Delhi District Court
Sc No: 33/15 State vs . Akash on 7 November, 2015
SC No: 33/15 State Vs. Akash
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 33/15
FIR No. 1118/14
Police Station SP Badli
Under Section 363/366 IPC &
4 POCSO Act
ID No. 02404R0-074542015
State
Versus
Akash
S/o Sh. Uma Shanker
R/o J-96, Gali No.1, Kushak Road,
Gadda colony, Swaroop Nagar,
Delhi. ......Accused
Date of institution 24/02/15
Judgment reserved on 07/11/15
Judgment Pronounced on 07/11/15
Decision Acquitted
Judgment 1 of 12
SC No: 33/15 State Vs. Akash
JUDGMENT
1. Briefly stated the case of the prosecution is that prosecutrix 'A @ R' , aged about 14 years went missing from her house on 27.09.2014. Her father alleged that his daughter has been kidnapped by the accused and prayed that she be traced out. On the basis of the complaint, the present FIR was registered.
2. During the course of investigation, IO made efforts to search for the prosecutrix through publicity and publication in electronic and printed media but there was no clue of the prosecutrix. On 30.12.2014, prosecutrix and accused were apprehended at Ludhiana and brought to Delhi. Prosecutrix claimed that she had gone with the accused of her own free will and got married to him. Prosecutrix was medically examined but she refused for her internal examination. Accused was arrested. After completing investigations, charge sheet was filed.
Judgment 2 of 12
SC No: 33/15 State Vs. Akash
3. Charge for the offences under Section 363/366 IPC & Section 4 POCSO Act was framed against accused. Accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
4. Prosecution has examined 7 witnesses.
5. PW1 is the prosecutrix. She testified that her age is 17 years. She developed friendship with the accused and voluntarily went with him to Ludhiana and stayed there with accused for three months. She denied that the accused developed physical relations with her. She further deposed that she returned back to Delhi on 30.12.2014 along with the accused after they were apprehended by the police. She was taken to Hospital for medical examination but she refused for the same. She proved her statement Ex. PW1/A recorded U/s 164 Cr. PC .
Judgment 3 of 12
SC No: 33/15 State Vs. Akash
6. PW2 is the father of the prosecutrix. He lodged the missing report of her daughter aged about 14 years. He testified that on 30.12.2014 he got recovered her daughter from Ludhiana and the accused was arrested vide memo Ex PW2/A & the personal search of accused was taken vide memo Ex PW2/B.
7. PW3 Dr Komal Arora examined the prosecutrix vide MLC Ex PW3/A.
8. PW4 Dr Saurabh Narayan, proved the medical examination of the accused vide MLC Ex PW4/A.
9. PW5 Ajay Gupta, witness from the School of the prosecutrix produced her school admission record Ex PW5/A-C, as per which the date of birth of the prosecutrix is mentioned as 12.01.2002.
Judgment 4 of 12
SC No: 33/15 State Vs. Akash
10. PW6 Israr Babu proved the customer application form of mobile number 9654293245 in the name of Shiraj Wati along with the her identity proof as Ex PW6/A & B. He proved the call details record of the said number from the period from 04.10.2014 to 31.12.2014 as Ex PW6/C. He also proved the customer application form of mobile number 8447543405 in the name of Preeti along with the her identity proof as Ex PW6/E & F. He proved the call details record of the said number from the period from 04.10.2014 to 31.12.2014 as Ex PW6/G. He proved the certificates u/s 65 (B) Indian Evidence Act in respect of both the records as Ex PW6/D & H.
11. PW7 SI Sushila is the IO of the case. She got conducted the medical examination of the accused vide MLC Ex. PW3/A. She got recorded the statement of the prosecutrix u/s 164 Cr.P.C as per her application Ex PW7/A. She obtained the age proof of prosecutrix from her School as per the record Ex. PW-5/A-C wherein the date of birth of the prosecutrix is mentioned as Judgment 5 of 12 SC No: 33/15 State Vs. Akash 12.01.2002. During her cross-examination, the PW7 termed it correct that the prosecutrix never stated to her that the accused enticed the prosecutrix and had taken the prosecutrix against her wish and also that the prosecutrix disclosed her age to be more than 17 years of age.
12. In the present case, the prosecution cited 14 witnesses in order to prove its case against the accused. After framing of the charge the accused gave a statement wherein he admitted the FIR in question as Ex. PX-1, DD No.22A as Ex. PX-2 and his potency report as Ex PX-3. In view of the same the concerned Duty Officer, Doctor and police witnesses were not summoned for examination. Remaining witnesses were examined as PW1 to PW7 and their testimonies have already been discussed as above.
Judgment 6 of 12
SC No: 33/15 State Vs. Akash
13. In these circumstances PE was closed. Statement of accused was dispensed with as no incriminating evidence came on record against the accused from the statements of material witnesses and of the prosecutrix.
14. Arguments have been addressed by learned Additional PP as well as learned defence counsel.
15. I have heard the arguments and also perused the case file carefully.
16. Age of the prosecutrix: In the present case, accused is alleged to have kidnapped prosecutrix, a minor aged about 14 years and took her to Ludhiana with intent that she may be compelled to marry him and/or be forced/seduced for illicit intercourse with him. In order to prove that the prosecutrix was a "Child" less than 18 years of age, as on the date she went missing from her house, prosecution collected the School record of the Judgment 7 of 12 SC No: 33/15 State Vs. Akash prosecutrix wherein, the date of birth of the prosecutrix is 12.01.2002. However, no government record in respect of the date of birth of the prosecutrix has been produced. The prosecutrix claims her age as 17 years, none the less the defence does not claim that the prosecutrix was more than 18 years when she eloped with the accused and hence she is a 'child' within the meaning of Section 363/366 IPC & POCSO Act.
17. Ld. Addl. PP has contended that since prosecutrix was less than 18 years of age as on the date of commission of offence, accused is liable to be convicted U/s 363/366 IPC. Let us consider the testimony of the prosecutrix to find out whether the accused has committed the said offences.
18. Testimony of prosecutrix: Prosecutrix categorically deposed that she got befriended with the accused and went away with him voluntarily and of her own will. There is no evidence on record that she was enticed by the accused, in any manner, to go Judgment 8 of 12 SC No: 33/15 State Vs. Akash with him. Thus, the factum of forcible marriage or taking away of the prosecutrix for the purpose of said marriage is concerned, there is not even an iota of evidence on record.
19. It has been held in para 8 of the 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 :
"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 traveled 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. ...."
Judgment 9 of 12
SC No: 33/15 State Vs. Akash
20. 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)", where in 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."
21. 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 has happened with her will. In these circumstances, the factum of kidnapping of prosecutrix does not stand proved.
Judgment 10 of 12
SC No: 33/15 State Vs. Akash
22. Nutshell of foregoing discussion is that from the testimony of the prosecutrix as well as other material witnesses examined by it, the prosecution has miserably failed to prove that accused had kidnapped prosecutrix, with intention to compel her to marry him and to force/seduce her to have illicit intercourse with him.
23. Moreover, the prosecutrix has categorically deposed that the accused did not establish physical relationship with her. As per her MLC Ex. PW3/A, she refused for her internal medical examination. There is no medical evidence on record to prove the factum of physical relationship between the accused and the prosecutrix. Hence, the accused cannot be held to be guilty of committing offence of rape or sexual assault on her as punishable under section 4 POCSO Act or under section 376 IPC.
Judgment 11 of 12
SC No: 33/15 State Vs. Akash
24. Accordingly, I acquit accused Akash of the charged offence. Accused is directed to furnish a personal bond in sum of Rs 10,000/- under provisions of Section 437-A Cr.P.C with surety in the like amount.
File be consigned to record room.
Announced in open Court on Day of 7th November 2015.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
Judgment 12 of 12
SC No: 33/15 State Vs. Akash
State Vs. Akash
S.C No. 33/15
FIR No. 1118/14
PS: S P Badli
07.11.2015
Present : Ms. Suchitra Singh Chauhan, Ld. Addl. PP for the State.
Accused from JC (on bail in this case) Ms. Vandana Kumar, Ld Amicus Curaie Matter is fixed for recording of SA. However, there is no incriminating evidence against the accused. Accordingly, recording of statement of accused u/s 313 Cr.P.C stands dispensed with.
Vide separate judgment, the accused stands acquitted for the offence punishable U/s 363/366 IPC & Section 4 POCSO Act. Accused is directed to furnish a personal bond in sum of Rs 10,000/- with surety in like amount under provisions of Section 437-A Cr.P.C.
Bond furnished and accepted.
File be consigned to record room.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
07.11.2015
Judgment 13 of 12