Delhi District Court
Fir No. 216/13 : State vs Suraj : Ps Begumpur : Dod: 06.05.2015 on 6 May, 2015
FIR No. 216/13 : State V/s Suraj : PS Begumpur : DOD: 06.05.2015
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE:
(NORTHWEST)01: ROHINI DISTRICT COURTS: DELHI
(Sessions Case No. 30/15)
Unique ID case No. 02404R0069692015
State Vs. Suraj
FIR No. : 216/13
U/s : 363/366/376 IPC & 6 POCSO Act
P.S. : Begumpur
State Vs. Suraj
S/o Sh. Satya Prakash
R/o Village Manjhana,
Distt. Farrukhabad, PS Nawabganj,
Uttar Pradesh
Date of institution of case 20.02.2015
Date of arguments : 06.05.2015
Date of pronouncement of judgment : 06.05.2015
J U D G M E N T:
Facts of the case
1. The facts of the case as born out from the record are that on 08.07.2013, at about 1.00 pm, the child victim B (hereinafter referred to as 'child victim') aged about 17 years got missing from her house. Her father Sh. Page 1 of 12 FIR No. 216/13 : State V/s Suraj : PS Begumpur : DOD: 06.05.2015 Sohan Lal approached the police station Begum Pur on 09.07.2013 at about 6.35 pm and reported the matter about missing of his daughter. At that time, he expressed suspicion upon the accused Suraj, having taken away the child victim. The aforesaid information was reduced into writing as DD no. 33A. On the statement of Sh. Sohan Lal, FIR in the present case was registered u/s 363 IPC and the investigation in the matter was handed over to SI Virender. Thereafter, he got flashed information about the child victim at WT and also got the matter published in the Newspaper. SI Virender made efforts to search the child victim, but no clue was found. Thereafter, on 14.11.2014, one Ramesh produced the child victim, her four month old daughter and accused Suraj in PS Begum Pur and investigation of the present case was marked to W/SI Manju Yadav. SI Manju Yadav made inquires from child victim and recorded her statement u/s 161 Cr.P.C. Child victim and her daughter were got medically examined at SGM Hospital and exhibits supplied by the doctors were seized. She also collected the documents with regard to the date of birth of the child victim and as the victim child was aged about 16 years, accused was arrested in the present case. She also got the statement of child victim recorded u/s 164 Cr.P.C. Child victim was produced before CWC and as per the directions of CWC, ossification test of the child victim was conducted, where, her age was opined between 17 to 18 years. Exhibits were sent to the FSL. Statements of the witnesses were recorded and after completion of the investigation, she filed the charge sheet in the matter. Page 2 of 12 FIR No. 216/13 : State V/s Suraj : PS Begumpur : DOD: 06.05.2015 Court proceedings
2. After filing of charge sheet, copies of documents were supplied to the accused and thereafter, arguments on the point of charge were heard and on 25.03.2015, charges u/s 363/366 IPC and 5 (l) of Prevention of Children from Sexual Offences Act, 2012, (hereinafter referred to as "POCSO Act"), punishable u/s 6 of POCSO Act, alternatively u/s 376 (2) (n) IPC were framed against the accused, to which, he pleaded not guilty and claimed trial.
3. In order to bring home the guilt of the accused, the prosecution examined as many as six witnesses, whereafter, the P.E in the matter was closed and statement of accused u/s 313 Cr.P.C was recorded, wherein, he claimed himself to be innocent and having been falsely implicated in the case as father of prosecutrix earlier were against their marriage, but the prosecutrix wanted to marry him and due to this reason, her father lodged a false complaint against him. He further stated that at the time of his marriage with prosecutrix, the prosecutrix was major and presently, he is having a daughter of eight months out of this wedlock and they are living happily as a family. The accused, however, did not lead any evidence in his defence.
Evidence recorded in the matter
4. I have heard arguments advanced at Bar by the learned Addl. PP and the learned legal aid counsel Ms. Urmila Yadav and perused the entire Page 3 of 12 FIR No. 216/13 : State V/s Suraj : PS Begumpur : DOD: 06.05.2015 material on record. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter.
5. PW1, Sh. Mohinder Singh Yadav, the Lab Assistant, from Govt. Girls Senior Secondary School, Begumpur, Delhi, has produced on record the documents with regard to the date of birth of child victim, maintained by the school in due course, inter alia stating the date of birth of child victim to be 01.04.1998. He has proved the relevant documents as Ex. PW1/A to Ex. PW1/D. He further stated that child victim left the school on 13.08.2012 while studying in Class 9th.
6. PW2, child victim B, in her evidence has claimed herself to be aged about 20 years. She is presently blessed with a daughter aged about 8 months from the accused. She has deposed in her evidence that : xxxxx "Mein apni marzi se 08.07.2013 ko apne ghar se bina kisi ko bataye chali gayi thi. Mein accused Suraj se pyar karti thi aur karti hu aur mere gharwali uske khilaaf the. 02.08.2013 ko meine aur Suraj ne District Eta, UP mein court marriage kar li thi. Uske papers meine police ko de diye the. Page 4 of 12 FIR No. 216/13 : State V/s Suraj : PS Begumpur : DOD: 06.05.2015 (While stating so, the witness identified her signatures on Agreement of Marriage Ex. PW2/A between accused and the witness, dated 02.08.2013 and also admitted her joint photograph with accused on the same.) Shaadi ke time mein 18 saal se upar thi. Mere father ne report mein meri umar 18 saal se choti likhwai thi, wo galat hai. Mere paas ab 08 mahine ki lakdi hai. Mein apne pati k saath bahut khush hu aur mujhe iss baat ki koi paresani nahi hai.
Police ne mujhe aur mere pati ko pakad liya tha aur police ne mera medical SGM Hospital mein karaya tha. Meri beti ka bhi medical hua tha. Meine ek Judge Sahab ko bhi ye saari bate batai thi aur unhone mere bayan likhe the. (while stating so, she identified her signatures on her statement Ex.
PW2/B recorded U/s 164 Cr.P.C) Shaadi ke baad mein apne pati/accused ke saath Himachal Pradesh mein kiraye ke makaan par rehti thi. Meine police ko bhi apne bayan mein ye sab batya tha jo Judge Sahab ko bataya tha. Mein Suraj se apni marzi se shaadi ki hai aur shaadi ke Page 5 of 12 FIR No. 216/13 : State V/s Suraj : PS Begumpur : DOD: 06.05.2015 baad hi uss se sharirik sambadh banaye the. Mere pati Suraj aaj court mein present hai."
xxx In reply to a leading question put by learned Addl. PP, this witness denied that in the month of July 2013, she was aged 15 years and she disclosed her age as 20 years in order to save accused Suraj.
During crossexamination by learned legal aid counsel, the witness termed it correct that her father mentioned her age in the school, 3 years lower side.
7. PW3, HC Kalyan, is a formal witness, who was lying posted as duty officer in PS Begum Pur at the relevant time and he has proved the DD entry No. 33A as Ex. PW3/A, computerized copy of the FIR as Ex. PW3/B and certificate u/s 65 B Evidence Act as Ex. PW3/C.
8. PW4, HC Prahlad Singh, is again a formal witness, who was lying posted as MHCM in police station Begum Pur at the relevant time and he has proved the relevant entires of register no. 19 and 21 maintained in the police Station.
9. PW5, W/SI Manju, is the Investigating officer of the case. She deposed that on 14.11.2014, further investigation of present case was Page 6 of 12 FIR No. 216/13 : State V/s Suraj : PS Begumpur : DOD: 06.05.2015 entrusted to her and on that day, brotherinlaw of accused Suraj had already brought accused Suraj, child victim and their small child at the Police Station and she recorded the statement of the victim child B. She further deposed about medical examination of the child victim, accused and their small baby, vide MLCs Ex. PX, PY and PZ and about seizure of their exhibits vide seizure memo Ex.PW5/A, Ex. PW5/B and Ex. PW5/B1. The witness further deposed about arrest and personal search of accused vide memos Ex.PW5/C and Ex.PW5/D, respectively and also proved the disclosure statement as Ex.PW5/E, made by the accused. She also deposed about getting recorded the statement of victim child u/s 164 Cr.P.C vide her application Ex.PW5/F and about obtaining the copy thereof, vide her application Ex. PW5/G. She further deposed about producing of the child victim before CWC Avantika, Sector1, Rohini, about getting the age determination test of victim conducted and proved the ossification test report as Ex. PW5/J. She further deposed that after completion of the investigation, she filed the charge sheet in the court.
During crossexamination by learned legal aid counsel, the witness termed it correct that no MCD Birth Certificate of victim child was given by the parents of the victim child and that she did not get the age of the victim verified either by way of recording the statement of his parents in this regard or making some local enquiry.
10. PW6, Dr. Shashi Kant Prabhat, identified the signatures of Dr. Nishi Page 7 of 12 FIR No. 216/13 : State V/s Suraj : PS Begumpur : DOD: 06.05.2015 Gupta, Chairperson of the Medical Board, on the ossification test report Ex. Pw5/J of child victim and deposed that as per the opinion given by Dr. Nishi Gupta, the age of the child victim was found to be between 17 - 18 years.
This is all as far as the prosecution evidence in the matter is concerned.
11. In his statement recorded u/s 313 Cr.P.C, the accused has claimed false implication in the matter. He however, has admitted having married the child victim and having fathered a child in this wedlock. He has categorically stated that the child victim was major at the time of marriage and he had neither taken her away nor enticed her in any manner, for the marriage.
12. The learned Addl. PP has very vehemently argued that even if, the child victim has not supported the case of prosecution, considering her age as borne out from documents Ex. PW1/A to Ex. PW1/D, her consent if any, was immaterial and the accused is guilty of committing the offences for which, he stands charged in the matter.
13. Per contra, the learned legal aid counsel has disputed the age of the child victim as mentioned in documents Ex. PW1/A to Ex. PW1/D, on the ground that the parents of the child victim had not produced any certificate issued by the Municipal Corporation or any other statutory authority with regard to the date of birth of the child victim. She has very categorically referred to the document Ex. PW5/J i.e. ossification test report of the child Page 8 of 12 FIR No. 216/13 : State V/s Suraj : PS Begumpur : DOD: 06.05.2015 victim, wherein her age was opined to be between 1718 years. Further, learned legal aid counsel has made reference to the document Ex. PW5/H, wherein it was clearly mentioned that "there is a confusion regarding her age. According to her father as stated in the FIR, her date of birth is 01.04.1996, but according to school record,her date of birth is 01.04.1998" and thereby meaning, that at the time of incident, she was around 17 years of age and had presumably attained sufficient maturity to decide about her future.
14. It is apparent from record that no certificate of birth of the child victim, is on record. The entries of the date of birth got recorded in the school record of child victim were as per the whims and fancies of her parents. In the case of Birdi Mal Singhavi vs. Anand Purohit, 1988 Supp. SCC 601, it has been held that no evidentiary value can be given to Date of Birth entry in absence of material on which entry is made.
Further, at the time of lodging the missing report of child victim, her father mentioned her date of birth as 01.04.1996, but in the school record produced by PW1 Sh. Mohinder Singh, her date of birth was found mentioned as 01.04.1998. In the ossification test report Ex. PW5/J, age of the child victim was mentioned between 1718 years as on the date of her examination i.e. 25.11.2014. The child victim during her crossexamination termed it correct that at the time of her admission in the school, her father had mentioned her age, three years lower side of the actual age. All these facts create a doubt about the veracity of the date of birth of the child victim. Page 9 of 12 FIR No. 216/13 : State V/s Suraj : PS Begumpur : DOD: 06.05.2015
15. A perusal of the entire evidence recorded in the matter, further reveals that the accused had not done any overt act in either taking away or enticing the child victim from the lawful guardianship of her parents.
16. In this regard, it would relevant to refer to the case titled as " S. Varadarajan Vs. State of Madras (reported as AIR 1965 SC 942)", wherein while distinguishing between " taking" and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India 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."
17. It has also been held in para 8 of judgment titled as Bunty vs. State (G.N.C.T.) of Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011 by the Hon'ble Delhi High Court that : 18. Page 10 of 12 FIR No. 216/13 : State V/s Suraj : PS Begumpur : DOD: 06.05.2015 "8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had travelled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...."
18. In the present case also, the element of 'taking away' or 'enticement' is found to be lacking. In view of the material on record, it appears that prosecutrix was willing and consenting party and it seems that everything had happened with her sweet will. In these circumstances, the factum of kidnapping of prosecutrix does not stand proved. If the law laid down in the aforesaid authorities is applied to the facts of the present case, then it would be absolutely clear that the accused is not on the wrong side of law in the matter. Even otherwise, the accused and the child victim are themselves parents of a female child.
19. In view of the above discussions, it is hereby held that the prosecution has failed to establish the charges against the accused. Accused stands acquitted.
Page 11 of 12 FIR No. 216/13 : State V/s Suraj : PS Begumpur : DOD: 06.05.2015
20. File be consigned to Record Room.
(Announced in the open ) (Vinod Yadav)
(Court on 06.05.2015) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
Page 12 of 12