Delhi District Court
State vs Vikas Yadav on 11 April, 2018
IN THE COURT OF
SHRI BALWANT RAI BANSAL, ADDITIONAL SESSIONS
JUDGE01, SPECIAL COURT (POCSO), SOUTH, NEW DELHI
CISSC No.6792/16
FIR No. 159/11
PS: Mehrauli
In the matter of:
State
versus
Vikas Yadav
S/o: Sh. Firangi Yadav
R/o Village Jiyan Ganj Madhya Tola,
PSSarsi, District Punria,
Bihar.
............ Accused.
Date of Institution : 11.07.2011.
Date of Reserving Judgment : 26.03.2018.
Date of Pronouncement : 11.04.2018.
:JUDGMENT:
[1]. This is a case where accused Vikas Yadav S/o Sh. Firangi Yadav, has been charged and faced trial for the commission of offences punishable under sections 363/366/376 of the IPC, on the allegations that, he abducted a minor girl, namely 'C' CISSC No. 6792/16 'State vs. Vikas Yadav' Page 1 of 44 (name withheld in order to conceal her identity and her full name is mentioned at Serial No. 02 in the list of witnesses attached with the police report u/s 173 of Cr.P.C) (hereinafter referred to as 'the prosecutrix') aged about 15 years from custody of her lawful guardian and with an intention that she may be compelled or knowing it to be likely that she will be compelled to marry against her will and with an intention to have an illicit intercourse with her and also committed rape upon her.
[2]. The case of the prosecution is that on 04.04.2011, the complainant, namely, 'P' (mother of the prosecutrix, whose name withheld in order to conceal her identity and her full particulars are mentioned at Serial No. 01 in the list of witnesses attached with the charge sheet) reached the PS Mehrauli and made a complaint to SHO, PS Mehrauli, New Delhi. In her complaint, the complainant 'P', stated that: "On 22.03.2011, at 2.00 PM, her daughter namely 'C' (the prosecutrix) had gone to school for taking her examination but she did not return home and she could not be traced out despite the best efforts made by them and now she came to know that Vikas S/o CISSC No. 6792/16 'State vs. Vikas Yadav' Page 2 of 44 Firangi Yadav who was residing in the neighbourhood on rent and to whom her daughter used to call 'Mama', has taken away her daughter after enticing her and legal action may be taken against him." [3]. On the aforesaid complaint of the complainant, the present case FIR was registered u/s 363 of IPC against accused Vikas Yadav and investigation was commenced. During investigation, efforts were made to trace out the missing girl (the prosecutrix) and the accused. Statement of witnesses were recorded. Age proof of the prosecutrix was collected from her school as per which her date of birth is 11.10.1996. A raid was conducted at the house of the accused at Village Jiyanganj Madhya Tola, PS Sarsi, District Purnia, Bihar, from where the prosecutrix 'C' was recovered from the possession of the accused and the accused was arrested. Statement of the prosecutrix was recorded and her medical examination was got conducted and sections 366 and 376 of the IPC were added to the present case FIR. Medical examination of the accused was conducted and statement of the prosecutrix u/s 164 Cr.P.C was recorded. After CISSC No. 6792/16 'State vs. Vikas Yadav' Page 3 of 44 completion of investigation, challan was prepared u/s 363/366/376 of the IPC, and filed before the court of Ld. ACMM (South) on 23.05.2011 and after committal of the case, the case file was received by the Court of Sessions on 11.07.2011.
[4]. Charge for the commission of the offences punishable under sections 363/366/376 of the IPC was framed against the accused, to which, the accused pleaded notguilty and claimed trial, and the case was proceeded for prosecution evidence. [5]. In support of its case, the prosecution has examined 11 (eleven) witnesses to prove its case, including the prosecutrix as PW1. [6]. It is pertinent to mention here that during the trial, the accused has admitted two documents u/s 294 Cr.P.C i.e. recording of FIR in the present case by HC Nahar Singh, the Duty Officer and recording of statement of the prosecutrix 'C' u/s 164 Cr.P.C by Ms. Ankita Lal, Ld. MM and submitted that he has no objection if the said documents are admitted in evidence without calling the concerned witnesses to prove the same. Accordingly, on the statement of the CISSC No. 6792/16 'State vs. Vikas Yadav' Page 4 of 44 accused, the recording of FIR by HC Nahar Singh was admitted in evidence as Ex. PX vide order dated 24.10.2017. Similarly, on the statement of the Ld. Prosecutor, Ct. Kailash who has been cited as prosecution witness at Serial No. 11 in the list of witnesses was dropped from the list of witnesses vide order dated 23.10.2017. [7]. PW1 is the prosecutrix, namely, 'C' who is the main and crucial witness of the prosecution to prove its case. Her testimony shall be evaluated in the later part of the Judgment. [8]. PW2, namely, 'P' is the mother of the prosecutrix, on whose complaint, the present case FIR was registered. She deposed that on 22.03.2011, her daughter did not return from school and went missing. Accused Vikas used to run their TSR and she came to know that her daughter was taken away by accused. She made complaint to the police vide her statement Ex. PW2/A. She further deposed that after one week, police recovered her daughter and during these days, accused was harassing her daughter for which she made complaints Ex. Pw1/B, Ex PW1/C and Ex. PW1/D. CISSC No. 6792/16 'State vs. Vikas Yadav' Page 5 of 44 [9]. PW3 is Dr. Prerna Singh, Senior Resident (Gynae), AIIMS, New Delhi, who proved the MLC No. 55 dated 12.04.2011 of the prosecutrix prepared by Dr. Prerna on record as Ex. PW3/A. [10]. PW4 is Dr. Ashish Jain, Assistant Professor, Forensic Medicine who conducted the medical examination and potency test of the accused on 12.04.2011 while he was posted as Senior Resident in Department of Forensic Medicine at AIIMS Hospital and prepared the MLC report No. CS253362011 regarding medical examination of the accused which is Ex. PW4/A. [11]. PW5 Dr. Devasenathipathy K., Associate Professor, AIIMS, New Delhi conducted the bone age test of the prosecutrix for determination of her age and prepared his report Ex. PW5/A. [12]. PW6 is ASI Subhash Chander, who joined the investigation in the present case with the IO on 08.04.2011. On that day, he accompanied the IO and father of prosecutrix to the house of the accused at District Purnia, Bihar from where the prosecutrix was recovered from the possession of the accused. In his presence, IO CISSC No. 6792/16 'State vs. Vikas Yadav' Page 6 of 44 prepared the recovery memo regarding recovery of the prosecutrix Ex. PW6/A, arrested the accused vide arrest memo Ex. PW6/B and conducted personal search of the accused vide memo Ex. PW6/C. He also deposed that at that time, accused Vikas Yadav produced photocopy of two affidavits claiming his marriage with the prosecutrix 'C' which were taken into possession by the IO vide seizure memo Ex. PW6/D and the photocopy of said affidavits are Ex. PW6/E and Ex. PW6/F. [13]. PW7 W/Ct. Sunita took the prosecutrix to AIIMS Hospital for her medical examination on 12.04.2011 and after getting medically examined the prosecutrix, she handed over the prosecutrix along with her MLC to the IO in the police station.
[14]. PW8 ASI Sant Ram is the 1st Investigating Officer (IO) of the case who made endorsement vide Ex.PW8/A on the complaint Ex.PW2/A of the complainant and got the present FIR registered through Duty Officer and after registration of FIR carried out investigation in the matter. During investigation, he went to native CISSC No. 6792/16 'State vs. Vikas Yadav' Page 7 of 44 village of the accused along with the father of the prosecutrix in order to search the prosecutrix. He recovered the prosecutrix from the possession of the accused, arrested the accused and conducted his personal search and prepared all the necessary documents. He further deposed that accused was medially examined in local hospital at Bihar and after obtaining the transit warrant, they reached Delhi on the intervening night of 11/12.04.2011. Thereafter, accused and the prosecutrix were medically examined and thereafter the case file was marked to W/SI Pratibha for further investigation.
[15]. PW9 is Smt. Asha Chaudhary, UDC, Ramanujan Sarvodaya Kanya Vidhyalaya, Mehrauli, New Delhi who brought the documents relating to admission of the prosecutrix in their school and produced the copy of extract of admission and withdrawal register as Ex.PW9/A and copy of application form along with transfer certificate as Ex.PW9/B. She deposed that the aforesaid records are intact and maintained by their school authority and as per their record, date of birth of the prosecutrix is 11.10.1996.
CISSC No. 6792/16 'State vs. Vikas Yadav' Page 8 of 44 [16]. PW10 is 'SY' (the father of the prosecutrix, whose name withheld in order to conceal identity and his full particulars are mentioned at Serial No. 8 in the list of witnesses attached with the chargesheet). He deposed that his daughter was studying in 8th standard in the year 2011 and accused Vikas Yadav used to ply TSR. On the day of the incident, his wife had dropped his daughter at her school but when he went to her school for picking her up, she was not found present at her school. Initially, they made search for his daughter (the prosecutrix), but she could not be traced and thereafter, his wife went to the police station and made a complaint with the police, and the FIR was got registered. He deposed that he came to know that the accused had taken away his daughter. After three days, he received a telephonic call from his daughter who informed that Vikas had administrated her some stupefying substance and had taken her away to Purnia, Bihar. Thereafter, he went to the police station and apprised the aforesaid fact to the IO. Later on, he alongwith the police persons went to Purnia (Bihar), where his daughter was recovered on 09.04.2011 and a memo Ex.PW6/A was prepared in this regard. CISSC No. 6792/16 'State vs. Vikas Yadav' Page 9 of 44 Accused Vikas Yadav had produced photocopy of some documents and affidavits which are already Ex.PW6/E (colly.) and Ex.PW6/F (colly.) regarding marriage of his daughter with him, which were seized by the IO vide seizure memo already Ex.PW6/D. The accused Vikas Yadav was arrested vide arrest memo already Ex.PW6/B and his personal search was conducted vide memo already Ex.PW6/C. [17]. PW11 is Insp. Pratibha Sharma, the 2nd Investigating Officer (IO) of the case who received the case file on 12.04.2011 and conducted further investigation in the matter. During investigation, she seized the exhibits of the accused collected from the hospital vide seizure memo Ex. Pw11/A and got recorded the statement of the prosecutrix u/s 164 Cr.P.C from Ld. MM on her application Ex. PW11/B. After completion of investigation, she prepared the charge sheet and filed the same before the court.
[18]. The prosecution evidence was closed on 12.02.2018 and the case was proceeded for recording of the statement of the accused under section 313 of Cr.P.C.
CISSC No. 6792/16 'State vs. Vikas Yadav' Page 10 of 44 [19]. On 14.03.2018, accused Vikas Yadav was examined under section 313 of Cr.P.C. and his statement was recorded. During his examination under section 313 of Cr.P.C., the accused denied the correctness of the incriminating evidence appearing against him during the prosecution evidence. The accused stated that the prosecutrix had left her house with her own free will and consent and accompanied him at his village Purnia, Bihar and on the asking of the prosecutrix, he solemnized court marriage with her. He further stated that the parents of the prosecutrix were against their marriage and under the pressure of her family members, she has made false allegations against him.
[20]. Mr. Inder Kumar, Ld. Additional Public Prosecutor for the State has drawn my attention on the testimonies of the prosecutrix and the other witnesses examined by the prosecution including the documents exhibited during their evidence, and submitted that the case of the prosecution is fully proved and the accused is liable to be convicted.
CISSC No. 6792/16 'State vs. Vikas Yadav' Page 11 of 44 [21]. On the other hand, Mr. Rajeev Jain, Ld. Defence Counsel argued that the story of the prosecutrix and her parents is not reliable as their statements are contradictory to each other. He further argued that the prosecutrix has made improvements and her testimony is full of embellishments. Ld. Defence Counsel further argued that the prosecution has miserably failed to prove the age of the prosecutrix that she was below 18 years of age at the time of the alleged commission of the offence. He also argued that the prosecutrix had left her house with her own free will and consent and she accompanied the accused at his village Purnia, Bihar, where they solemnized court marriage with each other. It is also argued that since the parents of the prosecutrix were against their marriage, therefore, under the pressure of her family members, the prosecutrix made false allegations against the accused. He further contended that the accused has not committed any offence as alleged against him and he has been falsely implicated in this case by the prosecutrix under the pressure of her parents.
CISSC No. 6792/16 'State vs. Vikas Yadav' Page 12 of 44 [22]. Ld. Defence Counsel also submitted that there is no allegation in the testimony of the prosecutrix and other witnesses that the accused allured or enticed the prosecutrix, therefore, the ingredients of sections 363 and 366 of the IPC are not made out, and the prosecutrix was at the age of the majority and she had left her house with her own consent. He further submitted that the prosecutrix has not alleged that the accused had sexual intercourse with her, therefore, offence punishable under section 376 IPC is also not made out in this case. It is also contended by the Ld. Defence Counsel that the conduct of the prosecutrix throughout will suggest that she was willing and consenting party because she had left her house on 22.03.2011 and was recovered from the house of the accused at Purnia, Bihar on 09.04.2011, and during the said period, she did not raise any alarm or tried to run away or disclosed to any public person that she was kidnapped by the accused despite the fact that she was having ample opportunities to do so, while traveling in train from Delhi to Bihar and appearing in court or before Notary Public at the time of attestation of the said affidavits. He further argued that the CISSC No. 6792/16 'State vs. Vikas Yadav' Page 13 of 44 prosecution has not been able to prove the guilt of the accused and therefore, the accused is liable to be acquitted.
[23]. I have considered the submissions made by the Ld. Additional Public Prosecutor and Ld. Counsel for the accused and have gone through the record of the case carefully. [24]. The first point for determination is that: Whether the prosecutrix was the consenting party or she was allured, enticed or kidnapped and then raped by the accused?
[25]. The FIR in question was registered on the basis of the missing report lodged by the mother of the prosecutrix Ex.PW2/A dated 04.04.2011, in which she stated that her daughter (the prosecutrix), aged about 15 years, was missing since 22.03.2011 at 02:00pm, as she did not return from her school, and the complainant raised suspicion on the accused that he had taken away her daughter after alluring and enticing her.
[26]. On the basis of the aforesaid complaint Ex.PW2/A, the present case FIR was registered for the commission of the offence CISSC No. 6792/16 'State vs. Vikas Yadav' Page 14 of 44 punishable under section 363 IPC, and during the course of the investigation, the prosecutrix was recovered from the house of the accused at Purnia, Bihar on 09.04.2011. The prosecutrix was produced before the Ld. MM and her statement under section 164 Cr.P.C. was recorded on 13.04.2011, in which, she stated that "She knew accused Vikas Yadav for the last one year and she was in love with him. She stated that her mother wanted to get her forcibly married with someone else, but she refused to marry because the boy with whom her mother wanted to get her married, was dumb (goonga). She eloped with accused Vikash on 22.03.2011 and they went to Bihar, where they both married in a temple and in the marriage, the family members of accused Vikas were also present. She stated that after the marriage, she had sexual intercourse with the Vikash".
[27]. Thereafter, the prosecutrix was also medically examined on 12.04.2011 in the AIIMS hospital vide MLC report Ex.PW3/A. At the time of her medical examination, the prosecutrix told to the doctor that "she went on her own accord with boy of her choice on CISSC No. 6792/16 'State vs. Vikas Yadav' Page 15 of 44 23.03.2011, stayed with her and had sexual relations, and the last intercourse between them was twothree days back". [28]. Thereafter, the prosecutrix was examined as PW1 in the court and in her evidence, she deposed that accused Vikas Yadav used to stay as tenant in their house and he was like her maternal uncle. One day, when she was going to school for her examination, accused offered her to have a ride in Metro. Accused took her by Metro train and offered her some Pepsi and snacks and thereafter he took her to his village at Bihar. There they stayed for 12 days. She deposed that after taking Pepsi drink, she was not conscious and she did not know if during that period, accused did any physical act with her. Accused also got married with her forcibly during that period. Accused also did court marriage with her. She deposed that she called her father and asked to take her from the village of accused. Her father came there with police and she was taken back to Delhi. She deposed that she was pressurized by the family members of the accused to depose in his favour. She deposed that the statement Ex.PW1/A was made by her as CISSC No. 6792/16 'State vs. Vikas Yadav' Page 16 of 44 per the wishes of the accused. She was born on 01.09.1995. She was under the pressure of the family members of the accused, so she did not go with her parents and opted to go to NGO Prayas. After some time she realized her mistake and again joined her parents. She deposed that accused is still pressurizing her to take his side and out of his pressure, she tried to commit suicide also and her mother made complaints Ex.PW1/B, Ex.PW1/C and Ex.PW1/D in this regard. [29]. In her crossexamination, the prosecutrix has stated that Pepsi was offered by the accused near her school. She was taken to Qutub Metro Station by the accused. She was not in her senses when accused got married with her. She stayed outside her house for three days. She is unmarried. Initially accused married her at temple and then in court. She denied the suggestion that she herself forced the accused to take her alongwith him and she herself forcibly got married with him. She further denied the suggestion that she told the accused that she was 18 years old at that time. She further denied the suggestion that she told the accused that she was in love with him and CISSC No. 6792/16 'State vs. Vikas Yadav' Page 17 of 44 if he does not take her alongwith him, then she will commit suicide. She also denied the suggestion that she told the accused that her mother was forcibly marrying her with some other person and so, he should take her with him.
[30]. From the aforesaid statement of the prosecutrix, it is revealed that she has not made any allegations against the accused that she was allured or enticed by the accused to accompany him. The prosecutrix though had stated that she was offered some Pepsi drink and snacks and thereafter, she was not conscious about herself. However, it does not appeal to the reason that after taking the Pepsi drink with stupefying substance, the prosecutrix lost her senses and then, the accused took her to Purnia (Bihar) from Delhi in the said unconscious state of the prosecutrix. There is no evidence at all to substantiate the allegations of the prosecutrix that the Pepsi drink was having some stupefying substance and after consuming the same, she lost her senses.
[31]. Ld. Defence Counsel vehemently argued that the CISSC No. 6792/16 'State vs. Vikas Yadav' Page 18 of 44 prosecutrix has alleged that she was made to drink Pepsi and thereafter, she was not conscious about herself. He submitted that the court has not framed any charge under section 328 of IPC and there is no evidence at all to show that any stupefying substance was administered to the prosecutrix and in the absence thereof, statement of the prosecutrix that she lost consciousness after taking Pepsi can not be relied upon. Ld. Defence Counsel relied upon Crl. Appeal, 2010 [1] JCC 750, entitled "Mukesh Chand and Ors. vs. State (Govt. of NCT of Delhi)", passed by the Hon'ble Delhi High Court, wherein the reference is also made of "Joseph Kurian Philip Jose vs. State of Kerala", AIR 1995 SC 4.
[32]. It has been held in "Joseph Kurian Philip Jose vs. State of Kerala", AIR 1995 SC 4, that:
"In order to prove offence under section 328, the prosecution is required to prove that the substance in question was a poison, or any stupefying, intoxicating or unwholesome drug, etc., that the accused administered the substance to the complainant or caused the complainant to take such substance, that he did so with intent to cause hurt or knowing it to be likely that he would thereby cause hurt, or with the intention to commit or facilitate the commission of CISSC No. 6792/16 'State vs. Vikas Yadav' Page 19 of 44 an offence. It is, therefore, essential for the prosecution to prove that the accused was directly responsible for administering poison etc. or causing it to be taken by any person, through another. In other words, the accused may accomplish the act by himself or by means of another. In either situation direct, reliable and cogent evidence is necessary....".
[33]. In the case in hand, the charge under section 328 IPC has not been framed by the court and therefore, the allegations of the prosecutrix that she was given some Pepsi drink having some stupefying substance and consequently, she lost her consciousness, is not acceptable. It may also be noted that in her statement under section 164 Cr.P.C., the prosecutrix has categorically stated that she eloped with accused Vikash on 22.03.2011 and they went to Bihar, though in her testimony, she stated that she made statement Ex.PW1/A to the police as per the wishes of the accused and she was pressurized by the family member of the accused to depose in favour of the accused. However, it is not the case of the prosecution that the prosecutrix after the recovery from the house of the accused, had lived with the accused or his family members. The accused was arrested and remained in judicial custody and was admitted to bail on 30.04.2011 CISSC No. 6792/16 'State vs. Vikas Yadav' Page 20 of 44 while the statement of the prosecutrix was recorded u/s 164 Cr.P.C. on 13.04.2011. Further, at the time of the recording of her statement u/s 164 Cr.P.C., the Magistrate had satisfied herself that the prosecutrix was making her statement voluntarily. Moreover, even if this version of the prosecutrix is assumed to be correct that the statement u/s 164 Cr.P.C. before the Magistrate was given under the pressure of the family members of the accused, still when she was examined by the doctor on 12.04.2011, at that time also she stated that she went with the accused with her own accord on 23.03.2011 and stayed with her. It is not the case of the prosecutrix that at that time also, she was under
pressure or threat by the family members of the accused or of the accused.
[34]. Furthermore, as per the statement of PW2 the complainant (the mother of the prosecutrix), the prosecutrix went missing on 22.03.2011. However, the prosecutrix did not state that on which date the accused took her by Metro Train and offered her Pepsi drink and took her at his village in Bihar. The prosecutrix stated that CISSC No. 6792/16 'State vs. Vikas Yadav' Page 21 of 44 there, she stayed for onetwo days.
[35]. In her crossexamination, the prosecutrix stated that she stayed outside her house for three days. If these statements are considered, then it is revealed that the statement of the prosecutrix is not trustworthy or reliable. If she stayed at the house of accused for onetwo days then where she stayed for the remaining period has not been explained because it is not the case of the prosecution that she had stayed with the accused elsewhere than his house at Purnia, Bihar. There is no explanation from the prosecutrix if she remained outside her house for three days, then for which period she stayed with the accused. The prosecutrix has not disclosed that by what mode she was taken to village Purnia, Bihar and there is nothing in her testimony that she ever made any effort to run away if she was taken away forcibly by the accused or raised any alarm. Though, she stated that the accused married with her forcibly during the said period and he also did court marriage with her. The prosecutrix also stated that she was not in her senses when the accused got married with her. She has CISSC No. 6792/16 'State vs. Vikas Yadav' Page 22 of 44 admitted that Pepsi drink was offered by the accused near her school, meaning thereby she went with the accused on 22.03.2011 and the Pepsi was offered by the accused on 22.03.2011 and they reached Bihar on 23.03.2011. If this fact is taken to be correct then, it is not believable that she remained unconscious till 23.03.2011, therefore, this statement that she was not under her senses when the marriage took place, is not reliable. The prosecution has placed on record the marriage documents i.e. affidavits Ex.PW6/E (colly.) and Ex.PW6/F (colly.) between the accused and the prosecutrix dated 28.03.2011. The said affidavits were duly notarized by the Notary Public, and there is nothing in the testimony of the prosecutrix that she ever told to the said Notary Public that she was taken away by the accused forcefully. For the aforesaid reasons, the testimony of the prosecutrix is not trustworthy and reliable and does not inspire confidence. [36]. PW2, who is the mother of the prosecutrix and made complaint to the police on 04.04.2011 vide Ex.PW2/A, stating that on 22.03.2011, her daughter went missing as she did not return from CISSC No. 6792/16 'State vs. Vikas Yadav' Page 23 of 44 school. She categorically stated that her daughter told her that she was not in relations with the accused and she was not aware how she was taken away by the accused. PW2 (the mother of the prosecutrix) substantiates the fact that there has not been any physical relationship between the accused and the prosecutrix. This statement that her daughter told her that she was not aware as to how she was taken away by the accused further substantiates that she was not allured or enticed by the accused to accompany him to Bihar. Otherwise, the prosecutrix would have disclosed to her mother that she was taken to Bihar by the accused forcefully or after allurement or enticement.
There is nothing in the statement of PW2 (the mother of the prosecutrix) to infer that the accused allured or enticed the prosecutrix or administered some stupefying substance.
[37]. The Ld. Defence Counsel also contended that the factum of leaving the house by the prosecutrix was known to the family members of the prosecutrix and therefore, they did not make any complaint from 22.03.2011 to 04.04.2018 and these facts reveal that CISSC No. 6792/16 'State vs. Vikas Yadav' Page 24 of 44 the parents of the prosecutrix were knowing the factum that their daughter had eloped with the accused and in the absence of any evidence of kidnapping, the accused is liable to be acquitted. [38]. PW10, namely, 'SY', who is the father of the prosecutrix, has stated in his evidence that accused Vikash Yadav is his relative, who used to visit his house and he used to ply TSR. He stated that on the day of the incident, his wife had dropped her daughter at her school but when he went to her school for picking her up, she was not found present at her school. He stated that initially, they made search of his daughter, but she could not be traced and thereafter, his wife went to the police station and made a complaint with the police and the FIR was got registered. This statement of the father of the prosecutrix reveals that the FIR was registered by his wife on the day when the prosecutrix went missing, however, the fact is otherwise, as per the prosecution story, the prosecutrix went missing on 22.03.2011, which is also the statement of the PW2 (the mother of the prosecutrix) that when she went to the school and did not return back on CISSC No. 6792/16 'State vs. Vikas Yadav' Page 25 of 44 22.03.2011, then the mother of the prosecutrix went to the Police Station for lodging the missing report on 04.04.2011. Therefore, this statement of PW10 (the father of the prosecutrix) is false on the face of the record itself. He further stated that he received a telephonic call from his daughter (the prosecutrix) and she informed him that Vikas had administrated her some stupefying substance and had taken her away to Purnia, Bihar.
[39]. In his crossexamination, PW10 (the father of the prosecutrix) stated that he does not remember as to how many times the police recorded his statement. He further stated that he had told to the police that he received a telephonic call from his daughter (the prosecutrix) and she informed him that Vikas had administrated her some stupefying substance, however, when PW10 was confronted with his statement dated 04.04.2011 Ex.PW10/DX1 and statement dated 09.04.2011 Ex.PW10/DX2 under section 161 Cr.P.C., the said facts were not mentioned therein. It categorically shows that the witness has improved his version. PW10 (the father of the prosecutrix) CISSC No. 6792/16 'State vs. Vikas Yadav' Page 26 of 44 further stated that he did not report to the police regarding the missing of his daughter (the prosecutrix), and on the next day in the morning, his wife informed the police about the missing of his daughter. Again, this witness is deposing contrary to the record. As per PW10 (the father of the prosecutrix), the missing of his daughter was reported to the police on the next day morning on 23.03.2011 by his wife, but as discussed herein above, his wife made complaint to the police on 04.04.2011. He denied the suggestion that his wife did not make a missing report to the police on the next date, or that his wife made a missing report of his daughter (the prosecutrix) on 04.04.2011, and the said denial of the suggestions is obviously contrary to the record and the facts.
[40]. PW10 (the father of the prosecutrix) also denied the suggestion that his daughter went alongwith the accused out of her own free will for the reasons that he fixed her marriage with a boy, namely, Amit. While, his wife PW2 in her crossexamination admitted that "it is correct that she wanted to get her daughter married with one CISSC No. 6792/16 'State vs. Vikas Yadav' Page 27 of 44 Amit and still she was willing to do so.
[41]. The aforesaid statement of the father of the prosecutrix again shows that the testimony of this witness does not help to the prosecution case. He does not know when the missing report was lodged with the police, whether it was on 23.03.2011 or on 04.04.2011. He has improved his version regarding administering the alleged stupefying substance, which is not found mentioned in his statement given to the police under section 161 Cr.P.C., and therefore, his testimony is not reliable and trustworthy.
[42]. It may be noted that the police had gone to the house of the accused at Purnia, Bihar on 08.04.2011 to recover the prosecutrix and PW6 ASI Subhash Chander had joined the investigation on that day alongwith the IO/HC Sant Ram and they had gone to Bihar, where the prosecutrix was recovered. In the crossexamination, PW6 ASI Subhash Chander stated that the IO had made inquiries from the neighbours but he did not record their statement. He further stated that the IO also made inquiries from the father and mother of the accused CISSC No. 6792/16 'State vs. Vikas Yadav' Page 28 of 44 but did not record their statement. He was suggested that after inquiries from the neighbourer it came to the notice that the prosecutrix was residing at the house of the accused out of her own will and for this reason, the IO had not recorded the statement of the neighbour, and the witness has denied the correctness of the said suggestion. However, if the IO had made inquiries from the neighbours then their statement should have been recorded by the IO as it would have disclosed the truth of the matter whether the prosecutrix was kept by the accused forcefully or she was residing with the accused with her own free will.
[43]. PW8 ASI Sant Ram, who is the IO of the case and had carried out investigation, had gone to the house of the accused at Bihar from where the prosecutrix was recovered. He had also collected the documents Ex.PW6/E and Ex.PW6/F, which are the affidavits of the prosecutrix and the accused, notarized before the Notary Public regarding their marriage. During his crossexamination, PW8 ASI Sant Ram categorically stated that the documents Ex.PW6/E and CISSC No. 6792/16 'State vs. Vikas Yadav' Page 29 of 44 Ex.PW6/F were collected by him, but no inquiry was carried out by him pertaining to the Notary Public who had attested the photographs of the accused and the prosecutrix which was affixed on the said documents Ex.PW6/E and Ex.PW6/F. He also stated that the villagers told to him that the marriage was solemnized of the accused with the prosecutrix forcefully, but no one was ready to give same in writing, and he did not record the statement of any of the witness in this regard.
[44]. The aforesaid testimony of PW8 ASI Sant Ram again substantiates the contention of the Ld. Defence Counsel that the prosecutrix stayed with the accused with her own free will and consent. The IO should have made inquiries in order to ascertain whether the prosecutrix was kept forcefully or under threat by the accused or she was allured and affidavits (Ex.PW6/E and Ex.PW6/F) were got attested forcefully and against her consent after enticing her. But, the same has not been done. It is also established from the testimony of PW8 ASI Sant Ram that he made inquiries from the CISSC No. 6792/16 'State vs. Vikas Yadav' Page 30 of 44 villagers and other persons, but he has not recorded their statement. The statement of the IO that nobody was willing to give their statement in writing is not acceptable because he did not serve any notice to them and did not initiate any action against them as per law for refusing to record their statement.
[45]. On the other hand, the defence of the accused has been that the prosecutrix had accompanied him with her own consent to his village Purnia, Bihar, and on the asking of the prosecutrix, he solemnized court marriage with the prosecutrix. He has also taken a plea that the parents of the prosecutrix were against their marriage and under the pressure of her family members, the prosecutrix has made false allegations against him. The said defence taken by the accused appears to be plausible and probable because as per the version given by the prosecutrix to the doctor and in her statement under section 164 Cr.P.C. to the Ld. Magistrate, in which, she categorically stated that she ran away with the accused with her own consent as her parents were getting her married without her consent. PW2 (the mother of the CISSC No. 6792/16 'State vs. Vikas Yadav' Page 31 of 44 prosecutrix) categorically stated that she wanted to get her daughter married with one Amit and still she was willing to do so. From the statement of the prosecutrix, it is apparent that there is no allegation against the accused of the commission of rape under section 376 IPC as she did not state that the accused had made sexual intercourse with her. There was no enticement or allurement on the part of the accused under sections 363 and 366 of the IPC and it is apparent that she has accompanied the accused with her own consent and the accused had not taken her away against her wishes after any sort of allurement or enticement.
[46]. Having said so, the Ld. Prosecutor argued that since the prosecutrix was below the 18 years of age, her consent is immaterial. While the Ld. Defence Counsel argued that she was major. Therefore, the determination of the age of the prosecutrix would arrive at the finding that the prosecutrix was willing and consenting party and if she is found minor, then her consent does not matter, and then the accused shall be found guilty for the commission of the offences CISSC No. 6792/16 'State vs. Vikas Yadav' Page 32 of 44 punishable under sections 363 and 366 of the IPC.
[47]. To arrive at the conclusion of the case, the second point for determination is that: What was the age of the prosecutrix on the date of the incident?
[48]. Ld. Defence Counsel contended that different version has been given by the prosecution witnesses regarding the age of the prosecutrix. He contended that as per the school certificate produced by PW9, the date of birth of the prosecutrix is 11.10.1996, while PW1 (the prosecutrix) has stated her age as 01.09.1995. He also contended that the father of the prosecutrix has been examined as PW10, who does not know the date of birth of the prosecutrix and submitted that the date of birth recorded in the school is without any basis as submitted by the said witness. Ld. Defence Counsel further submitted that the prosecutrix has given an affidavit at the time of getting notarized the affidavits for the purpose of court marriage, in which, she had given her age as 19 years and therefore, the prosecution has not been able to prove the birth certificate produced by PW9. Ld. CISSC No. 6792/16 'State vs. Vikas Yadav' Page 33 of 44 Defence Counsel further submitted that the prosecution has got conducted the boneage test of the prosecutrix vide report Ex.PW5/A, as per which the boneage of the prosecutrix was opined by the doctor as more than 15.2 years and less than 15.8 years, but considering the margin of two years, the boneage of the prosecutrix comes close to 18 years of age.
[49]. Regarding the age of the prosecutrix, PW9 Smt. Asha Chaudhary, UDC in the school where the prosecutrix initially took admission, has been examined by the prosecution, who has produced the Admission Register and Paste File maintained by the school having documents pertaining to the admission of the student, namely, 'C' (the prosecutrix). The relevant pages of the said record are Ex.PW9/A and Ex.PW9/B, and as per the said record, the date of birth of the prosecutrix is 11.10.1996. In her crossexamination, PW9 Smt. Asha Chaudhary categorically stated that she has not brought any supporting document pertaining to the date of birth of the said student (the prosecutrix) i.e. the date of birth certificate issued by MCD or CISSC No. 6792/16 'State vs. Vikas Yadav' Page 34 of 44 affidavit given by her parents or some Panchayat certificate certifying the date of birth of the prosecutrix.
[50]. From the aforesaid testimony of PW9, it is apparent that no MCD certificate or any affidavit was given by the parents of the prosecutrix at the time of admission in the school. Therefore, the date of birth can not be said to have been proved by the school record. PW10 (the father of the prosecutrix) has stated in his cross examination that he does not know the name of the school in which his daughter (the prosecutrix) was studying at the time of the incident. He stated that the school from where his daughter went missing was her 'firstattended' school. He voluntarily deposed that his wife looks after all the affairs of his family. He stated that he cannot tell the date of birth of any of his children. He stated that his daughter (the prosecutrix) might have been three/four years old when she was got admitted in the school. He stated that his wife might have taken to the school the certificate regarding the date of birth of his daughter, issued by the MCD or any other government authority. He stated that at the CISSC No. 6792/16 'State vs. Vikas Yadav' Page 35 of 44 time of missing of his daughter, her age may have been 1516 years. [51]. PW1 (the prosecutrix) stated in her evidence that her date of birth is 01.09.1995, while in her affidavit dated 28.03.2011 (Ex.PW6/E), she has given her age as 19 years. Therefore, in these facts and circumstances, it cannot be ascertained that which is the correct and real date of birth of the prosecutrix.
[52]. The another document relied upon by the prosecution is the boneage test report Ex.PW5/A, which shows the age of the prosecutrix as more than 15.2 years and less than 15.8 years. However, question arises that whether this report is correct or not, as in his crossexamination, PW5 Dr. Devasenathipathy K., who had conducted the boneage test on the prosecutrix, has stated that he had not examined the teeth of the prosecutrix and as per his opinion, the age can be out of this range in rare situation.
[53]. During the course of arguments, Ld. Defence Counsel has vehemently argued that possibility of an error of plus/minus two years in the opinion rendered by radiological examination, cannot be ruled CISSC No. 6792/16 'State vs. Vikas Yadav' Page 36 of 44 out and when two opinions are possible, one favouring the accused has to be taken. In this regard, he has relied upon the judgment passed by the Hon'ble Madhya Pradesh High Court in "Lakhanlal vs. State of Madhya Pradesh", 2004 CRI. LJ 3962 and the another judgment passed by Hon'ble Allahabad High Court in "Shakeel @ Pappoo & Anr. vs. State of U.P., 2000 CRI LJ 153.
[54]. In Lakhanlal case (supra), the doctor examining victim girl had clearly mentioned in report that her age was below 18½ years, on the other hand, doctor had admitted that in determining age on the basis of ossification test, variation of two years 'plus' or 'minus' is possible and in these facts the Hon'ble Madhya Pradesh High Court held that there is apparent contradiction in report of doctor and therefore benefit of doubt should go to accused and the victim cannot be held to be under age of 18 years on the date of incident. [55]. Similarly, in case of "Shakeel @ Pappu vs. State of U.P. (supra), ossification test report of the prosecutrix suggested her age as 17 years with margin of 1 year i.e. 18 years. The Hon'ble Allahabad CISSC No. 6792/16 'State vs. Vikas Yadav' Page 37 of 44 Court while relying upon the various judgments of Hon'ble High Courts of Bombay and Madaras and of Honb'le Apex Court , observed that opinion of age based on ossification is liable to an error of 2 years either way, if the opinion is to be exact it should be expressed in the form of upper and lower limit. Thus if a doctor gives an opinion based on ossification that in his opinion the age of Q is 15 years that opinion is liable to an error of 2 years up or down and the exact age will be between 13 and 17. With these observations, it was held by the Hon'ble Allahabad Court that in the case in hand, on a margin of one year given at the age of 17 years estimated by the doctor it can safely be held that the age of prosecutrix on the date of occurrence was about 18 years.
[56]. In "Chattar Pal vs. State of N.C.T. of Delhi, CRL. A 763/2003 decided on 27.05.2015, it was observed by Hon'ble Delhi High Court that even if ossification test report is taken at its face value, considering the possibility of error on plus/minus two years in the opinion rendered by the radiological examination, it cannot be concluded with certainty that the prosecutrix was below 16 years of CISSC No. 6792/16 'State vs. Vikas Yadav' Page 38 of 44 age on the date of incident. The Hon'ble High Court has relied upon the judgment of Hon'ble Apex Court in "Jaya Mala vs. Home Secretary, Govt. of J & K" (1982) SCC 1296 wherein it was held that there can be two years' margin either way in radiological examination and it is well settled that when two opinions are possible, the one favouring the accused, has to be taken.
[57]. Ld. Defence Counsel strenuously argued that the prosecutrix was at the age of discretion and was well within the knowhow of her acts. Ld. Counsel for the accused relied upon the judgment passed by the Hon'ble High Court of Delhi in Crl. A. No.325/2013 entitled "Vijay Kumar vs. State of NCT of Delhi", in which the reference of the judgment passed by the Apex Court in AIR 1995 SC 2169 "Shyam and another vs. State of Maharashtra" has been given in Para No. 14.
[58]. I have gone through the judgment relied upon by the Ld. Defence Counsel. In the judgment passed by the Apex Court in AIR 1995 SC 2169 "Shyam and another vs. State of Maharashtra", while CISSC No. 6792/16 'State vs. Vikas Yadav' Page 39 of 44 dealing with the offence under section 366 of the IPC and noting that the prosecutrix had not touched the age of 18 years (18 years being the adult age for the offence under section 366 of the IPC), the Apex Court in this context noting that the prosecutrix was at the age of discretion being sensible and aware of the intention of the appellant and having gone with him on her own, notwithstanding the fact that she was technically a minor, had thought it fit to acquit the appellant for the offence under section 366 of the IPC. The relevant extract of the aforenoted judgment reads herein as under:
"In her statement in Court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the socalled "taking", it does not seem that the prosecutrix was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts would be under check by both the appellants/accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by "taking" her out of the lawful guardianship of her mother. Secondly, it is difficult to CISSC No. 6792/16 'State vs. Vikas Yadav' Page 40 of 44 believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but, still she was in the age of discretion, sensible and aware of the intention of the accused Shyam, that he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam the appellant on her own and in that sense there was no "taking" out of the guardianship of her mother. The culpability of neither Shyam, A1 nor that of Suresh, A2, in these circumstances, appears to us established. The charge against the appellants/accused under section 366 of the IPC would thus fail. Accordingly, the appellants deserve acquittal. The appeal is, therefore, allowed acquitting the appellants".
[59]. I have given my thoughtful consideration to the aforementioned judgments and the testimonies of the witnesses examined by the prosecution to prove the age of the prosecutrix. In the case in hand, even if, the ossification test report is assumed to be correct, it is more than 15.2 years and less than 15.8 years, and relying CISSC No. 6792/16 'State vs. Vikas Yadav' Page 41 of 44 upon the aforesaid judgments cited supra, if two years margin is given, it comes around 17.8 years, which is just short of 18 years of becoming an adult.
[60]. In view of the above, giving benefit of doubt to the accused, it is held that prosecutrix was just short of about four months of attaining 18 years of age at the time of the alleged commission of the offences and she was wellaware of the pros and cons. The prosecutrix was sensible and aware of the intention of the accused and she stayed with the accused as a voluntary stay. She accompanied the accused Vikas Yadav with her own free will and consent. She did not raise alarm at any point of time despite having ample opportunities. She did not make even a feeble attempt to escape from the house of the accused where she resided. She did not inform the neighbours or the villagers at Purnia, Bihar, or the Notary Public while getting attested the affidavit of her alleged marriage with the accused, that she was kidnapped by accused Vikas Yadav. The circumstances of the case suggest that the prosecutrix had accompanied the accused with CISSC No. 6792/16 'State vs. Vikas Yadav' Page 42 of 44 her free will and consent, and it has not been established beyond reasonable doubt that she was allured or enticed or taken away or kidnapped by the accused.
[61]. Therefore, in the factual matrix of the present case, I am of the considered opinion that the prosecutrix has accompanied the accused willfully and voluntarily and her consent being the age of discretion, deems to be valid, and therefore, giving benefit of doubt to the accused, the accused cannot be held guilty for the commission of the offences punishable under sections 363/366 of the IPC. There is also nothing in the testimony of the prosecutrix that the accused had committed sexual intercourse with her, and therefore, the accused cannot also be held guilty for the commission of the offence of rape punishable under section 376 of the IPC.
[62]. In summing up, I have no hesitation to hold that prosecution has miserably failed to prove the charges against the accused for the commission of the offences punishable under sections 363/366/376 of the IPC, and therefore, accused Vikas Yadav is not CISSC No. 6792/16 'State vs. Vikas Yadav' Page 43 of 44 found guilty of the aforesaid offences as charged with, and consequently, he is hereby acquitted.
[63]. However, Vikas Yadav is required to furnish bail bond in the sum of Rs.15,000/ with one surety of like amount, under section 437A of Cr.P.C, which shall remain in force for a period of six months. The bail bonds are furnished and the same are accepted. [64]. File be consigned to Record Room after necessary compliance.
(Pronounced in the open court (Balwant Rai Bansal) on 11th day of April 2018). Additional Sessions Judge01 Special Court (POCSO), South District:Saket Courts:
New Delhi.
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