Delhi District Court
State vs Kamal Kishore on 21 January, 2013
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE II, OUTER DISTRICT
ROHINI COURTS : DELHI
Sessions Case No. : 30/11
ID No.: 02404R0342212010
FIR No. : 87/10
P.S. : Shahbad Dairy
U/s 363/366/376 IPC
Date of registration : 13042011
Reserved for Judgment on : 23112012
Judgment Announced on : 21012013
State
Vs.
Kamal Kishore
S/o. Sh. Shyam Lal
R/o. B108, Metro Vihar Phase1,
Holambi Kalan,
Delhi110082.
JUDGMENT :
1. Briefly stated the present FIR was registered on 30.04.2010 in pursuance of order dated 29.04.2010 passed by ld. Metropolitan Magistrate of police station Shahbad Dairy on the complaint u/s. 156 [3] Cr.P.C. filed by the father of the victim (The name of victim is deliberately not being mentioned as she is the victim of sexual offence and she will be referred as "victim" in the Sessions Case No. 30/11 Page 1 of 13 2 judgment) namely Parmanand Mishra. In his complaint, the complainant Parmanand Mishra stated that he is residing at A505, Metro Vihar, Phase1, Holambi Kalan, Delhi110082 along with his family. He has two sons and one daughter (the victim). The age of his daughter is below 18 years. He further stated that according to Jaccha Baccha Rakshak Card, Ration Card and delivery report, date of birth of his daughter is 28.12.96. On 13.03.10, he came to know that Kamal Kishore S/o. Shyam Lal R/o. B108, Metro Vihar Phase1, Holambi Kalan after alluring and enticing the daughter of the complainant kidnapped her and Kamal Kishore after showing the age of victim more than 18 years had married with her in Arya Samaj Mandir.
2. Ld. MM complied with the provisions of section 207 Cr.P.C and committed the case to the Court of Sessions for trial, which in turn was assigned to this Court.
3. On 26.07.2011, charge u/s 363/366/376 IPC was framed against accused to which he pleaded not guilty and claimed trial.
4. In order to prove the guilt of the accused, the prosecution examined as many as 19 witnesses.
5. PW1 is the victim whose testimony I will discuss in the later part of the judgment.
Sessions Case No. 30/11 Page 2 of 13 3
6. PW2 Renu is the mother of the victim who stated the year of birth of victim is 1996. PW2 deposed that she along with her children came to Delhi and started living with her husband at Metro Vihar. She further deposed that her daughter was enticed and induced by accused Kamal, his father and mother and her daughter was forcibly got married with accused Kamal. On 13.03.10, when her daughter did not return, she went to the house of accused to enquire about the victim and on this, accused and his family members started quarreling with her. PW2 further deposed that somebody pushed her and she fell on the doorjam of accused's house and received injury on her head. The report was lodged and her daughter was recovered from the house of accused from where she was sent to Naari Niketan.
7. PW3 HC Yashvir Rathi, duty officer proved the computeried copy of FIR Ex.PW3/A and also proved DD Nos. 34 A, 35A, 8A and DD No. 53B Ex.PW3/B1 to Ex.PW3/B4, respectively.
8. PW4 Parmanand Mishra, complainant stated the date of birth of his daughter at the time of incident was around 13 years. He deposed that on 13.03.10, accused Kamal and his mother Kajal had abducted his daughter from his house by enticing her Sessions Case No. 30/11 Page 3 of 13 4 for marriage with accused Kamal. PW4 further stated that he gave information to the police station about the abduction of his daughter vide complaint Ex.PW4/A. He came to know that accused Kamal Kishore had married with his daughter in Arya Samaj Mandir on the basis of false TC certificate showing her major on the day of marriage. The complainant further deposed that accused Kamal Kishore was arrested from his house on 13.03.10 and his daughter was recovered from the house of accused. His daughter was produced in the court from where she was sent to Naari Niketan. He handed over the school certificates and date of birth certificate of his daughter to the IO. PW4 further deposed that from Narri Niketan his daughter was transferred to Nirmal Chahhya and from Nirmal Chahhya his daughter was got abducted by the family members of accused and kept in their house.
9. PW5 Santosh is the sister of the victim who stated that the date of birth her sister is 28.12.96.
10. PW8 Sh. Sudhanshu Kaushik, M.M. recorded the statement of the victim u/s. 164 Cr.P.C. Ex.PW8/A and proved certificate in respect of correctness of statement Ex.PW8/B, the application for recording of statement Ex.PW8/C and application Sessions Case No. 30/11 Page 4 of 13 5 for supply of statement Ex.PW8/D.
11. PW11 Dr. Florence Almeida proved the MLC of the victim Ex.PW11/A.
12. PW13 W/Ct. Kailashi went to Nirmal Chayha along with Inspector Vikram and took the custody of the victim for bone age examination but the examination could not be done at BJRM Hospital and M.B. Hospital.
13. PW14 SI Gulshan Yadav verified the documents at Modern Junior High School and proved verification report and reply of notice u/s. 91 Cr.P.C. Ex.PX (colly.) and he also proved verification report made from Assistant Development Officer, Paraspur, Distt. Gonda vide Ex.PW14/A.
14. PW15 Ct. Om Prakash along with IO and IO SI Mahender Pratap went to Metro Vihar Phase1, Holambi Kalan in search of accused Kamal Kishore. They reached at the house of accused which was found locked. SI Mahender Pratap made enquries from the vicinity regarding whereabouts of Kamal Kishore and came to know that accused will be available near Old Police Post during evening time. At about 5.45 p.m., they reached at Old Police Post and accused was seen coming from Metro Vihar, Phase2, Block B. He was apprehended and he was Sessions Case No. 30/11 Page 5 of 13 6 interrogated and arrested.
15. PW16 Ct. Gulzari Lal participated in the proceedings conducted by PW10 HC Ravinder Kumar.
16. PW17 ACP Narender Mohan posted at DIU, Outer District entrusted with the investigation of this case and he examined the complainant Parmanand Mishra, his wife Maya Devi @ Renu and his two sons namely Santosh and Dinesh. He made verification regarding date of birth of the victim from Sh. Surender Bahadur Singh, Principal of Children Academy, Paraspur and from Block Development Officer, Paraspur, Gonda and filed the charge sheet.
17. PW18 Inspector Vikram Singh seized the documents which were produced before court and presented to him on the complaint u/s. 156 (3) Cr.P.C. vide seized memo Ex.PW18/A. PW18 also got conducted the ossification test of the victim vide request Ex.PW18/B on 02.06.10.
18. PW19 SI Mahender Pratap was the IO who unfolded the sequence of investigation done by him. He proved notice u/s. 91 Cr.P.C. dated 08.05.10 Ex.PW19/A which he handed over to HC Anil and arrested accused and carried out his personal search vide memo Ex.PW19/B and Ex.PW19/C. Sessions Case No. 30/11 Page 6 of 13 7
19. I have heard ld. Addl. PP for the State who is assisted by ld. counsel for the victim. I have also heard ld. defence counsel and perused the record.
20. It is submitted by ld. Addl. PP that the victim was minor on the day of incident and her consent is of no value. It is further submitted that on the basis of evidence accused can be convicted of the offences in which charge has been framed against him.
21. On the other hand, it is submitted by ld. defence counsel that the prosecution has failed to proved by way of cogent evidence that the victim was minor on the day of incident. It is further submitted by him that the victim left the house of her parents of her own free will and later on she married with the accused. It is further submitted by him that from the marriage of accused and the victim, she has given birth to a child. It is further alleged that material witnesses have not supported the case of the prosecution.
22. In the present case, accused has been charged u/s. 363/366/376 IPC. Before proceeding further, it is to be seen whether the victim was minor or major on the day of incident which is 13.03.10. One of the relevant witnesses is PW1. She has not supported the case of the prosecution and in cross Sessions Case No. 30/11 Page 7 of 13 8 examination by ld. Addl. PP, she stated that she was 19 years of age when she went with the accused. She stated her year of birth is 1990. She proved on record her statement u/s. 164 Cr.P.C. Ex.PW1/A.
23. PW2 is Renu, who is the mother of the victim and she has stated in her testimony that her daughter was born in the year 1996.
24. PW4 is Permanand Mishra who is the father of the victim. He has stated in his testimony that on 13.03.10, his daughter i.e. the victim was aged around 13 yeas. He deposed that he handed over the school certificate and date of birth certificate of her daughter to the IO. In his crossexamination, he stated that his daughter was born at hospital, Prashur, Gram Atta Khas, District Ghonda on 28.12.96. The document in this respect is Ex.PW4/X. He further stated that her daughter i.e. the victim never attended any school in Delhi. He denied the suggestion that he had admitted his daughter in Nagar Nigam Prathmik Vidyalaya located at Metro Vihar, Pocket B, Holambi Kalan, Delhi on 24.08.01 in th class 5 and verification to this by the Principal of the school issued vide Ex.PW4/DA. He admitted that Ex.PW4/DB was handed over to the IO on 16.03.10. He also admitted that Sessions Case No. 30/11 Page 8 of 13 9 Ex.PW4/DC handed over by him to the IO on 16.03.10. He further stated in his crossexamination that all the documents Ex.PW4/DB, Ex.PW4/DC, Ex.PW4/DD and Ex.PW4/DE were obtained by him much earlier and they were kept in his house and handed over the same to the IO on 16.03.10. He further stated in th his crossexamination that his daughter had studied till 8 class. He further stated in his crossexamination that he has mentioned the date of birth of his daughter in the Ration Card as 1991.
25. PW5 is one of the brother of the victim and he deposed that date of birth of his sister i.e. victim is 28.12.96. In his cross th examination, he stated that his sister studied upto 5 standard in a school of Prashur, District Gondha. He further stated that his sister was born in the hospital.
26. PW6 proved the ossification report as Ex.PW6/A and as per the report estimated age of victim was above 18 years and below 20 years.
27. PW7 proved on record the copy of transfer certificate of the victim as Ex.PW7/A. He also produced on record certified copy of Family Register, photocopy of Admission Register and photocopy of birth certificate related to the victim which was seized by IO vide memo Ex.PW7/B.
28. PW9 Surender Bahadur, Principal, Modern Children Academy Sessions Case No. 30/11 Page 9 of 13 10 st School, Gondha deposed that the victim took admission in 1 class on 16.07.01 and as per the school record her date of birth is 28.12.96. He further deposed that the victim took her transfer certificate oon 30.06.06 which is Ex.PW4/DD and also proved subsequent certificate as Ex.PW4/DC.
29. PW10 HC Ravinder Kumar deposed that PW4 Permanand Mishra handed over to him Jaccha Bacha Card and told him that the date of birth of his daughter is less than 18 years. The said card is Ex.PW10/C.
30. PW12 Shri Bhagwan is Manager of New Adarsh Public School. He deposed that transfer certificate issued in the name of victim does not pertain to their school. He produced the admission and school leaving certificate register of the said school w.e.f. 1997 to 2001.
31. PW17 is ACP Narender Mohan. He deposed that as per school record, date of birth of victim was 28.12.96 and the school certificate is Ex.PW4/DC.
32. PW19 is the IO who deposed that he had sent HC Anil to U.P. to serve notice u/s. 91 Cr.P.C. to Principal of New Adarsh School and to collect age proof regarding date of birth of victim. He seized this document vide seizure memo Ex.PW7/A.
33. Out of the relevant documents to decide this issue is now Ex.PW10/C. This is the Jacha Bacha Card which according to PW10 Sessions Case No. 30/11 Page 10 of 13 11 was handed over by father of the victim. The date of birth shown in this card is 28.12.96 but in the fourth column of the card probable date th of birth given is 12/91 which means 12 month and 1991 year. The careful perusal of PW10/C clearly reveals that there is over writing on the card and it appears that 1991 has been converted into 1996. For the sake of convenience the relevant place is marked as Mark X at Jacha Bacha Card.
34. Ex.PW4/DA is the certificate issued by the MC Primary School, Metro Vihar, Holambi Kalan. As per this certificate, the date of birth of the victim as in the school record is 14.03.91, the school in th which the victim was admitted on 24.08.01 in 5 standard. Other document is Ex.PW4/DB which is Scholar Register and Transfer Certificate form. In this document, date of birth is mentioned as 28.12.96. This document pertains to Children Academy, Gondha. In the Ex.PW4/DD again date of birth mentioned as 28.12.96 which is also the document issued from Modern Junior School, Gondha. Ex.PW14/A is a document issued on 16.03.10 by the Assistant Development Officer, Gondha. According to PW14, date of birth was mentioned in this document on the basis of certificate of Modern Junior High School, certified copy of Family Register and photocopy of Admission Register. The basis of mentioning of date of birth in the certificate were the school documents which were produced before the Authorities and on the basis of those documents, her date of birth was Sessions Case No. 30/11 Page 11 of 13 12 registered as 28.12.96. Now, two dates of date of birth are coming on record, one is 28.12.96 and other is 14.03.91. Ex.PW14/DA and Ex.PW10/C are giving the date of birth is 1991 whereas the other document is giving the date of birth as 1996. The date of birth 14.03.91 is also from the Government School situated in Holambi Kalan and PW10/C is also Government document which is the Jacha Bacha Card. So, when two dates of birth are coming on record, I deem it appropriate to discard both of them and look at the ossification report. According to the first report, the victim was above 18 years and below 20 years of age. So, the benefit has to go to the accused. In my opinion, the prosecution has failed to prove the exact date of birth of the victim and on the basis of report Ex.PW6/A, she was above 18 years and below 20 years.
35. Now coming to the charges against accused, for this, testimony of the victim becomes necessary. She has been examined as PW1. She has deposed that she is living with the accused and she has gone with him of her own free will. She further deposed that she had married with the accused and from the wedlock, she has one daughter. She further deposed that her father had lodged a complaint as she has left the house without informing him. She was declared hostile and crossexamined by ld. Addl. PP but nothing incriminating came on record against accused. Statement of the victim u/s. 164 Cr.P.c. is Ex.PW8/B. In the said statement, she has totally supported Sessions Case No. 30/11 Page 12 of 13 13 the accused and has not uttered a single word against him. In said statement, she has stated that she had gone with him of her own free will and later on married with him.
36. The victim has not supported the case of the prosecution. So, in my opinion, prosecution has failed to prove beyond reasonable doubt its case. To sum up, prosecution has not been able to prove by way of cogent evidence that the victim was minor on the day of incident. The victim has not supported the case of the prosecution and categorically stated that she had gone with her own free will. In view of this, it has been held that the victim was major on the day of incident. So, no offences as alleged u/s. 363/366/376 have been proved against accused. Therefore, accused is acquitted.
(Announced in the open Court on 21.01.2013) RAJNISH BHATNAGAR ADDL. SESSIONS JUDGE02 , OUTER DISTICT, ROHINI COURTS : DELHI Sessions Case No. 30/11 Page 13 of 13