Delhi District Court
Fir No. 131/12; State vs . Vikas Kumar Page 1 Of 26 on 28 February, 2013
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 34/12
FIR No. 131/12
P.S. Jahangirpuri
U/S: 363/366 IPC
STATE
Versus
VIKAS KUMAR
s/o Sh. Gultain Rai
r/o village Bejha,
Distt. Muzaffarpur, Bihar
Date of Institution: 27072012
Date of arguments: 27022013
Date of judgement: 28022013
JUDGMENT
1. The case of the Prosecution, in brief, is that on 21052012, Smt. Satyawati got registered DD no. 26A in PS Jahangirpuri regarding missing of Prosecutrix "B" (name withheld), daughter of her elder daughter Santosh. Complainant Satyawati stated that on 21052012 at about 4 am, Prosecutrix "B" aged 14½ years had been enticed away by some unknown boy. On this FIR No. 131/12; State Vs. Vikas Kumar Page 1 of 26 information, FIR u/s 363 IPC was registered and investigation was handed over to SI Balwant Singh. During interrogation, it came to light that Prosecutrix "B" was enticed away by one Vikas Kumar who was resident of same jhuggis. SI Balwant Singh along with HC Netra Singh reached PS Sakra, village Bejha, Distt. Muzaffarpur, Bihar and accused Vikas Kumar and Prosecutrix "B" were produced there. Accused Vikas Kumar was arrested on 29052012 from PS Sakra, Muzaffarpur, Bihar. Three days Transit Remand was obtained from CJM, Muzaffarpur. Accused Vikas Kumar and Prosecutrix "B" were got medically examined from Muzaffarpur hospital. On 31052012, statement of Prosecutrix "B" was recorded u/s 164 Cr.P.C. by the Ld. MM, Rohini Courts, Delhi. After completion of investigation, chargesheet was filed in the court against the accused u/s 363/366 IPC.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 363/366 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to prove its case, Prosecution has examined 11 witnesses. Statement of accused was recorded u/s 313 Cr.P.C. therein he denied all the allegations made against him. Accused FIR No. 131/12; State Vs. Vikas Kumar Page 2 of 26 opted not to lead defence evidence.
4. I have heard Ld. Defence counsel and Ld. APP for State and have perused the entire records.
5. Ld. Defence counsel for accused argued that the Prosecutrix was not enticed away by the accused. The Prosecutrix was not minor at the time of incident and wrong date of birth has been stated by the Prosecutrix at the instance of her Nani and Mausi. The Mausi of Prosecutrix wanted to engage the Prosecutrix in the work and she used to beat her and due to this fear, she left her house. The Prosecutrix was more than 18 years and she with her consent went along with accused since the Prosecutrix was in love affair with the accused. The accused had not taken the Prosecutrix with the intention to perform marriage with her. There was no pressure upon the Prosecutrix by the accused for taking her along with him. The date of birth records and certificate of the Prosecutrix have been created on the false information given by Nani and Mausi of Prosecutrix. The police officers did not go to Bihar but all the documents were prepared while sitting in Delhi. The police has not fairly conducted the investigation. Even otherwise, no independent witness was joined during investigation. Further, there are contradictions in the testimonies of PWs. PW5 FIR No. 131/12; State Vs. Vikas Kumar Page 3 of 26 and PW7 are the relatives of the Prosecutrix, therefore, their testimony may not be trustworthy and reliable.
6. Ld. APP for State argued that the prosecutrix was minor at the time of incident and the accused enticed her away and took her to Bihar where he got married with the Prosecutrix. The age proof of the prosecutrix being minor have also been proved on record. The Ld. APP for State further argued that the accused cannot take benefit of minor contradictions. Therefore, the prosecution has proved the case beyond reasonable doubt by way of oral testimony of PWs coupled with documentary evidence. The Ld. APP for State, in support of his arguments, relied upon the judgements reported in the case of Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920 and Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1).
7. In view of the above arguments of the Ld. Defence counsel and the Ld. APP for the State, let us examine the evidence led in this case as to whether the accused had committed the offence as charged or whether he has been falsely implicated. PW6 is the Prosecutrix "B". She deposed that at the time of incident, th she was studying in 7 Standard at Govt. Prathmik Vidayalaya, Jahangir Puri, Delhi. On 21.05.2012, she left her house at around FIR No. 131/12; State Vs. Vikas Kumar Page 4 of 26 4:00 am without telling anybody. PW6 had called accused Vikas outside her house as all of her family members came to know regarding conversation with the accused on telephone. Accused came outside her house and took her to Anand Vihar ISBT in a TSR and from there he took PW6 to his house somewhere in Bihar. The mausi of PW6 namely Deepa came to know about her missing from the house and she started searching her. PW6 remained 45 days with the accused at his house in Bihar and thereafter local police took both of them in the concerned PS. Police team from Delhi accompanied by her mausi reached there and brought PW6 to Delhi. Thereafter, Prosecutrix "B" was produced in the court. Accused Vikas was taken away by the police. PW6 was sent to Nari Niketan. After about a week her mausi Deepa brought PW6 back to their house.
8. During crossexamination conducted by Ld. APP for State, PW6 denied the suggestion that she had stated to the police in her statement dt. 29.05.12 that accused Vikas r/o KBlock enticed her away from her house and took her to his village Behja. PW6 was confronted with portion A to A of statement marked PW6/A where it has been so recorded. PW6 admitted that accused was known to her prior to incident as he used to meet her outside her FIR No. 131/12; State Vs. Vikas Kumar Page 5 of 26 school. PW6 denied the suggestion that accused tease her. PW6 also admitted that she had told the police in her statement that when she asked accused where he was taking her, he replied that he was taking her to his village and he would marry her. PW6 denied the suggestion that she had stated to the police that accused Vikas took her to his village with the intention of marriage with her. PW6 was confronted with portion C to C where it has been so recorded. PW6 denied the suggestion that statement mark PW6/A was recorded by the police at her instance. PW6 admitted that when the local police of Bihar apprehended her, they also got her medically examined from the hospital and she was produced before the court at Bihar. PW6 also admitted that Ld. MM recorded her statement U/s 164 Cr.PC on 31.05.12 and carbon copy of same is PW6/B bearing her signatures at point A. PW6 stated that she had deposed that she knew accused Vikas for the last two years as she was having love affair with him. PW6 stated that she had told Ld. MM in her statement that accused Vikas as well as his mother advised her not to live in village with them as she was minor but she did not pay any attention to their advise. PW6 admitted that she had performed marriage in a temple with Vikas in the presence of his family members. PW6 further admitted that her mausi reached there with FIR No. 131/12; State Vs. Vikas Kumar Page 6 of 26 the police and brought her back. PW6 also stated that she had told in her statement to the Ld. MM that Vikas took her from her house on her asking and she wanted to live with him.
9. PW8 Dr. Mrs Krishna Singh, CMO, Sadar Hospital Muzaffarpur, Bihar deposed that on 29/05/12, he was working as Medical Officer/ Civil Assistant Surgeon at the above hospital. On that day, SI Balwant Singh of PS Jahangirpuri produced before him Prosecutrix "B" along with her Mausi namely Deepa for medical examination. After consent of Prosecutrix "B" and her Mausi Deepa she was medically examined. Her secondary sexual character found to be developed. Hymen was found old ruptured and admitted two fingers. No external and internal injuries were found on her body including her private parts during her examination. Vaginal swab and smear were taken and sent to Pathological department of the Sadar hospital Mazaffarpur regarding presence of spermatozoa. PW8 proved the medical examination report as Ex. PW8/A and pathological report as Ex. PW8/B. PW8 also identified the handwriting and signatures of Dr S. N. Chaudhary who examined Vikas, male 19 years on 29/05/2012 at about 11.15 am at Sadar Hospital Muzaffarpur. PW8 proved the medical papers as Ex. PW8/C in the handwriting and signatures of Dr. S. N. Chaudhary. FIR No. 131/12; State Vs. Vikas Kumar Page 7 of 26 PW9 Sh. Bhupinder Singh (DJS), M.M. Rohini Court Complex, Delhi recorded the statement of Prosecutrix "B" vide Ex. PW9/A u/s 164 Cr.P.C. on the application Ex. PW9/B moved by the IO and copy was supplied to IO vide Ex. PW9/C.
10. PW5 Smt. Satyawati deposed that on 21.05.12, her granddaughter i.e. Prosecutrix "B" aged 14½ years old, left her house at around 4:00 am without telling anybody. The daughter of PW5 namely Deepa who used to reside with PW5, was not at home as she had gone to attend some function of her "kinner" community. Prosecutrix "B" is daughter of PW5's elder daughter namely Santosh. PW5 called Deepa on phone and thereafter, she along with Deepa went to PS and lodged missing report regarding Prosecutrix "B". Police recorded FIR on her statement vide Ex. PW2/B. PW7 Deepa deposed that she is residing at house no. K623 along with her mother, sister Santosh, two nephews and one niece i.e. Prosecutrix "B". Prosecutrix "B" is daughter of her elder sister Santosh. PW7 had adopted Prosecutrix "B" when she was two months old. On 21.05.12, PW7 was away to Madangir due to Sammellan of Kinner Community. Her mother made a call to PW7 that Prosecutrix "B" was missing from the house. PW7 returned to her house and consulted all the family members. They approached FIR No. 131/12; State Vs. Vikas Kumar Page 8 of 26 the friend of Prosecutrix "B" and she told them that one boy who used to reside in Jhuggi of Kblock, Jahangir Puri used to meet Prosecutrix "B" outside the school. Thereafter, PW7 along with her mother went to the police and lodged the complaint to police. Thereafter, they searched Vikas in Kblock Jhuggi. The son Vikas' uncle met them and informed that Vikas used to reside in the said jhuggi but he was not available in his jhuggi at that time. Thereafter, they took the son of Vikas' uncle to the PS where he was interrogated by the police and it came to know that Vikas had took away Prosecutrix "B" to Bihar. Thereafter, maternal uncle of Vikas reached PS and they made a call in Bihar at the house of Vikas. Some relatives of accused Vikas produced Prosecutrix "B" as well as accused in PS Sakra. Thereafter, PW7 accompanied with Delhi police to PS Sakra. Police conducted some proceedings and Prosecutrix "B" was got medically examined and produced in the court and from there she was brought to Delhi and produced in the court and then sent to Nari Niketan. After about a week the custody of Prosecutrix "B" was given to PW7 by the police. PW7 was called once by the police in Nirmal Chaya. PW7 further deposed that accused Vikas (correctly identified) took her daughter to Bihar with the intention to marry with her after enticing from her house as told FIR No. 131/12; State Vs. Vikas Kumar Page 9 of 26 to her by her daughter.
11. PW1 Ms. Prabha Jain, Principal, Govt. Girls Sr. Secondary School, K Block, Jahangirpuri, Delhi proved the entry Sr. No. 10564 of admission register in the name of Prosecutrix "B" of the year 201112 of their school. The prosecutrix was admitted in th their school on 06.04.2011 in 6 standard and as per the school record, the date of birth of Prosecutrix "B" is 21.10.1997. PW1 further deposed that at the time of admission, the parents of th Prosecutrix "B" had submitted 5 class pass certificate issued by MCD School, KIBlock, Jahangir Puri, Delhi and also filled up form at the time of admission. As per both the aforesaid documents the date of birth of Prosecutrix "B" is 21.10.1997. PW1 proved the photocopy of the admission register, admission form and school th leaving certificate of 5 class issued by MCD as Ex. PW1/A (colly). PW1 also issued a certificate on the request of police regarding date of birth of the prosecutrix "B" as Ex.PW1/B. PW11 Sh. Rakesh Saxena, Sub Registrar, MCD, Civil Line, Rajpur Road, Delhi produced the original birth registration register maintained in their office on regular basis. As per our record, the girl Prosecutrix "B" whose parents name is Mrs. Santosh and Surender Pal, was born on 21.10.1997 and her birth was registered at the office vide FIR No. 131/12; State Vs. Vikas Kumar Page 10 of 26 registration no. 203 on 25.10.1997. Place of birth is 536, Mukimpura, Ghanta Ghar, Delhi110007. He proved the copy of the birth certificate already MarkPZ as Ex. PW11/A.
12. PW2 HC Shamsher Singh, Duty Officer proved DD no. 26A dated 21.05.2012 as Ex. PW2/A lodged by complainant Satyawati regarding missing of her granddaughter (dhevti) Prosecutrix "B". PW2 also proved the FIR as Ex. PW2/B. PW3 Ct. Vandana deposed that on 31.05.2012, she joined investigation with SI Balwant Singh. The police team along with Prosecutrix "B" reached at Rohini Court, where her statement U/s 164 Cr.P.C. was got recorded. After recording statement of Prosecutrix, she was sent at Nirmal Chaya, Tilak Nagar, New Delhi. PW4 HC Netar Singh deposed that on 29.05.2012, he joined investigation with SI Balwant Singh. The Police team along with mother of the prosecutrix had gone to Village Bhejapur, Mujjafarpur, Bihar in search of accused Vikas Kumar as well as prosecutrix "B". The local police produced accused Vikas Kumar (correctly identified) in PS Shakra and he was arrested vide memo Ex.PW4/A and his personal search memo Ex.PW4/B was also prepared. The prosecutrix was also brought from the said village in the company of her mother. Accused as well as the prosecutrix, after medical examination, were produced before FIR No. 131/12; State Vs. Vikas Kumar Page 11 of 26 the concerned court at Bihar from where they were taken on transit remand. Thereafter, the accused and the prosecutrix were brought to Delhi. Statement of PW4 was recorded by the IO.
13. PW10 SI Balwant Singh deposed that on 21.05.2012, one Satyawati w/o Prem Pal got recorded one missing report regarding missing of her granddaughter Prosecutrix "B" aged about 14½ years vide DD No. 26A Ex. PW2/A. On the basis of same, FIR Ex. PW2/B was recorded and the investigation was marked to PW10. PW10 sent all India messages to all SSPs of India and all SHOs of Delhi. PW10 proved the carbon copy of the wireless message as Ex. PW10/A. During course of investigation, PW10 came to know that the victim girl was taken to Distt. Muzaffarpur, Bihar by the accused. PW10 along with HC Netra Pal obtained permission from the senior officers for going out of station. On 29.05.2012, they reached P.S. Shakra, Distt. Muzaffarpur, Bihar along with the Mausi namely Deepa of the victim girl. Accused Vikas (correctly identified) and Prosecutrix "B" were produced in the PS Shakra and both were identified by Deepa. PW10 inquired the victim and accused and recorded statement of Prosecutrix "B" correctly whatever she deposed. After interrogation, accused Vikas was arrested and his personal search was conducted vide memos FIR No. 131/12; State Vs. Vikas Kumar Page 12 of 26 already Ex.PW4/A and Ex.PW4/B respectively. PW10 took the Prosecutrix "B" and accused before the doctor at Sadar Hospital, Muzaffarpur, Bihar. Lady Dr. Krishna Singh examined the Prosecutrix "B" vide Ex. PW8/A. Dr. S.N. Singh examined the accused and declared him fit to journey vide Ex.PW8/C. Accused as well as victim produced before Ld. CJM, Mujaffarpur three days transit custody remand along with transit warrant of accused Vikas were obtained vide order of Ld. CJM dated 29.05.2012 as Ex. PW10/B and transit remand as Ex. PW10/C. PW10 proved the application given to the CMO for medical examination as Ex. PW10/D.
14. PW10 further deposed that on 31.05.2012, they reached back Delhi in the morning and produced the Prosecutrix "B" before Sh. Sunil Kumar, M.M. for recording her statement u/s 164 Cr.P.C vide written request Ex. PW9/B and Sh. Sh. Bhupinder Singh, MM recorded the statement of Prosecutrix "B". Mausi of Prosecutrix namely Deepa was also with them in the court at that time. PW10 moved application Ex. PW9/C for getting the copy of the statement u/s 164 Cr.P.C. of the victim which was allowed and statement of victim u/s 164 Cr.P.C. was recorded vide Ex. PW9/A. The accused was produced before Ld. M.M. after medical and he was remanded FIR No. 131/12; State Vs. Vikas Kumar Page 13 of 26 to JC and the victim girl was ordered to be sent to Nirmal Chaya. PW10 recorded statement of PWs. PW10 obtained the copies of admission register of the school where the Prosecutrix "B" was studying along with the copy of School Leaving Certificate MarkPY of her previous school. The copy of birth certificate issued by MCD is MarkPX and the birth certificate issued by the Principal, Govt. Girls Sr. Secondary School, KBlock, Jahangirpuri, Delhi is Ex. PW1/B. The Copy of the birth certificate issued by GNCT, Delhi is marked as MarkPZ. W/Ct. Vandana was present with PW10 in the Rohini Court Complex to assist him in the process of recording the statement u/s 164 Cr.P.C. of the victim. As per direction of Ld. Court, the inquiry regarding the determination of juvenility of accused Vikas was conducted and ossification test of the accused was conducted by the doctor at BJRM Hospital. The doctor reported the age of the accused between 20 to 22 years vide report dated 24.08.2012 as Ex. PW10/E.
15. It is evident from the crossexamination conducted by Ld. APP for State that PW6 admitted that she had told the police in her statement that when she asked accused where he was taking her, he replied that he was taking her to his village and he would marry her. PW6 admitted that when the local police of Bihar FIR No. 131/12; State Vs. Vikas Kumar Page 14 of 26 apprehended her, they also got her medically examined from the hospital and she was produced before the court at Bihar. PW6 also admitted that Ld. MM recorded her statement U/s 164 Cr.PC on 31.05.12 and carbon copy of same is PW6/B bearing her signatures at point A. PW6 admitted that she had performed marriage in a temple with Vikas in the presence of his family members. PW6 further admitted that her mausi reached there with the police and brought her back.
16. It is further evident from the crossexamination by Ld. counsel for accused that PW6 admitted that temple of Lord Shiva was situated in the village. PW6 had attended several marriage prior to incident and she shows about the rituals of marriage. PW6 further deposed that there were 1015 persons in the temple at the time of marriage. PW6 further deposed that her marriage was performed with all the rituals and photographs were also taken of her marriage. PW6 deposed that her date of birth is 21101997 and it was got mentioned in the school record by her nani. PW6 th was studying in Section B of 7 class. PW6 denied the suggestion that her family members used to beat her. PW6 also stated that train to Bihar was overcrowded. PW6 further deposed that she had never failed in her examination. PW6 deposed that Deepa is FIR No. 131/12; State Vs. Vikas Kumar Page 15 of 26 her real Mausi. PW6 denied the suggestion that she was more than 18 years when she left her house. PW6 further denied the suggestion that she gave wrong date of birth in court at the instance of her Nani and Mausi. PW6 also denied the suggestion that she never visited school after her admission. PW6 further denied the suggestion that Deepa wanted to involve PW6 in her work. PW6 also denied the suggestion that due to this fear, she left her house.
17. It has been argued by the Ld. counsel for the accused that there are improvements in the testimony of prosecutrix 'B' and on the basis of the improvements, it shall be unsafe to rely on the testimony of the prosecutrix 'B'. In this regard, I am of the considered view that minor contradictions or insignificant discrepancies in the testimony of the prosecutrix 'B' should not be a ground for throwing out an otherwise reliable prosecution case. In so far as certain inconsistencies or minor contradictions in the narration or embellishment are concerned, the Apex Court in the case of Randhir Basu Vs. State of West Bengal AIR 2000 SC 908 held that some inconsistencies of a minor nature in the evidence of the witness can be regarded as natural giving more details while disposing before the court are not to be treated as improvements by such a nature as would create any doubt regarding the FIR No. 131/12; State Vs. Vikas Kumar Page 16 of 26 trustworthiness of a witness. Minor discrepancies are possible even in the version of truthful witnesses and such minor discrepancies only add to the truthfulness of their evidence. The main thing to be seen is whether the inconsistencies go to the root of the matter or pertain to insignificant aspect thereof. The discrepancies which do not go to the root of the matter and shake the basic version of the witness, cannot be annexed with undue importance. More so, when all the important probability factors echoes in favour of the version narrated by the witness. In the case of Jamir Ahmad Vs. State 1996 Crl. L. J. 2354, the Hon'ble Court held that embellishment, exaggeration, contradictions and inconsistencies are bound to creep in with the passage of time. If witnesses are not tutored, they would come out with a natural and spontaneous version of their own. Similarly, in the case of Kanwar Singh Vs. State of Rajasthan 1996, Crl. L. J. 4056, it has been held that there is bound to occur contradictions and inconsistencies in the statement of witnesses with the passage of time or for any other reasonable cause, but on account of this, by itself, benefit of doubt cannot be extended to the accused. In the case of Markandaya Naik Vs. State 1993 Crl. L. J. 3328 (Orissa) it has been held that there is tendency amongst the witnesses in our country to back up a good case by false or FIR No. 131/12; State Vs. Vikas Kumar Page 17 of 26 exaggerated version. The witnesses also add embroidery to Prosecution version, perhaps for the fear of being disbelieved. But that is no ground to throw the case over board, if truth in the main. If there is a ring of truth, the case should not be rejected. In the present case, the discrepancies pointed out by the Ld. defence counsel are not major discrepancies or contradictions which may affect the core of testimony of the prosecutrix 'B' which being that accused had kidnapped her with the intent to marry her.
18. During crossexamination, PW5 deposed that she along with her daughters namely, Deepa, Santosh and Prosecutrix "B"
th used to reside together and Prosecutrix "B" was studying in 7 Standard but she does not know the name of her school. When PW5 woke up in the early morning, she found Prosecutrix "B" missing from the house and main door of the house was found in opening condition. PW5 further deposed that Deepa adopted Prosecutrix "B" as her daughter to bear the expenses of brought up and marriage. PW5 further deposed that house in question is owned by her. During crossexamination, PW7 deposed that Prosecutrix "B" has two younger brothers namely Kamal and Manish. Proseuctrix "B" was born in the year 1997 whereas Manish in 1999 and Kamal in the year 2001. PW7 further deposed that she FIR No. 131/12; State Vs. Vikas Kumar Page 18 of 26 along with SI Balwan Singh, HC Netr Singh had gone to Bihar in a train. PW7 denied the suggestion that age of Prosecutrix "B" was more that 18 years. PW7 further denied that Vikas did not take Prosecutrix "B" with intention to perform marry with her. Let us examine whether the above testimony of PW5 and PW7 who are the Nani and Mausi of the Prosecutrix can be considered as trustworthy. In this context, I would place a reliance upon the judgements reported in the case of Sucha Singh Vs. State of Punjab, AIR 2003 SC 3617 (1), it has been held that relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. It cannot be said that the witness being a close relative and consequently being a partisan witness should not be relied upon. In the present case, in my view, testimonies of PW5 and PW7 cannot be discarded merely because they are the relatives of the Prosecutrix.
19. Let us further examine whether the prosecutrix "B" was minor at the time of incident. In order to constitute an offence punishable under Section 363 IPC, there has to be taking or enticing of a minor from the lawful guardianship of her parents/guardian. In a case of offence of kidnapping, the prime question for consideration FIR No. 131/12; State Vs. Vikas Kumar Page 19 of 26 always remains the age of prosecutrix. The age is most relevant because the age of the Prosecutrix is a vital factor to find out if she had the capacity to give consent to go with the accused. In the case of Pawan Kumar & Anr Vs. State & Ors WP (Crl.) 905/2009 decided on 15.02.2010 our own High Court held that if the minor, of her own, abandons the guardianship of her parents and joins a boy, without any role having been played by the boy in her abandoning the guardianship of her parents and without her having been subjected to any kind of pressure, inducement, etc. and without any offer or promise from the accused, no offence punishable under Section 363 IPC will be made out when the girl is aged more than 16 years and is mature enough to understand what she is doing. However, in the present case, it has been found that the age of the prosecutrix was less than even 15 years. At that stage of age, the girl is not mature enough to understand what she is doing. Similarly, in the case of Ashwani Kumar Vs. State of Haryana 2003 (3) Criminal Court Cases 539 (P&H), the Hon'ble Court held that the protective custody of father does not come to an end even if minor himself or herself abandons the custody of her parents. It was held that for proving kidnapping or taking away from the lawful guardianship, the age is material but consent is not material. If FIR No. 131/12; State Vs. Vikas Kumar Page 20 of 26 anyone takes away or entices any minor, then the offence is made out. In the present case, the Prosecutrix "B" stated in her testimony before the court that her date of birth is 21101997. PW1, Principal of the school of Prosecutrix "B" also proved the school record which reveals the date of birth of Prosecutrix as 21101997. The copy of the admission register, admission form, and school leaving certificate also proved by PW1 as Ex. PW1/A collectively. PW11, SubRegistrar, MCD, Delhi also proved copy of the birth certificate issued by SubRegistrar, GNCT, Delhi which also reveals date of birth of Prosecutrix as 21101997. During crossexamination, PW1 denied the suggestion that the school leaving certificate furnished by the parents of Prosecutrix "B" with their school was forged and fabricated. In his crossexamination, PW11 deposed that entry regarding date of birth was recorded as per information supplied by the parents and the child was delivered at the house and it was attended by midwife (daii). Therefore, it has been proved on record by the aforesaid documentary evidence that the age of the Prosecutrix "B" was 14 years and 7 months at the time of incident.
20. During crossexamination, PW2 deposed that the complainant came to the police station to lodge the complaint herself only. No complaint was made at 100 number (PCR) in the FIR No. 131/12; State Vs. Vikas Kumar Page 21 of 26 present case. During crossexamination, PW4 deposed that accused as well as prosecutrix were already sitting in the PS when they reached there. PW4 further deposed that they went to Bihar by Train. PW4 denied the suggestion that he did not accompany with the investigation officer. During crossexamination, PW10 deposed that accused Vikas and victim met him in the police station Shakra itself when they visited there. PW10 deposed that he had not visited the house where the accused and victim resided together. PW10 further deposed that he did not record the statement of the persons residing in the neighbourhood where the accused and victim resided together. PW10 did not meet either parents or siblings of the accused at Muzaffarpur, Bihar. PW10 did not visit any temple nor he made any inquiry from any priest. PW10 further deposed that he did not find any photograph regarding the marriage of the accused with the victim. PW10 deposed that they had gone to Bihar by train and returned also by train. PW10 denied the suggestion that he had not conducted the investigation properly or in fair manner. PW10 also denied that accused has been falsely implicated in this case at the instance of Mausi of the victim and her maternal grandmother.
21. In view of the above testimony of police officials, the Ld. defence counsel argued that the police has not done the FIR No. 131/12; State Vs. Vikas Kumar Page 22 of 26 investigation fairly and the investigation is defective. Whereas, Ld. APP for State argued that if there is a defective investigation, the accused cannot get the benefit of it. It is pertinent to mention here that even if the investigation is defective or faulty, the accused cannot be acquitted solely on account of defective or faulty investigation. In this context, a reliance is placed upon the judgement reported as State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety. There is no principle of law that without corroboration by independent witnesses, testimonies of police officials cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as to the other person. Thus, it would not be a proper judicial approach to distrust and suspect the testimonies of police officials without good grounds. The statements made by the police officials as witnesses should be given same weight as statements made by other witnesses. In taking this view, I am supported by the judgements of Karamjit Singh Vs. State (Delhi Administration), AIR 2003 SC 1311 and Ritesh Kumar Vs. State of Goa, 2006 Cri.L.J. (NOC) 61 (Bom).
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22. The Ld. defence counsel argued that no public person was joined in the investigation, therefore, in the absence of public witnesses during investigation, the investigation conducted by the police cannot be believed as trustworthy. Whereas, the Ld. APP for the State argued that generally public persons do not come forward to join investigation in such criminal cases. I am of the view that as far as public witnesses joining the investigation are concerned, the public persons are reluctant to become witnesses of criminal trial. Therefore, law is not that testimony of police officers apart from the eyewitness is absolutely untrustworthy or that it can never be acted upon. It has been held in a catena of judgements of the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because public witnesses are not joined in a case, the Prosecution case cannot be thrown out. In such circumstances, no benefit can be given to the accused for nonjoining of independent public witnesses. In this context, a reliance can be had upon the judgements reported as State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC 194.
23. The court has the power to examine the accused u/s 313 Cr.P.C. In Raman Saikia Vs. State of Assam (1997) 2 Crimes 555 FIR No. 131/12; State Vs. Vikas Kumar Page 24 of 26 (Gau.), it was held that section 313 is an important section and salutary provision which should not be slurred over. In Pudhu Raja & Anr. Vs. State, Rep. by Inspector of Police, 2012 [4] JCC 2751, it was held that it is obligatory on the part of the accused while being examined u/s 313 Cr.P.C. to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence, in order to decide, as to whether or not, the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (The Transport Commissioner, AP, Hyderabad & Anr. Vs. S. Sardar Ali & Ors, AIR 1983 SC 1225; State of Maharashtra Vs. Suresh, 2000 (1) JCC (SC) 93: (2000) 1 SCC 471; and Musheer Khan Vs. State of Madhya Pradesh, 2010 (3) JCC 1648: (2010) 2 SCC 748). In the present case, the accused, in his statement u/s 313 Cr.P.C., has merely denied all the incriminating evidence. Whereas, the Prosecution has satisfactorily proved the case of kidnapping by the accused with intent to marry FIR No. 131/12; State Vs. Vikas Kumar Page 25 of 26 her.
24. In view of my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against accused beyond reasonable doubt. I, therefore, hold the accused Vikas Kumar guilty and convict him u/s 363/366 IPC.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 28022013 FIR No. 131/12; State Vs. Vikas Kumar Page 26 of 26