Delhi District Court
8 vs . on 15 July, 2016
1
IN THE COURT OF SHRI PAWAN KUMAR MATTO,
ADDITIONAL SESSIONS JUDGE01/WEST: DELHI
Unique Case I.D. No. 57172/2016
SC No.151/2015
FIR No.307/2011
U/s 363/366 IPC
PS Nihal Vihar
The State
(Govt. of NCT of Delhi)
Vs.
Mittu Singh
S/o Sher Singh
R/o 189, Chander Vihar,
Shiv Vihar, Nilothi Extn.
Delhi. ... Accused
Date of Institution : 24.08.2015
Date of arguments : 15.07.2016
Date of judgment : 15.07.2016
JUDGMENT:
1 Brief facts of the case of the prosecution are that FIR no.307/2011 u/s 363 of IPC has been registered on the statement of 'Sh.B.S.' (presumed name of the father of the prosecutrix) which is Ex.PW2/A, wherein, it is alleged that on dated 17.11.2011 at about 2.00 pm, his daughter i.e. the prosecutrix aged about 15 years, height 5 feet, complexion fair, built normal, face round, who was called upon by a girl Geeta, who is living in his neighbour and thereafter, the prosecutrix did not return to her house and the complainant believed that Mittu (accused) i.e. brother of the Geeta has SC No.151/15 FIR no. 307/11 PS Nihal Vihar State Vs. Mithu Singh Page no. 1 of 10 2 induced away to the prosecutrix and prayed for taking strict legal action against accused Mittu Singh. On the recovery of the prosecutrix, the statement of the prosecutrix was recorded U/S 164 of Cr.P.C by the Ld. Metropolitan Magistrate, which is Ex.PW1/A, and she has alleged therein that she had left her house because her family members were desirous to sell her. As one Gajraj Singh had advised to her parents, so, she has admitted that on dated 16.11.2011, she went with the accused Mittu Singh, as she loves him and she knew to this accused for the last one and half years. When, she told about the accused Mittu Singh to her family's members, she was beaten by them and about one or two months prior to this incident of registration of the FIR, the BUA of this accused had come to her house and she had proposed marriage of the accused with the prosecutrix, but family's members of the prosecutrix refused for such relationship and ousted to the Bua of the accused from their house and the family's members of the prosecutrix had engaged to the prosecutrix somewhere else and she has also stated that she has solemnized marriage in Arya Samaj Mandir with accused and she called to the accused and the accused had come to take her at her house, and she has voluntarily married with the accused.
2 The prosecutrix was medically examined, but she refused for her internal medical examination. On completion of the investigation, the charge sheet was filed by the IO u/s 363/366 of IPC against the accused and on finding the primafacie case, this court had framed the charges u/s 363/366 of IPC against the accused and the accused was put on trial.
3 In order to prove its case, the prosecution has examined the prosecutrix 'R' (presumed name of the prosecutrix) as PW1 and during her examination in chief, she SC No.151/15 FIR no. 307/11 PS Nihal Vihar State Vs. Mithu Singh Page no. 2 of 10 3 has denied that she was taken by the accused on the pretext of roaming or that the accused had solemnized married with her in the deceitful manner. She has deposed that it is the prosecutrix who had forced to the accused to marry with her and this witness was declared hostile and Ld. APP for State has sought permission to cross examine this witness. Same was granted and even during her cross examination by Ld. APP, she has deposed that accused did not solemnize marriage with her in any deceitful manner and further deposed that she had gone with accused voluntarily. She was also confronted with her statement recorded u/s 161 of Cr.P.C. which is Ex.PW1/B, but she has denied to have given any such statement, which is incriminating to the accused and thereafter, Ld. Counsel for accused has also crossexamined to the prosecutrix and during her crossexamination, she has admitted it to be correct that Sh. Gajraj Singh advised to her parents to sell her, if she was causing any trouble to her parents. She has also admitted it to be correct that at the time of her marriage with accused Mittu, she had told that she was major girl and she has also admitted to be correct that she has never been kidnapped away by the accused and further deposed that her father had lodged FIR against accused at the instance of Gajraj.
4 Whereas, the father of the prosecutrix has been examined as PW2 who has deposed that the prosecutrix was 18 years of old when she eloped away with someone. Initially, he was not aware as to with whom she had gone, but, later on, he came to understand that her daughter has maried with accused Mithu. He had filed the complaint before police, which is Ex.PW2/A. 5 The Ld. APP for the State had sought permission to crossexamine this witness, as this witness has resiled from his previous statement Ex.PW2/A. Accordingly, SC No.151/15 FIR no. 307/11 PS Nihal Vihar State Vs. Mithu Singh Page no. 3 of 10 4 this witness was declared as 'hostile' and the Ld. APP for the State was allowed to cross examine this witness. During his crossexamination, he has denied the suggestion that that the prosecutrix was called by one girl Geeta. He has voluntarily stated that at the time of leaving of his house by prosecutrix, he was not present at home. He does not remember whether he suspected regarding the kidnapping of prosecutrix by accused. He has denied the suggestion that he has forgotten the facts in view of passage of time and also denied that he has deposed falsely or he is won over by accused. This witness was also crossexamined by the Ld. Counsel for accused and during his crossexamination, he has admitted it to be correct that complaint Ex.PW2/A was filed by him in view of some misunderstanding.
6 I have heard the Ld. Counsels for the parties. 7 Ld. APP for the State has submitted that the matter may be adjourned for
examination of the remaining prosecution witnesses, whereas, the counsel for accused has opposed the same and submitted that since, the complainant and the prosecutrix has failed to support the case, so, he has prayed for closing the evidence of the prosecution & also prayed for acquittal of the accused.
8 Since, the prosecutrix and the complainant have failed to support the case of the prosecution against the accused Mittu Singh. So, in the considered opinion of this court. Even if, the remaining prosecution witnesses are allowed to be examined. Even then, the case cannot be resulted in the conviction of the accused Mittu Singh. So, in the considered opinion of this court, it will be futile to examine the remaining witnesses of the prosecution. Accordingly, the evidence of the prosecution is closed by order and SC No.151/15 FIR no. 307/11 PS Nihal Vihar State Vs. Mithu Singh Page no. 4 of 10 5 as, in the considered opinion of this court, no purpose would be served to examine the remaining witnesses of the prosecution, who are formal in nature.
9 Since, nothing incriminating evidence has come on the record against the accused Mittu Singh, therefore, the statement of the accused U/S 313 Cr.P.C is dispensed with.
10 Since, Their Lordship of the Hon'ble Supreme Court was pleased to hold in case 'Suraj Mal Vs. State (Delhi Administration) AIR 1979 Supreme Court 1408' was pleased to hold that:
"it is well settled that where witnesses make two inconsistent statements in their evidence either on one stage or at two stages, the testimony of such witness become unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witness."
11 Similarly, Their Lordship of the Hon'ble Supreme Court in case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi) and Hari Singh Vs. State (NCT of Delhi) (2012) 8 SCC 21'.
"In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the SC No.151/15 FIR no. 307/11 PS Nihal Vihar State Vs. Mithu Singh Page no. 5 of 10 6 status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the crossexamination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar test to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all SC No.151/15 FIR no. 307/11 PS Nihal Vihar State Vs. Mithu Singh Page no. 6 of 10 7 other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
12 Their lordship of High Court of Delhi in Rameshwar Giri V. State, 211 (2014) Delhi Law Times, 508, was pleased to observe : "16. As held by the Supreme Court in AIR 1965 SC 942, S. Varadarajan V. State such an act would tantamount to 'taking'. The observations of the Apex Court in this context are as under:
"The offence of 'kidnapping from lawful guardianship' is defined thus in the first paragraph of Section 361 of the Indian Penal Code:
"Whoever taken or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship'
8. It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping.........11. It must, however, be borne in mind that there is a distinction between 'taking : and allowing a minor to accompany a guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful quardian. 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.
12. It would, however, be sufficient if the prosecution establishes that through immediately prior to the minor leaving the father's protection SC No.151/15 FIR no. 307/11 PS Nihal Vihar State Vs. Mithu Singh Page no. 7 of 10 8 no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to 'taking'."
"17. This version is further fortified by the fact that the victim was admittedly known to the accused as he was residing in the same street since the last 2 years. The fact that the accused was known to the victim is also admitted by both PW6 and PW7 i.e. the mother and father of the victim. PW5 had accompanied the appellant for sightseeing; they did sightseeing for one hour in Delhi; then by a TSR, the appellant took her to the railway station; people were gathered there to purchase tickets. Tickets were purchased by the appellant from the railway station from where he took her to Bihar which would be a more than one day journey. The victim stayed in the village of the appellant 23 days. She was never threatened by the persons living in that house/ 56 ladies were also present. Other persons from the village also came to meet her. The MLC of the victim also shows that there was no injury upon her person. This corroborates the argument of the Learned Counsel for the appellant that the victim was not subjected to any force.
18. This Court thus necessarily draws the conclusion that the victim was a consenting party with the accused. The offence of rape as defined under Section 375 of the IPC (unamended) is not made out as for the purposes of rape to qualify as a minor, the victim should be less than 16 years. As noted supra, the victim was aged 15 years & 9 months on the date of the offence i.w. just about three months short of the age of 16. Being in the age of discretion; this Court is of the view that she was conscious of her act in accompanying the accused and it cannot be said to be an act of force. The accused is entitled to an acquittal for the offence under Section 376 of the IPC. He is accordingly acquitted of the said charge.
13 Since, the prosecutrix has categorically deposed on oath that she was never kidnapped away by accused Mittu Singh and she had voluntarily had gone with SC No.151/15 FIR no. 307/11 PS Nihal Vihar State Vs. Mithu Singh Page no. 8 of 10 9 this accused and she has also disclosed herself to be major before the accused and she has denied the suggestion given by the Ld. APP that accused had taken her on the pretext of roaming or that he had solemnized marriage with her in deceitful manner and similarly the complainant, who is none, but, the father of the prosecutrix and who has been examined as PW2 has deposed in the court that the prosecutrix was 18 years of age when she eloped away with someone and also deposed that the complaint Ex.PW2/A was filed in view of some misunderstanding. Since the prosecutrix has failed to support the case of the prosecution from the very beginning, as in her statement recorded U/s 164 of Cr.P.C., she did not support the case of the prosecution, which shows that she had deposed therein that she had voluntarily gone with the accused and the prosecutrix has also deposed in the court that she had called the accused and she has also categorically stated in this court that she was never kidnapped away by the accused, whereas, the complainant, who has been examined as PW2 has also not supported the case of the prosecution. he has deposed in this court that prosecutrix was 18 years of age, thus, the statement of PW2 is inconsistent with his complaint Ex.PW2/A. There are contradictions in the statement of the prosecutrix and complaint Ex.PW2/A. Since the FIR has been registered in this case, on the statement of the complainant, who has been examined as PW2, but when his statement is recorded in this court, he has given contradictory statement. He was crossexamined by Ld. APP for the State, but despite of his crossexamination, nothing incriminating evidence has come on record against the accused. Since, the testimony of PW2 is also found to be inconsistent, unreliable & unworthy of credit, so, it does not inspire any confidence therein. The prosecutrix has failed to support the case of the prosecution from the very beginning. No cogent or reliable evidence has been brought on record to prove that prosecutrix was kidnapped by accused.
SC No.151/15 FIR no. 307/11 PS Nihal Vihar State Vs. Mithu Singh Page no. 9 of 10 10 14 Therefore, I am inclined to hold that the prosecution has failed to prove that accused Mittu Singh has committed the offences punishable u/s 363/366 of IPC. Accordingly, the accused Mittu Singh is acquitted of the charges framed against him. The accused is directed to furnish the bail bond in the sum of Rs.20,000/ with one surety of like amount as per the provision of Section 437(A) of Cr.P.C for next six months to ensure his presence in the Hon'ble appellate court and on filing of Bail bond and surety bond, the file be consigned to the Record Room.
Announced in the open court (PAWAN KUMAR MATTO)
today i.e. on 15.07.2016 Additional Sessions Judge01(West)
Tis Hazari Courts, Delhi
SC No.151/15 FIR no. 307/11 PS Nihal Vihar State Vs. Mithu Singh Page no. 10 of 10