Delhi District Court
State vs Tuntun Etc. on 13 August, 2013
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
SC No.70/1/12
FIR No.387/11
U/s 363/366 IPC
PS Dabri
State
Vs.
1. Tuntun s/o Sh. Rambilo
2. Sanjay Yadav s/o Sh.Mantun Yadav
3. Vijay Yadav S/o Sh. Mantun Yadav
.......... Accused
Challan filed on : 05.10.2012
Reserved for Order on : 03.08.2013
Judgment delivered on : 13.08.2013
JUDGMENT
The Brief conspectus of facts are that on 29.11.2011 complainant Shiv Kumar came to PS and got recorded his statement Ex.PW3/A wherein he has averred that on 28.11.2011 his daughter Reema aged about 14/15 years at about 4/5 p.m went to Mother Dairy Booth for fetching milk but she did not returned back. He made search for her but could not succeed. He suspects that someone had taken her away after alluring and enticing. On this statement Ex.PW3/A, IO made his State Vs.Tuntun etc. FIR no.387/11 Page No. 1 of 23 endorsement and got the case registered. The investigation was done. ON 18.1.12 prosecutrix Reema came to PS. Her statement u/s 161 Cr.PC was recorded and thereafter the statement of prosecutrix u/s 164 Cr.PC was got recorded wherein she disclosed the names of accused persons. Thereafter all the three accused persons were arrested. After completion of investigation, challan was filed in the court.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by this court on 04.12.12.
3. The charge against accused Tuntun, Sanjay Yadav and Vijay yadav was framed u/s 363/366/506/368/34 IPC on 23.01.2013 to which all the accused pleaded not guilty and claimed trial.
4. The prosecution in all has examined as many as 12 witnesses.
5. PW1 Ct. Renu has deposed that she alongwith SI Krishan Kumar produced the prosecutrix and her statement u/s 164 Cr.P.C was recorded.
6. PW2 Reema is the prosecutrix and PW3 Shiv Kumar is the father of the prosecutrix.
State Vs.Tuntun etc. FIR no.387/11 Page No. 2 of 23
7. PW4 Sh. Arul Verma is the Ld. MM who recorded the statement of prosecutrix u/s 164 Cr.PC. The statement is Ex.PW4/C.
8. PW5 SI Rajeev Kumar is the FIR recorder who produced hte FIR register. The copy of FIR is Ex.PW5/A.
9. PW6 Ct. Wazir Singh has deposed that accused Tuntun was arrested vide memo ex.PW6/A and his disclosures statement was recorded which is Ex.PW6/B.
10. PW7 Ct.Baljeet Singh is the witness who went to the school where prosecutrix has studied but found that the school named Montessori Shiksha Niketan Jaroli has been closed about 12 years earlier.
11. PW8 SI Akbar Ali has deposed that on 29.11.11 complainant came to PS and he recorded his statement and prepared rukka Ex.PW8/A.
12. PW9 W/HC Usha Rani has deposed that she had taken the prosecutrix to DDU Hospital for her medical examination.
13. PW10 Dr. Narender Solanki has deposed that Dr. Sajid Hussain has prepared the MLC of prosecutrix which is Ex.PW10/A. State Vs.Tuntun etc. FIR no.387/11 Page No. 3 of 23
14. PW11 Dr. Megha has identified the handwriting of Dr.Namit Gupta on MLC Ex.PW10/A on portion Ex.PW11/A.
15. PW12 SI Krishan Kumar is the IO of this case. He has stated that he made search of missing girl and on 18.1.2012 she came to PS. He recorded her statement and thereafter she was sent to DDU Hospital. He got recorded her statement u/s 164 Cr.PC. On 7.2.2012 he arrested accused Tuntun vide arrest memo ex.PW6/A and recorded the disclosure statement Ex.PW6/B. He arrested accused Sanjay Yadav and Vijay Yadav and released them on anticipatory bail. Arrest memo of accused are Ex.PW12/A and Ex.PW12/B. He interrogated the accused persons and recorded the disclosure statements which are Ex.PW12/C and Ex.PW12/D. In cross examination he has stated that Reema herself came to PS. He did not ask the transportation used by the prosecutrix. The accused persons are already known to the prosecutrix Reem as they are living in a same building. One FIR was also lodged by the father of prosecutrix in the year 2011 but it was not lodged in his presence, so he is unable to tell the contents of the same. Sanjay Yadav and Vijay Yadav were not interrogated by the IO as there was no evidence against them.He has not verified the date of birth of prosecutrix from Chowkidar or from Municipal Corporation. He denied the suggestion that prosecutrix Reema was adult and was 19 years old when she left the house herself. No certificate of age proof was produced by the parents of prosecutrix, State Vs.Tuntun etc. FIR no.387/11 Page No. 4 of 23 however, she studied upto 8th class. He admitted that the marriage photographs were produced by the parents of the prosecutrix but he himself not verified the photographs of marriage. He denied the suggestion that marriage was solemnized between accused Tuntun and prosecutrix accordingly to Hindu Rites and Ceremonies and later on the present case was lodged to extort money from the accused Tuntun.
16. The evidence against the accused persons were put to them in their statements recorded u/s 313 Cr.P.C in which they have pleaded their innocence and deposed that they have been falsely implicated in this case in connivance with the father of prosecutrix. Accused Tuntun has taken the plea that the marriage was solemnized with the permission of prosecutrix and her mother alongwith her relatives. The prosecutrix herself gave her consent for the marriage and she was major at that time i.e. she was about 19 years old at that time. The accused also opted to lead defence evidence.
17. DW1 Smt. Kamla is the mother of prosecutrix and she has deposed that Reema was 19 years of age at the time of incident. She herself left the house as she was threatened by them not to talk with accused Tuntun. Later on after two months she herself came back. In cross examination she has stated that she did not depose in her chief the age of her daughter Reema as 19 years but now she has been 18 years. State Vs.Tuntun etc. FIR no.387/11 Page No. 5 of 23 Again said now she is above 18 years. She cannot tell any reason as to why her daughter was threatened by them not to talk to Tuntun.
18. DW2 Vishal has deposed that prosecutrix Reema is her sister in law(Sali). Guddi, eldest daughter of Reema is his wife. He has four children. Reema is about 19 years old. Reema left the house herself as she was scolded by her father on the ground that she was having intimacy with accused Tuntun. Photographs mark A to C are her sister in law Reema. Reema came back to her house on her own after two months. She has not made any complaint to any authority regarding ill treatment. Thereafter the case was fixed for final arguments.
19. I have heard the Ld. APP for the State as well as Ld. counsel for the accused and perused the testimonies of all the PWS, DWS and exhibited documents carefully.
20. During the course of arguments Ld. Counsel for the accused persons has drawn the attention of the court on the statement of prosecutrix and her father and stated that prosecutrix was major at the time of incident and that the prosecution failed to prove that she was minor at the time of present case incident. He has submitted that prosecutrix herself accompanied accused Tuntun and the marriage was State Vs.Tuntun etc. FIR no.387/11 Page No. 6 of 23 solemnized with due consent of the prosecutrix. It is further submitted that now they are living as husband and wife. So, the accused persons may kindly be acquitted in this case.
21. On the other hand, it has been submitted by the Ld. APP for the State that the prosecution has proved on record that prosecutrix was minor at the time of incident and therefore even if consent is revealed from the statements of witnesses, it is immaterial. He has drawn the attention of the court on the statement of accused recorded u/s 313 Cr.PC and submitted that the accused himself has admitted in the statement that he has taken away the prosecutrix. So, the accused persons may kindly be convicted and punished as per law.
22. On analyzing the testimonies of witnesses, it is revealed that PW2 Reema is the prosecutrix in this case & PW3 Shiv Kumar is the father of prosecutrix. PW2 Reema and PW3 Shiv Kumar are the main star witness of the prosecution and the case of the prosecution hinges on their testimonies. Charge has been framed in this case u/s 363/366 IPC. PW2 Reema has deposed in her examination in chief that they are four sisters and two brothers. She is the youngest daughter of her parents. She does not remember the date, month or year, however, one year earlier, one day she was returning to her home after taking milk from mother dairy booth. On the way, all the accused namely Tuntun, Vijay and State Vs.Tuntun etc. FIR no.387/11 Page No. 7 of 23 Sanjay met her with their vehicle and they forcibly took her to old Delhi railway station in the said vehicle. She asked them to let her make a call to her mother but they did not allow her for the same and threatened her to kill. From the old Delhi railway station the accused had taken her to their village in Bihar, the exact name of which she does not recollect and perhaps its name was Samastipur. She was kept there for about one and half month against her wish. Accused Tuntun Yadav had married with her forcibly. A case was got registered by her father. Accused Tuntun brought her to PS Dabri. Police had enquired from her. She does not know what happened thereafter. She does not know anything more about this case. She was never brought by the police to the court. She was declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein she has stated that she does not know if it was 28.11.2011 on which day the incident had happened. She admitted that the name of the village of accused is Baripura. She admitted that accused Sanjay and Vijay had not gone with her and accused Tuntun to their village in the train and they had left the railway station after leaving her and Tuntun there. She admitted that she was taken to DDU Hospital by the police where she was examined by the doctor. She identifies her signatures on statement recorded u/s 164 Cr.PC Ex.PW2/A. She identifies the photographs of her marriage with accused Tuntun which was done by him forcibly. She cannot say if her date of birth is 16.08.1996. In cross examination she has stated that she know the accused persons as they are State Vs.Tuntun etc. FIR no.387/11 Page No. 8 of 23 residing in the same building where she is residing. The accused persons met her on the alleged date at about 4 p.m. She raised noise when the accused were taking her in their vehicle. Nobody else came to rescue her from the clutches of the accused. They reached railway station at about 5.30 p.m. After getting down from the car, she was made to sit in the train for Bihar. She alongwith Tuntun Yadav reached Bihar at about 1.30 p.m next day. She raised noise for help in the train also but no passenger came forward to rescue her from the accused. The mother dailry booth is heavily crowded near the place from where she was taken. Villagers were present at the time of marriage with accused. She might have told her age as 19 years to the police at the time when document Ex.PW2/DA was prepared but she cannot say with surety. She is illiterate and never studied in school. It is correct that marriage was solemnized in a temple in the presence of priest of the temple. She denies that she had gone with accused willingly. She denied that she had love affairs with accused and for that reason she had gone to Bihar with him for marriage. She admitted that accused Tuntun brought her back to Delhi and took her to the police station Dabri.
23. PW3 Shiv Kumar is the father of prosecutrix and he is complainant in this case. He has stated that on 28.11.2011 Reema had gone to mother dairy booth for bringing milk at about 4 p.m but she did not return. He made search for her but could not trace her. Next day he State Vs.Tuntun etc. FIR no.387/11 Page No. 9 of 23 reported the matter to the police and he got recorded his statement Ex.PW3/A. He has further deposed that after two months, police informed him that his daughter Reema had come. He went to PS and found Reema there. He was also declared hostile by the prosecution and cross examined by the Ld. APP for the state wherein he has stated that the date of birth of his daughter Reema may be 16.08.96 vol. He cannot say with certainty as no Kundli etc was got prepared at the time of her birth. He admitted that during investigation he had given the school leaving certificate of his daughter Reema to the police. He cannot identify his signatures on the certificate due to his poor vision. He admitted that at the time of incident Reema was 1415 years instead of 16 years. In cross examination he has stated that the name of eldest daughter is Guddi. She was married about 12 years earlier and at the time of marriage she was about 1516 years old. He has six children. His second child aged about 26 years. His youngest child who is a son is aged about 12 years. Reema had studied upto 5th standard. His daughter was aged about 7 years when she joined the school for the first time. He cannot tell in which year she was got admitted in the school firstly. He admitted that he had told the date of birth of his daughter Reema to the police while disclosing the description of his daughter at the time of filling the missing person form. He know accused Tuntun. He denied the other suggestions put by the ld. Defence counsel during cross examination.
State Vs.Tuntun etc. FIR no.387/11 Page No. 10 of 23
24. Considering the evidence available on file, the most important evidence to be looked into is the age of the prosecutrix at the time of her alleged missing because her age plays a decisive role in relation to the charge framed in this case u/s 363/366 IPC. The contention of the Ld. APP for the State is that the age of the prosecutrix was below 18 years. I have also considered this aspect of case. PW3 Shiv Kumar in his initial complaint Ex.PW3/A has stated that age of his daughter as 14/15 years. In statement recorded u/s 164 Cr.PC and MLC Ex.PW11/A, the age of the prosecutrix is mentioned as 16 years. In seizure memo if girl Reema, the age is mentioned as 19 years. In the photocopy of school leaving certificate, though this certificate has not been proved, the date of birth is mentioned as 16.8.96. PW2 Shiv Kumar has admitted that his daughter was 1415 years at the time of incident instead of 16 years while DW1 Kamla who is wife of PW1 has stated that her daughter was 19 years of age at the time of incident. DW2 Vihsal has also stated the age of prosecutrix as 19 years. Section 363 IPC provides for the punishment for kidnapping. Kidnapping is definded u/s 361 which reads as under: 'Kidnapping from lawful guardianship - Whoever takes or entices any minor under sixteen years of the 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 unlawful 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. Explanation - The words 'lawful guardian' in this section include any person lawfully entrusted with the care or custody of such minor or other person. State Vs.Tuntun etc. FIR no.387/11 Page No. 11 of 23 Exception - This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who is good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.'
25. A bare perusal of the above section would show that in order to constitute kidnapping, it was necessary that there should be either taking away of minor from the custody of lawful guardian without consent of the lawful guardian or enticing the minor so that minor leaves the custody of lawful guardian under enticement. In this case the age of the prosecutrix is different on different documents/statements. PW12 SI Krishan Kumar in cross examination has stated that he has not verified the date of birth of the prosecutrix from chowkidar or from Municipal Coporation. He has further stated that no age proof was produced by the parents of the prosecutrix, however, she studied upto 8th class. PW7 Ct. Baljeet had gone to Swami Shambu Ashram Montessori Shiksha Niketan, Jaroli, Nawadi, District Hardoi, UP for verification of the certificate of Reema and he came to know that the aforesaid school had already been closed about 12 years earlier. PW7 was examined in the court on 6.3.2012 which makes it clear that the said school would have closed in the year 2000. But perusal of the school leaving certificate shows that it was issued on 30.07.2001 which create doubt about this certificate. The doubt about certificate is further strengthened by the cross examination of prosecutrix as she has stated that she is illiterate and never studies in school. In this State Vs.Tuntun etc. FIR no.387/11 Page No. 12 of 23 case the prosecution has failed to prove the certificate of age of prosecutrix. Even no ossification test of the prosecutrix was got conducted to establish her age. Therefore, the prosecution has failed to bring on record any reliable and cogent evidence regarding age of the prosecutrix. 'Enticing' is defined in Chambers Twenty First Century Dictionary as to 'temp or persuade by arousing hopes or desire by promising a reward'. In Wester Dictionary 'enticement' is defined as to 'cause a person to cease resisting and to do as one wishes by offering some inducement'.
26. In "Shyam & Another Vs. State of Maharashtra", 1995 Criminal Law General 3974, the prosecutrix was a grown up girl, though she had not touched 18 years of age. She claimed during trial that she was kidnapped under threat. The evidence produced during trial showed that she was seen going on the bicycle of the accused. The Hon'ble Supreme Court noted that it was not unknown to her with whom she was going and therefore, it was expected of her then to jump down from the bicycle or put up the struggle and in any case raise an alarm to protect herself. As no such steps were taken by her, the Hon'ble Supreme Court felt that she was a willing party to go with the appellants of her own and, therefore, there was no taking out of the guardianship. The appellants were acquitted of the charge under Section 366 of IPC.' State Vs.Tuntun etc. FIR no.387/11 Page No. 13 of 23
27. In "State of Karnataka vs. Sureshbabu", 1994 Crl.L.J.1216(1), it was found that the girl went with the accused voluntarily. It was held by the Hon'ble Supreme Court that the requirement of Section 366 of IPC is that taking or enticing away a minor out of the keeping of the lawful guardianship was an essential ingredient of the offence of kidnapping. It was held that in such a case, it is difficult to held that the accused had taken her away from the keeping of her lawful guardian and something more has to be shown in a case of this nature, like inducement.
28. In "Mahabir vs. State" , 55(1994)DLT 428, the appellant and the prosecutrix were known to each other. The appellant took the prosecutrix to a place outside Delhi where they stayed for about fifteen days and had sexual intercourse with each other. The appellant was convicted under Sections 366 and 376 of I.P.C. A learned Single Judge of this Court noticed that she had gone to Railway Station, had stood there with the appellant who also went to purchase tickets and then she had travelled with him in a compartment shared by other persons. She had then gone to a house in a tonga and yet she did not lodge any protest and made no attempt to flee despite having ample time and opportunity. The learned Single Judge noted that on the day of reckoning, she surely had crossed mark of sixteen years and since she was all along a willing party, the appellant was acquitted of both the charges against him. Thus, State Vs.Tuntun etc. FIR no.387/11 Page No. 14 of 23 despite the prosecutrix being less than eighteen years of age, the appellant was acquitted not only of charge under Section 376 but also of the charge under Section 366 of I.P.C.
29. In "Piara Singh vs. State of Punjab", 1998(3) Crimes 570, the High Court found that the prosecutrix was more than sixteen years of age at the time of this incident, though, the case of the prosecution was that she was fourteen years of old at that time. Since the High Court came into conclusion that no force was used in having sexual intercourse with her, the appellant was acquitted not only of charge under Section 376 but also of charge under Section 366 and 366 A of Indian Penal Code.
30. In "Bala Saheb vs. State of Maharashtra", 1994 Criminal Law General 3044, it was found that the prosecutrix accompanied the appellant/accused from her village and stayed with him for two to three days. It was held that these circumstances clearly show that offence under Section 363 or 366 of I.P.C. was not made out.
31. In case Law Vivek Kumar @ Sanju and Anjali @ Afsana VS. The State, Govt. of NCT of Delhi and Tahir Ali it is stated in head note that : 'Criminal kidnapping Sec. 363 IPC for quashing FIR u/s 363 IPC alleging commission of offence of kidnapping of petitioner no.2 by petitioner no.1 Held, for constituting kidnapping it was State Vs.Tuntun etc. FIR no.387/11 Page No. 15 of 23 necessary that there should be either taking away of minor from custody of lawful guardian without their consent or enticing minor so that minor leaves custody of lawful guardian under enticement reason behind leaving house by petitioner no.2 was fear and threat to her life and not enticing away. Falling in love does not amount to enticing - further providing shelter to driven away girl not amount to kidnapping or enticing petition allowed'.
32. In case law Mohar Singh @ Pappu Vs. State, MANU/DE/2138/2002 it is stated in head note that : 'Criminal - Benefit of doubt - Sec. 34, 363, 366 and 376 of IPC, present appeal has been filed against order whereby appellants are convicted for offence punishable u/s 34, 363, 366 and 376 IPC - Held, prosecution has failed to prove with certainty that age of prosecutrix was below 18 years at time of incident - Further, statement of prosecutrix was not reliable as her father himself stated that girl had taken away some clothes and a sum amount which shows that she had willingly gone with accused - Not only that prosecutrix did not raise any alarm or protest for two - three days during which period she remained in Chanderlok Park as stated by her - She could raise alarm to attract attention of public - In these circumstances it can be safely concluded that she roamed with accused persons of her own accord and since she has not been proved to be minor, accused persons are entitled to be given benefit of doubt - Accordingly, appeals are acceptedImpugned order of conviction and sentence is hereby set aside appellants are acquitted.
33. In case law S Varadarajan Vs. State of Madras, MANU/SC/0081/1964 it is stated in head note that : State Vs.Tuntun etc. FIR no.387/11 Page No. 16 of 23 'the case dealt with the meaning of take out of keeping of the lawful guaradian under sec 361 IPC It was held that where a minor girl was allegedly taken away by the accused persons from the protection of her father and where the girl had a capacity to know what she was doing and had voluntarily joined the accused, then in such case it could not be said that the accused had taken her away from the protection of her lawful guardian within the meaning of sec.361 of the Code'.
34. In case 2011 Legal Eagle (DHC) 720 titled Sunil Kumar Sharma Vs. State NCT of Delhi it is stated in head note that: 'IPC 1860 Sections 366 & 376 - Abduction and rape - Conviction - Sustainability of - Consent - age of prosecutrix concealed - prosecutrix has ample opportunity to raise alarm but she failed - Clear case of consensual eloping - Conviction not sustainable - hence, set aside'.
35. In the present case admittedly no date of birth certificate from the Municipal Corporation has been brought on record nor school certificate has been proved. In similar circumstances, Hon'ble Punjab and Haryana High Court in Sunil Kumar @ Bholu v. State of Haryana 2008 (3) RCR Criminal 531 has held that although the date of birth reflected in the school leaving certificate or school admission register is a relevant piece of evidence but it would be unsafe to rely on the same in the face of other infirmities. In the instant case, first of all the school leaving certificate has not been proved. Secondly, it shows date of birth as 16.8.97 and date of admission as 2.7.99 while date of leaving the State Vs.Tuntun etc. FIR no.387/11 Page No. 17 of 23 school is 30.7.2001 but as per statement of PW7 the school was closed 12 years back i.e. in the year 2000. Further the prosecutrix is shown to have studied upto 5th class. From the year 1999 to 2001, it is a matter of general knowledge that no one can pass five classes in two years. Further the prosecutrix herself has admitted that she has never gone to school. So, it becomes very doubtful that the prosecutrix was really born on 16.08.1996. Since no ossification test has been done to determine the bone age of the prosecutrix, the benefit of doubt must go to the accused.
36. In case Shyam & Ors Vs. State of Maharashtra (supra), it is stated that the prosecutrix was a fully grown up girl may be one who had yet not touched the age of 18 years but still she was in the age of discretion, sensible and aware of the intention of the accused therein 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. Thus it was expected of her to jump down from the bicycle or put up a struggle and in any case raise alarm to protect herself. Since no such step was taken up by her she seemed to be a willing party to go with Shyam the appellant therein on her own and that there was no 'taking' out of guardianship of her mother'.
37. In the present case, the age of prosecutrix PW2 Reema could not be ascertained with certainty. However, as per documents she was between 16 to 18 years of age. She was very well aware as to what she was State Vs.Tuntun etc. FIR no.387/11 Page No. 18 of 23 doing. She was a sound minded girl. She went to fetch milk but on the way joined the company of accused persons. She sat in their vehicles and went to railway station. She has made allegations that they put her forcibly in the vehicle. The time of incident is between 4 to 5 p.m. As per her own admission at that time there was considerable gathering at the mother dairy booth. There must have a number of people going and coming. Her allegation that none came to help her is unbelievable. The vehicle of the accused persons might have stopped at red lights. But she never tried to tell anyone at the red light. Thereafter they reached at railway station and from their accused Tuntun had taken her inside the railway platform. He must have also purchased the ticket and kept her standing there in the crowd. But she never tried to escape. She has also not contacted any police officer/ticket collector/other staff posted at the station that accused is taking her away forcibly. She has stated that she raised alarm in the train but no passenger came to rescue her. But she has never reported to ticket checker who must have visited them for checking the ticket. She was fully grown up girl may be one who had yet not touched the age of 18 years but still she was at the age of discretion, sensible and aware as to what she is doing. This fact is manifest from her deposition recorded in the court as well as statement u/s 164 Cr.PC recorded by the Ld. MM. She has stated that she know accused persons as they are residing in the same building where she was residing. DW2 Vishal has stated that Reema was scolded by her father on the ground that she was having intimacy with State Vs.Tuntun etc. FIR no.387/11 Page No. 19 of 23 accused Tuntun. DW2 Kamla who is the mother of prosecutrix Reema has stated that Reema herself left the house as she was threatened by them not to talk with accused Tuntun. From the deposition of witnesses, it seems that the prosecutrix was in love with accused Tuntun and she had accompanied him on her own free will which does not amount to enticing. Accused has provided her shelter and they both married together. The photographs of marriage on file clearly indicate that prosecutrix herself was agreed for marriage as she is standing happily with accused Tuntun where other family members are also blessing them.
38. In Madho Ram and another V The State of U.P., AIR 1973 SC 469 it has been observed:
The prosecutrix cannot be considered to be an accomplice. As a rule of prudence, however, it has been emphasised that Courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person,accused of abduction or rape, has not been falsely implicated. The view that, as a matter of law, no conviction without corroboration was possible has not been accepted. The only rule of law is the rule of prudence namely the advisability of corroboration should be present in the mind of the Judge or the Jury, as the case may be. There is no rule of practice that there must in every case, be corroboration before a conviction can be allowed to stand.
39. Charge has been framed u/s 363/366/506/368/34 IPC. Prosecutrix has stated that she asked the accused to let her make a call to her mother, but they did not allow her for the same and threatened her to State Vs.Tuntun etc. FIR no.387/11 Page No. 20 of 23 kill. It is clear from the deposition of prosecutrix that she was threatened by the accused when she asked to make a call to her mother. She has not alleged that thereafter she was also put under threat by the accused persons. She accompanied the accused to Old Delhi Railway Station and thereafter she went to Bihar in train. At railway station as well as in train there used to be huge crowd. But she never tried to approach anyone at any place that accused is taking her away forcibly or extended any threatening. She has even not stated that she was ever threatened on the way by the accused. Therefore section 506 IPC is not made out in this case.
40. Section 368 contemplates - Wrongfully concealing or keeping in confinement, kidnapped or abducted person - In the present case, the prosecutrix went with accused on 28.11.2011 and she was seized vide seizure memo Ex.PW2/DA on 18.01.2012. She remained with accused Tuntun for about one month twenty days. The above discussions shows that she herself had accompanied the accused with her own free will and gave her consent for marriage since she has never raised any objection. She herself has stated that accused Tuntun brought her to PS Dabri where police made enquiries from her. Accused Tuntun in his statement recorded u/s 313 Cr.PC has also taken the plea that he himself produced the prosecutrix before the police. He has also stated that the marriage was solemnized with the permission of prosecutrix and her State Vs.Tuntun etc. FIR no.387/11 Page No. 21 of 23 mother alongwith her relatives. DW2 Vishall has stated that Reema has not made any complaint to any authority regarding ill treatment. The prosecutrix herself gave her consent for the marriage and she was major at that time i.e. she was about 19 year old at that time. It is therefore crystal clear that accused Tuntun has himself produced the prosecutrix before the Police of PS Dabri and marriage was solemnized with the consent of prosecutrix since she never objected for the same. Since accused Tuntun has himself produced the prosecutrix before the police, it cannot be said that the prosecutrix was wrongful concealed.
41. In view of the evidence on record and specifically when the prosecutrix and accused have married together and mother of prosecutrix examined as DW1 by accused in his defence who has stated that her daughter was aged about 19 years and that she herself left the house as she was threatened by them not to talk with the accused Tuntun and in consideration of marriage photographs, it cannot be said that the prosecutrix was taken away forcibly or that she was forced to marry accused Tuntun. PW2 Reema has admitted that the marriage was solemnized in a temple in the presence of priest of the said temple. But she never objected or stated to the said priest that the marriage is being solemnized against her wish. PW12 IO SI Krishan Kumar has admitted in cross examination that the marriage photographs were produced by the parents of the prosecutrix which clearly indicate that the marriage State Vs.Tuntun etc. FIR no.387/11 Page No. 22 of 23 between accused Tuntun and prosecutrix was solemnized with due consent of prosecutrix as well as her parents. PW12 has further stated that Sanjay Yadav and Vijay Yadav were not interrogated by the IO as there was no evidence against them. I am therefore of the view that prosecutrix was a fully grown up girl of about 18 years as on the date of incident, sensible and she voluntarily accompanied the accused on her own free will and married with accused Tuntun and therefore accused persons are entitled for the benefit of doubt in this case. I therefore give the benefit of doubt to accused Tuntun, Sanjay Yadav and Vijay Yadav and they are acquitted for the commission of offence punishable u/s 363/366/506/368/34 IPC.
42. All the three accused are on bail. They are directed to furnish fresh bail bond for a sum of Rs.25,000/ each with one surety in the like amount each as per provisions of section 437A Cr.PC. File be consigned to record room.
Announced in the open Court on 13.08.2013.
(SURESH CHAND RAJAN) ADDL.SESSIONSJUDGE/ SPECIAL JUDGE(NDPS) (South West District) Dwarka Courts/ NEW DELHI State Vs.Tuntun etc. FIR no.387/11 Page No. 23 of 23