Delhi District Court
State vs Gourav S/O Sh.Ashok Kumar on 17 April, 2013
In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 44/13
Unique ID No. : 02401R0019132013
State versus Gourav S/o Sh.Ashok Kumar
R/o H.No.B219, Sangam Park,
Pratap Bagh,
Delhi.
Case arising out of:
FIR No. : FIR No. : 63/12
Police Station : Civil Lines
Under Section : 363/366/376 IPC
Judgment pronounced on : 17.04.2013
JUDGMENT
The case in hand was registered on a complaint dated 30.04.2012 lodged by the prosecutrix 'R' (name with held in order to protect the identify of the complainant). She contended that she came to know the accused as he was friend of her sister's friend. About 15 days ago accused telephonically called her to the market from where they went to Pahari Hindu Road Hospital Park, where the accused allegedly raped her at a secluded spot. She also did not resist the same as the accused used to tell that he wants to marry her.
The complainant further alleged that on 28.04.2012 accused called her on her mobile phone and asked her to meet him at Sangam Park. On reaching there, the accused asked her to accompany him to Jaipur stating that they will get married there. She went to Jaipur by bus and they stayed at the house of Tauji of the accused, where also physical relations were established between them.
On the next day, father of the accused came to Jaipur and brought them back to Delhi and sent her to her house. She alleged before the police that the accused has raped her by giving her false promise of marriage and the case was accordingly registered on her complaint Ex.PW 2/A. During the investigation a certificate regarding date of birth of Prosecutrix was obtained from her school, as per which her date of birth stated to be 10.01.1997.
After completion of investigation, charge sheet was submitted before the court. Vide order dated 28.02.2013 above named accused was charged for offences punishable under Sections 363/366/376 IPC, he pleaded not guilty and claim trial when the charges were read over and explained to him.
Today the case was fixed for prosecution evidence. The duty office who registered the FIR was examined as PW 1.
The prosecutrix 'R' stepped into the witness box as PW2. She deposed that in the month of May or April 2012, she went to Bonta Park with the accused, to whom she had become friendly and physical relations were established between them with her consent. She also deposed that she did not object to the same as they wanted to marry each other.
PW2 also deposed that on 28.04.12 she voluntarily accompanied the accused to Jaipur as he had stated that they will get married there. They stayed at the house of Tauji of the accused, where also physical relations were established between them with her consent. On the next day, they were brought to Delhi by father of the accused. PW2 also deposed that she narrated the incident to her mother and her parents forced her to lodged a complaint against the accused. She deposed that the complaint Ex. PW 2/A was made by her under pressure of her parents and her presence of her mother who also signed the complaint at point B. The witness further deposed that in her statement U/s 164 Cr.P.C (Ex.PW2/B) she stated before the Ld.MM that the physical relations between her and accused established with her consent as they wanted to get married. PW2 also deposed that she has got married to accused on 17.12.2012 with the consent of their families and that she is pregnant and living happily with the accused.
The mother of the prosecutrix examined as PW3. She also deposed that the prosecutrix made the complaint to the police in her presence. PW3 also stated that her daughter was brought back by father of the accused, she informed her that she is in love with the accused and wanted to marry him and had gone to Jaipur with him voluntarily. PW3 also stated that her daughter was more than 16 yrs of age at the time of incident, though she was unable to recall her date of birth. She also stated that date of birth as recorded in the school records of 'R' as 10.01.1997 was stated by them without any documentary proof and deliberately her age was stated to be less for the purpose of admission.
Today, no other prosecution witness is present. On going through the deposition of PW 2 and PW 3 as aforesaid, I am of the opinion that no fruitful purpose would be served by examining the remaining witnesses cited by the prosecution the reasons may be enumerated as under:
(a) From the deposition of aforesaid prosecution witnesses the case of the prosecution that the prosecutrix 'R' was about 15½ yrs. old stands completely demolished. The mother of the prosecutrix has herself stated that at the time of incident prosecutrix was more than 16 yrs of age. Further no reliance can be placed on the school certificate relied upon by the prosecution to establish date of birth of prosecutrix as 10.01.1997 in the light of deposition of PW3 that the said date was stated without any documentary proof and merely for the purpose of admission it was deliberately stated to be less than her actual age.
(b) The charge of offence punishable U/s 363/366 IPC also does not stand proved in the light of testimony of PW2. It has been established on record that at the time of incident in question the prosecutrix was more than 16 yrs of age and had willingly accompanied the accused as she was in love with him and they wanted to marry each other. It may be relevant at this juncture to refer to the following landmark judgments of Hon'ble Superior Courts:
In S. Varadarajan vs State of Madras AIR 1965 SC 942 it was observed that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. But when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) from the house of the relative of the father where she is kept, herself telephones the Accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the Accused takes her to various places and ultimately to the SubRegistrar's Office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on thte part of the Accused but it is clear from the evidence that the insistence of marriage came from her side, the Accused by complying with her wishes can by no stretch of imagination be said to have "taken" her out of the keeping of her guardianship, that is, the father.
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 him.
There is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it cannot be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Sec. 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, 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.
The aforesaid observations of Hon'ble Supreme Court were also followed by Hon'ble High Court in case titled as Ravi Kumar Vs The State & Anr. 2005 IV AD (Cr.) DHC 132 where Hon'ble High Court observed that applying the ratio of the aforesaid judgment to the cases in hand, it would be seen that there was no taking or enticing away. The essential ingredients of the offence of kidnapping are missing in these cases. The girls having reached the age of discretion had of their own volition accompanied the men of their choice. Rather, it has come in evidence that the initiative came from them and they got married of their own accord and are desirous of living with their respective husbands.
(c) Lastly, in so far as the charge for offence U/s 376 IPC is concerned, it is apparent from the deposition of PW2 that the physical relation between her and accused were consensual and in these circumstances, the accused cannot be convicted for the said offence.
Moreover, it has also come on record that the prosecutrix and accused are now happily married, their marriage having been solemnized on 17.12.2012 with the consent of their respective families and the prosecutrix is also in family way. It is also matter of record that the mother of the prosecutrix has stood surety for the accused during trial. Hence, Prosecution Evidence is hereby closed.
Considering the above discussion and in the light of evidence of record, it is apparent that there is no incriminating evidence on record against the accused. Consequently, recording of his statement U/s 313 Cr.P.C is hereby dispensed with.
In the light of the aforesaid discussion and considering the evidence brought on record, the accused in my opinion cannot be convicted for the offences for which he was charged. Accordingly, the accused is hereby acquitted. File be consigned to Record Room. Announced in Open Court on 17th April, 2013 (Kaveri Baweja) ASJ Spl. FTC2 (Central) : Delhi