosecutrix has also told the doctor that she had gone with the accused voluntarily and with her consent.
(16) PW4 HC Rajesh has deposed that on 26.12.2011 he joined the investigations along with Ct. Jai Singh, complainant and SI Chetan and went in search of the prosecutrix at Sagarpur, Nalapar Basti. According to the witness on the pointing out of complainant they reached at jhuggie No. RZ144, Sagarpur where the prosecutrix was found along with the accused Shiva and the prosecutrix was identified by complainant/ her father on which the prosecutrix was handed over to her father. He has proved that the accused was then interrogated and arrested vide memo Ex.PW4/A, his personal search was also conducted vide memo Ex.PW4/B and his disclosure statement was also recorded by the Investigating Officer vide memo Ex.PW4/C. The witness has further deposed that the accused disclosed that he wanted to marry prosecutrix but they could not get married and thereafter they returned to the police station and on the directions of the Investigating Officer the medical examination of the accused was got conducted from SGM hospital and thereafter again he was brought in the police station and put in the lockup of Police Station Begumpur.
(17) In his crossexamination by the Ld. Defence Counsel the witness has deposed that he cannot tell the approximate age of prosecutrix by her physical appearance and has voluntarily explained that her father was claiming that she was less than 18 years. He has denied the suggestion that at the time of recovery the prosecutrix was protesting and repeatedly saying that St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 10 she had voluntarily come with accused Shiva and was staying with him. According to the witness, at the time of alleged recovery of the prosecutrix there was no lady police official nor any lady of the neighborhood or the NGO was joined. He has testified that at the time when the prosecutrix was handed over to her father, the Investigating Officer prepared her handing over memo, but it has been observed by this Court that there is no handing over memo on record. He has also deposed that no superdaginama was prepared at the time of handing over of prosecutrix to her father. He has denied the suggestion that he had not joined the investigations and that is why she is unable to give the details. He has also denied the suggestion that he was not present at the time of recovery of the prosecutrix and it is for this reason that his signatures are not present on the recovery memo of the prosecutrix and also on the disclosure statement of the accused.
(18) PW5 Ct. Jai Singh has deposed that on 26.12.2011 he joined the investigations along with HC Rajesh complainant and SI Chetan and went in search of the prosecutrix at Sagarpur, Nalapar Basti where on the pointing out of complainant they reached at jhuggie No. RZ144, Sagarpur where the prosecutrix was found along with the accused Shiva. According to him, the prosecutrix was identified by complainant/ her father on which the prosecutrix was handed over to her father. He has proved that the accused was then interrogated and his disclosure statement was recorded vide Ex.PW4/C. He has testified that thereafter they returned to the Police Station and on the directions of the Investigating Officer the medical examination of St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 11 the accused was got conducted from SGM hospital and thereafter again he was brought in the police station and put in the lockup of Police Station Begumpur.
(19) Leading questions were put to the witness by the Ld. Addl. PP for the State, wherein the witness has deposed that he does not recollect if the arrest memo and personal search memo was also prepared at the spot. (20) In his crossexamination by the Ld. Defence Counsel the witness has deposed that by her appearance the prosecutrix appeared to be around 1718 years of age. He has admitted that at the time of recovery the prosecutrix was protesting and repeatedly claiming that she was above 18 years of age and she had voluntarily gone to the accused Shiva and was staying with him. He has testified that at the time of alleged recovery of the prosecutrix there was no lady police official nor any lady of the neighborhood or from the NGO was joined and her mother was also not there. He has admitted that the prosecutrix did not want to go with her father and was forcibly handed over to him. He has denied the suggestion that he was not present at the time of arrest of the accused and it is for this reason that his signatures are not present on the recovery memo of the prosecutrix and also on the arrest memo and personal search of the accused. He is unable to tell if the prosecutrix was major at the time of the incident and has deliberately shown as a minor in order to fabricate a case against accused and to pressurize the prosecutrix as her family was not willing to accept her alliance with the accused.
St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 12 (21) PW7 SI Chetan is the Investigating Officer of the present case. He has deposed that on 25.11.2011 he was posted at police station Begumpur and on that day one Anand Kumar came to the police station and submitted a missing information regarding his daughter 'R'. According to the witness, they took his complaint and after making his endorsement on the same vide Ex.PW7/A, the FIR was registered after which the investigations were handed over to him. The witness has also deposed that the complainant expressed his suspicion on one boy Shiva residing in the same area and at the instance of the complainant they tried to search the prosecutrix at Azadpur area where he claimed that Shiva was residing but they could not find them. He has further deposed that on 26.12.2011 the complainant Anand came and disclosed that his daughter and Shiva were residing at Sagarpur on which he shared this information with his senior officers and on their directions constituted a raiding party comprising of himself, Ct. Jai Singh and HC Rajesh and with the complainant went to Sagarpur, Nalapar Basti. The witness has testified that on local inquiry they came to know that Shiva was residing at jhuggie No. RZ144, Sagarpur on which they reached the said jhuggie where they found the prosecutrix along with the accused Shiva and the prosecutrix was identified by complainant/her father and was recovered vide memo Ex.PW7/B, after which the prosecutrix was handed over to her father. According to the witness, the accused Shiva was then taken into custody and interrogated and arrested vide memo Ex.PW4/A, his personal search was also conducted vide memo Ex.PW4/B and his disclosure St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 13 statement was also recorded vide memo Ex.PW4/C. The witness has also deposed that accused disclosed that he wanted to marry prosecutrix but they could not marry. He has testified that thereafter they returned to the police station and thereafter on his directions Ct. Rajesh got conducted the medical examination of the accused from SGM Hospital and the prosecutrix was also sent to the SGM hospital along with W/Ct. Suman where she was medically examined. According to him, after her return to the Police Station W/Ct. Suman handed over to him six sealed pullandas duly sealed with the seal of the hospital which he seized vide seizure memo Ex.PW2/A. He has further deposed that thereafter the accused was brought in the police station and put in the lockup of Police Station Begumpur and on the next day he was produced before the Ld. Illaka magistrate and got remanded to Judicial Custody. The witness has also deposed that on the next day the father of the prosecutrix produced her before the court of Ld. Illaka Magistrate where he moved an application for recording her statement U/s 164 Cr. P.C. which application is Ex.PW7/C after which her statement U/s 164 Cr.P.C. was recorded vide Ex.PW7/D. He has also proved having moved an application which is Ex.PW7/E for providing the copy of statement of prosecutrix U/s 164 Cr. P.C. which application was allowed. The witness has further deposed that after her statement was recorded by the Ld. MM, the prosecutrix 'R' refused to go with her parents and hence she was sent to CWC by the order of the Ld. MM and then she was produced before CWC by him. He has proved having recorded the statements of various witnesses and prepared the charge St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 14 sheet and filed the same in the court. He has testified that the prosecutrix was thereafter produced in the court of Ld. MM as she had become a major and it was then that she was set at large by the Ld. MM and she accompanied her brother and grand father.
(22) In his crossexamination by the Ld. Defence Counsel the witness has deposed that on 25.11.2011 he did not do anything except recording the statement of complainant and lodging the FIR and has again clarified that he went in search of prosecutrix in Azadpur in MCD Colony and went to the house of maternal uncle of accused Shiva but he does not recollect the address. According to the witness, he completed the formal proceedings such as WT Message and filled up the missing forms in the police station. He has denied the suggestion that no photograph of prosecutrix was given by the father of prosecutrix or that is why it is not mention in his statement U/s 161 Cr.P.C. or in the complaint. He has testified that he went twice to Azadpur but he does not remember the exact dates. He has denied the suggestion that he never went to Azadpur and that is why he does not remember the exact dates. He has admitted that he did not make any inquiry/ investigations from the period 26.11.2011 to 25.12.2011 regarding the present case. The witness has also admitted that the complainant did not pursue the case and did not approach the police after 25.11.2011 till 25.12.2011. According to him, he did not ask the reason as to why the complainant had not approach the police station since 25.11.2011 to 25.12.2011. He has testified that they reached Sagarpur at about 11:3012 PM. He has also deposed that the complainant St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 15 came to him in the evening at about 56 PM on 26.12.2011. According to the witness, he did not make any DD entry of his departure or arrival in the police station but he made his departure entry twice prior to 26.12.2011 when he went in search of prosecutrix at Azadpur but it has not been placed on record by him. The witness has further testified that he did not record the statements of neighbors of prosecutrix in the present case but made inquiries from them on 25.11.2011. He has admitted that he has not mentioned about his making inquiries in the neighborhood of prosecutrix on 25.11.2011 and that after her recovery the prosecutrix told them that she had come of her own will to Shiva and wanted to marry Shiva. He has however denied the suggestion that she had informed him that she was major at the time of the incident or that by her physical appearance the prosecutrix seems to be 1820 years. He has admitted that the prosecutrix had told him that she did not want to go with her father and that after her refusal to go with her father still she was handed over to her father. The witness has also admitted that the prosecutrix had refused to got conducted her medical examination but it was get conducted after taking her to the hospital. According to him, there was nobody except prosecutrix and accused Shiva at the time of arrest. He has admitted that no neighbor was made witness at the time of arrest of accused or at the time of recovery of prosecutrix. He has further deposed that the information regarding arrest of the accused was given to the mother of the accused by phone. He has denied the suggestion that she was taken for her medical examination forcibly without her consent. He has admitted that he St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 16 did not make any inquiries regarding birth certificate in municipal committee at the birth place of prosecutrix and has voluntarily explained that the same was not provided by the complainant. He has denied the suggestion that he had helped the complainant to fulfill his wish of getting his daughter forcibly married to someone else against her wish. He has further denied the suggestion that all the paper work was done while sitting in the police station or that the accused has been falsely implicated in the present case in connivance of complainant.
STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
(23) After completion of prosecution evidence the statement of the accused Shiva was recorded under Section 313 Cr.P.C. wherein he has admitted that he and the prosecutrix 'R' were having a love affair and wanted to marry each other but her father and family were averse to their relationship. According to the accused on 22.11.2011 she came to his house after leaving the house of her father and stayed with him for about one month till the time she was taken back by her father forcibly with the help of police on false allegations. He has further deposed that the prosecutrix informed him that her year of birth was 1993 and her father had given her year of birth in the school as 1994. However, he has not examined any witness in his defence.
FINDINGS:
(24) I have heard the arguments advanced before me by the Ld. Addl. St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 17
PP for the State and the Ld. Defence Counsel. I have also considered the testimonies of various witnesses examined by the prosecution. My findings are as under:
(25) At the very Outset I may observe that in so far as the identity of the accused Shiva is concerned, it is not disputed as he has been correctly identified in the court by the complainant (father of prosecutrix) as well as the prosecutrix 'R' as the person who was previously residing in their neighbourhood. Even otherwise the identity of the accused Shiva is not disputed.
(26) Secondly in so far as the age of the prosecutrix is concerned, the case of the prosecution is that on the date of incident the prosecutrix was a minor being less than 18 years of age since as per her school record her date of birth has been shown to be 24.3.1994. However, I may observe that the said school record of the prosecutrix 'R' has not been proved by the prosecution in accordance with law. Neither the admission register nor the pasting file has been produced in the court nor any witness from the school has been produced to prove the entries made in the school record. Only a certificate issued by the Principal, Government Girls Senior Secondary School, Azadpur, Delhi has been placed on record. The Investigating Officer has admitted that he did not make any inquiries regarding birth certificate in municipal committee at the birth place of prosecutrix and has voluntarily explained that the same was not provided by the complainant. The father of the prosecutrix who is the best witness to prove the age of prosecutrix has St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 18 stated in his crossexamination that the date of birth of prosecutrix 'R' mentioned in the CBSE Record is 23.3.1994 whereas in the school record it is 24.3.1994 but he is unable to explain the said discrepancy.
(27) However, assuming the date of birth of the prosecutrix 'R' mentioned in the CBSE Record as 23.3.1994, it is apparent that at the time of incident the prosecutrix 'R' was aged about Seventeen years and eight months and was at the verge of attaining the majority.
(28) Thirdly it is also borne out from the testimony of the prosecutrix that she was in love with the accused and had gone to his house of her own because her father was opposing her marriage with the accused. She has further explained that after her recovery, she had refused to go with her father as he were pressurizing her to marry some other man whereas she wanted to marry with the accused. She has further explained that she stayed with the accused Shiva in his house for about one month and there was no sexual assault upon her by the accused during this period. She has further explained that after her recovery, she refused to go with her father and even refused for internal medical examination. When the prosecutrix appeared before this court, from her deposition this court noticed that initially there was reluctance on the family of the prosecutrix to produce her and it is this conduct of the complainant which lends credence to the version of the defence. (29) Fourthly even in her statement under Section 164 Cr.PC (not disputed by the accused) the prosecutrix had told the Ld. MM at the first instance that she had gone to the accused voluntarily and stayed with him St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 19 with her consent. She had also explained that no physical relations were made during this period and it is for this reason she had refused for her internal examination.
(30) Lastly it has not been disputed that on 26.12.2011 the prosecutrix 'R' was recovered from the house of the accused Shiva, which aspect has been duly proved by the Investigating Officer SI Chetan and the complainant/ father of the prosecutrix. Even the accused has not disputed the factum of arrest but has denied having made any disclosure statement. (31) In so far as the aspect of consent of the prosecutrix is concerned, I may observe that in the case of S. Varadarajan Vs. State of Madras reported in AIR 1965 Supreme Court 942 (V 52 C 150) the Hon'ble Supreme Court had observed that:
"........ 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 not uneducated or unsophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking of herself and acting on her own than perhaps an illiterate girl hailing from a rural area......."
(32) In the present case the prosecutrix 'R' was Seventeen Years and Eight Months of age at the time of the incident and was at the verge of attaining majority. It has been established that she of her own will had gone to the house of accused Shiva and stayed at his house for about one month St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 20 and there are no allegations of sexual assault during this period. (33) From the evidence which has come on record the facts which now emerge confirm that both the prosecutrix aged about 17 years and 8 months and the accused aged around 21 years were in love and there being an opposition to their affair by the family of the accused, the prosecutrix 'R' decided to go to the house of accused Shiva wanting to get married which unfortunately did not happen. On the complaint of the father of the prosecutrix 'R' namely Anand Kumar the case was registered since the prosecutrix was below 18 years of age. The prosecutrix 'R' initially refused to go with her father and was sent to Nirmal Chaya but thereafter when she attained the age of 18 years she was set at large and permitted to go with her brother and grandfather.
(34) There was no exploitative situation on the part of the accused. Rather, the misuse and abuse of legal process if any was on behalf of the complainant i.e. father of the prosecutrix who came in the way of the marriage between his young daughter and the accused and in order to compel her to fall in line with his dictates and marry a person of his choice for which he got instituted these legal proceedings against the accused. Our Legal System is most unfair to the youngsters in love and it is ironical indeed that the Statutory Laws in our country is without any just exception and criminalize innocent love. A hardened criminal involved in serious crimes such as Rapes, ManSlaughtering, Dacoity etc. is treated at par with the one who is punished for falling in love with a woman at the verge of attaining St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 21 majority. This happens only because the existing Statutory Laws of our Country do not providing for any Window Period in case of elopement of youngsters (where the girl is a minor) where there is a non exploitative situation. Under the given circumstances, nobody stands to gain if the Court takes a strict hypertechnical view. Exceptions and allowances have to be made while considering the age of consent/ protection keeping in view the changing social attitudes and social sensibilities and the situation particularly in Rural India where early marriage is a norm and acceptable in diverse cultures and religions and particularly where the age gap between the youngsters are within the acceptable limits and no exploitative coercive situation is reflected.
(35) This being the background and the prosecution having failed to establish and prove the allegations against the accused and having failed to bring on record any evidence against him either ocular or circumstantial or medial or forensic or any other evidence to connect him conclusively to the commission of the offence, benefit of doubt is being given to the accused Shiva who is hereby acquitted of the charges under Section 363/366 Indian Penal Code. He is directed to be released if not required in any other case.
(36) File be consigned to Record Room. Announced in the open court (Dr. KAMINI LAU) Dated:18.12.2013 ASJII(NW)/ ROHINI St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 22 State Vs. Shiva FIR No. 294/2011 PS Begumpur 18.12.2013 Present: Addl. PP for the State.
Accused Shiva in JC with Ms. Neelam Singh DLSA Counsel.
Statement of the accused u/s. 313 Cr.P.C. is recorded. He does not wish to examine any witness in his defence. Heard arguments. Be listed for orders at 4:00 PM.
(Dr. Kamini Lau)
ASJII(NW)/ 18.12.2013
4:00 PM
Present: Addl. PP for the State.
Accused Shiva in JC with Ms. Neelam Singh DLSA Counsel.
Vide my separate detail order dictated and announced in the open court, the accused Shiva is acquitted of the charges under Section 363/366 IPC. He be released if not required in any other case.
File be consigned to Record Room.
(Dr. Kamini Lau) ASJII(NW)/ 18.12.2013 St. Vs. Shiva, FIR No. 294/11, PS Begumpur Page No. 23