Delhi District Court
State vs . Chiranji Lal on 30 August, 2014
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 199/13)
Unique ID case No. 02404R0350892013
State Vs. Chiranji Lal
FIR No. : 123/13
U/s : 363/366/376 IPC
& 3/4 POCSO Act
P.S. : South Rohini
State Vs. Chiranji Lal
S/o Sopal
R/o B199, Sector25, Rohini,
Delhi
Date of institution of case 30.11.2013
Date on which, judgment has been reserved 30.08.2014
Date of pronouncement of judgment : 30.08.2014
JUDGMENT:
1. Briefly stated the case of the prosecution is that on 28.03.2014, victim P went missing from the house of her parents at about 10.00 am. Her father Ram Charan went to PS South Rohini and filed a complaint, wherein, he stated that his daughter P, aged about 17 years had been missing from their house since 28.04.2013 and that he had been unable to trace her out despite efforts. He expressed his suspicion that accused Chiranjee Lal, who was working as a contractor had enticed his daughter to go with him. On basis of this complaint, a S.C. No. 199/13 : State vs. Chiranji Lal : Page 1 of 12 case u/s 363 IPC was registered against the accused and investigations thereof, were marked to SI Manoj Kumar. During the course of investigations, IO got flashed wireless message to all the SHOs, in Delhi and SSPs in all over India. He also gave information regarding missing of the victim girl to NCR, CIS, CBI etc. Despite efforts made by the IO, there was no clue about the victim and the accused.
On 03.05.2014, complainant Ram Charan again met IO and informed him that his daughter was with accused Chiranjee Lal at his native village at Bir Pur, Distt. Mahoba, Rajasthan. A team of police officials comprising of SI Manoj Kumar, W/Ct. Pooja and Ct. Abhay left for Bir Pur, along with the IO on 05.05.2013 and the victim girl was recovered from the village of the accused. She was duly identified by the complainant. The accused was, however, not traceable. The victim was brought back to Delhi and was got examined at BSA Hospital on 06.05.2013. During the course of investigations, IO obtained school certificate of the victim from concerned school, as per particulars given by her father, wherein the date of birth of the victim was mentioned as 06.07.1995. The IO also got the statement of the victim recorded u/s 164 Cr.P.C and thereafter, produced her before concerned CWC, from where, she was taken to Nirmal Chhaya as she refused to go with her parents. The accused could only be arrested on 07.08.2013 and he too was got medically examined. After completing the investigations, the charge sheet was prepared and was filed in the court.
2. Upon committal of this case to the court of Sessions, charges for the offence under Sections 363/366 IPC and Section 3 (a) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POSCO Act) punishable u/s 4 of POCSO Act, alternative u/s 376 (2) (n) were framed against the accused Chiranji S.C. No. 199/13 : State vs. Chiranji Lal : Page 2 of 12 Lal, however, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
3. In support of its case, prosecution has examined six witnesses.
4. The PW1, Shyam Veer, teacher, produced record from Nigam Pratibha CoEd. School, situated at PocketFG, Sector03, Rohini, Delhi, wherein victim child/prosecutrix was admitted in first class. The PW1 proved copies of admission form and affidavit submitted by Sh. Ram Chander, father of the victim child as Ex. PW1/A and Ex. PW1/B, and stated that as per the school record, the date of birth of the victim/prosecutrix was 06.07.1995. The witness also proved the relevant entry in admission register qua the victim/prosecutrix as Ex. PW1/C and the original certificate issued by Principal of the said school as Ex. PW1/D.
5. The PW2, Dr. Kaustuv Kiran, proved the MLC of the prosecutrix as Ex. PW2/A, by identifying the handwriting and signatures of Dr. Rajesh, the then J.R, who had examined the patient/victim child, under his supervision and deposed regarding the same.
During crossexamination, the PW2 stated that the particulars of name, age etc., of the patient was mentioned in OPD card and that the said card was got prepared by the police officials at the Emergency desk. He further showed his lack of knowledge whether age of the patient was mentioned correctly on the MLC.
6. The PW3, Dr. Ruhi, is SR Gynae and the prosecutrix was referred to her on S.C. No. 199/13 : State vs. Chiranji Lal : Page 3 of 12 06.05.2013 vide MLC Ex. PW2/A for gynecological examination and deposed that the patient had refused for her gynecological examination.
7. The PW4, Sh. Ram Charan, is the father of the victim child. He deposed that his only daughter P went missing from the house. The PW4 could not tell the date, month and year thereof, but stated that at that time, she was aged about 20 years. The PW4 further stated that he tried to search for his daughter, but could not trace her out and that thereafter, he went to the PS South Rohini and filed his complaint, PW4/A, in which, he had expressed his suspicion on accused Chiranjee Lal, for having taken away his daughter, because he was told by the neighbour of the accused that accused had taken his daughter to Rajasthan and that he passed on this information to the police official. He further deposed that after three days, he went to Rajasthan with police officials in a private car, and recovered his daughter, vide recovery memo Ex. PW4/B, from Dir Pur, native village of the accused and that at that time, accused was not found present at his house. He further deposed that thereafter, his daughter P was brought to Delhi and after receiving information from him, the IO had obtained school certificate Ex. PW1/D from Nigam Pratibha CoEd School at Rohini. He further stated that when, his daughter P was recovered, she informed them that she had gone with the accused of her own free will and had got married with the accused and that at that time, he was angry that his daughter P had married accused of her own, without our consent, but thereafter they accepted her marriage with the accused.
The PW4 was declared hostile and was crossexamined by learned Addl. PP, during which, he termed it correct that in complaint Ex. PW4/A, he had mentioned that age of his daughter P as 17 years, however, he volunteered to state S.C. No. 199/13 : State vs. Chiranji Lal : Page 4 of 12 that he had mentioned it so as he was advised by his relatives to do so, but in fact, his daughter P was aged about 20 years at that time. He further termed it correct that her daughter had been admitted in a Govt. School in first class, but the witness could not tell the name of the school. He volunteered to state that his daughter had gone to the school only for 2/3 days. He further termed it correct that he had himself got his daughter admitted in the school, but he denied his signatures on the admission form Ex. PW1/A and affidavit Ex. PW1/B and stated that he did not know how to write his name. He further clarified that his name was Ram Charan and not Ram Chander as was mentioned in the school record and that he did not have any alias by the name of Ram Chander. He denied that he had another name i.e. Ram Chander or that the record from the school, produced before the court and exhibited as Ex. PW1/A to Ex. PW1/D, pertained to his daughter P or that he was deposing falsely having compromised the matter with the accused after marriage of his daughter with him. (accused)
8. The PW5, Pushpa is the prosecutrix in the present case. She deposed that she knew the accused since several years, as he was a contractor and she had been working as a labour under him. She further deposed that she started having love affair with the accused and got married with him in the year 2012, but she did not tell about it, to her parent, out of fear. She further deposed that on 28.04.2013, she went with the accused, to his native village at Bir Pur, Rajasthan, after informing her parents and that her parents thought that she was joking and did not say anything to her. She further deposed that after 2/3 days, her parents came to the village of the accused, along with police officials, and brought her back to Delhi. She further deposed that she had got married with the accused in the court and S.C. No. 199/13 : State vs. Chiranji Lal : Page 5 of 12 stayed with him as his wife of her own free will and consent and that the accused had not forced her in any manner, nor had he (accused) acted against her wishes. She further deposed that at that time, accused Chiranji Lal was already married and was having two daughters from his first wife and that she had married the accused with the consent of his first wife as she was unable to bear him any more children and that she married accused for progression of his family and that she was having one daughter from the accused. She further deposed that she had not gone to the school, even for a single day, however, her parents had got her name written in the school. She further deposed that she was aged about 20 years, when she had finally left her parents house to join the accused.
9. The PW6, SI Manoj Kumar is the investigating officer of the present case and he deposed that on 30.04.2013, PW4/complainant Ram Charan came to PS and gave a complaint Ex. PW4/A regarding missing of his daughter and that on the said complaint, he made endorsement Ex. PW6/A, prepared rukka and handed it over to duty officer HC Ram Kishore, for registration of the FIR and that the duty officer got the FIR registered through computer operator. He proved the computerized copy of FIR as Ex. PW6/B and the certificate u/s 65B of I.E. Act as Ex. PW6/C. He further deposed that he tried to trace out the victim and took the usual steps required in case of missing persons, to trace out the prosecutrix i.e. sending wireless messages to all the SHOs in Delhi and SSPs all over the India, giving information regarding missing of the victim girl at NCRB, CIC/CBI etc., and proved the documents in this regard as Ex. PW6/D. (colly). He further stated that despite efforts, there was no clue about the victim and the accused. The PW6 further deposed that on 03.05.2013, complainant Ram Charan came to him and S.C. No. 199/13 : State vs. Chiranji Lal : Page 6 of 12 informed him that his daughter was with accused Chiranjee Lal at his native village at Bir Pur, Distt. Mahoba, Rajasthan and that on 05.05.2013, he left for Bir Pur along with complainant Ram Charan and W/Ct. Pooja and Ct. Abhay, after taking necessary permission, and reached at Bir Pur in the evening on 05.05.2013, and got an arrival entry made at PS Mahua. He further deposed that as he did not get any staff from the said PS, he proceeded to the village of accused, along with the father of the victim girl and that on reaching the village, the victim was recovered upon identification by complainant Ram Charan vide memo Ex. PW4/B and that he recorded the statement of the victim girl u/s 161 Cr.P.C in the said village. He further stated that at that time, accused was not traceable and that he prepared site plan Ex. PW6/E at the pointing out of the complainant and thereafter, left for Delhi on that night itself. He further deposed about getting the victim examined at BSA Hospital vide MLC Ex. PW2/A and stated that the victim refused for her gynecological examination. He further deposed about collecting the school certificate Ex. PW1/D of the prosecutrix, from her school, as per particulars given to him by the father of the victim girl and stated that as per the school certificate, the date of birth of the victim was 06.07.1995 and hence, the prosecutrix was a minor. He further deposed about getting the statement of victim recorded u/s 164 Cr.P.C vide Ex. PW6/H. He proved his application for recording of the statement as Ex. PW6/F and application for getting the copy of the said statement as Ex. PW6/G, respectively. He further deposed that since the victim refused to go with her parents, she was taken to Nirmal Chhaya and was produced before concerned CWC on the next date, from where, she was again directed to be kept at Nirmal Chhaya, vide order Ex. PW6/I, passed by the CWC. He further deposed about getting the NBWs issued against the accused and about adding of the Sections S.C. No. 199/13 : State vs. Chiranji Lal : Page 7 of 12 366/376 IPC and 3 and 4 of POCSO Act in the present case and about arrest of the accused on 07.08.2013, vide arrest memo Ex. PW6/J and his personal search memo vide memo Ex. PW6/K. He further stated that on the day, when complainant had come to PS and filed complaint Ex. PW4/A, he had prepared site plan Ex. PW6/L of the place from where, the victim had gone missing. He also proved the copy of DD no. 16A, vide which,he had left for Rajasthan, as Ex. PW6/M.
10. In the present case, total 12 witnesses were examined by the prosecution, out of which 6 witnesses were examined by the prosecution. From the testimonies of PW4 Ram Charan and PW5 Prosecutrix P, nothing incriminating came on record against the accused. Further, since there was no other witness cited or examined by the IO, who could link the accused with the commission of offence, no useful purpose would have been served by recording further evidence. Accordingly, prosecution evidence was closed. Statement of accused was also dispensed with for want of incriminating evidence.
11. Arguments have been addressed by learned Addl. PP. None appeared to address arguments on behalf of the accused.
12. I have heard arguments addressed by learned Addl. PP and also perused the record, carefully.
13. In the instant case, the prosecutrix was at the verge of maturity, when she voluntarily eloped with the accused. The parents of the prosecutrix were well S.C. No. 199/13 : State vs. Chiranji Lal : Page 8 of 12 aware of her love affair with the accused and from the examinationinchief of the prosecutrix as well as of her parents, it is clearly brought out that prosecutrix was neither restrained nor confined forcibly by the accused, who ever otherwise did not influence her decision in any manner. The prosecutrix has already married accused and the marriage between the prosecutrix and the accused has been duly proved by the statements of PW4 and PW5. Ld. Addl. PP has contended that as per the school record i.e. certificate issued by the PW1, the date of birth of the prosecutrix is 06.07.1995 and since the prosecutrix was less than 18 years of age, her consent is immaterial and accused is liable to be convicted for the charged offences.
14. In order to prove that the prosecutrix was a 'child', less than 18 years of age, the prosecution has examined PW1 Shyam Veer, who produced the record, from Nigam Pratibha CoEd. School, Sector03, Rohini, Delhi, wherein the victim child/prosecutrix was admitted in first class and proved the admission form as Ex. PW1/A, affidavit submitted by Sh. Ram Chander as Ex. PW1/B, relevant entry in admission register as Ex. PW1/C and original certificate issued by the Principal as Ex. PW1/D and as per the said record i.e. Ex. PW1/A to Ex. PW1/D, the date of birth of the victim child was 06.07.1995. However, the record produced by PW1 is put under clout by testimony of PW4 Ram Charan, father of the prosecutrix. It is clearly brought out from record produced by PW1 that prosecutrix was admitted in school on the basis of admission form and affidavit Ex. PW1/A and Ex. PW1/B alleged to have been submitted by her father and not on the basis of any MCD birth certificate. However, the PW4 Ram Charan, father of the prosecutrix, denied his signatures on Ex. PW1/A and Ex. PW1/B and stated that his name is Ram Charan S.C. No. 199/13 : State vs. Chiranji Lal : Page 9 of 12 and not Ram Chander as was mentioned in the school record. In these circumstances, no reliance can be place on record produced by PW1 to draw conclusion that victim was a 'child' less than 18 years of age as on the date she went missing from her parental home. I am supported in my view by judgment in the case of Birdi Mal Singhavi vs. Anand Purohit, 1988 Supp. SCC 601, wherein it has been held that no evidentiary value can be given to Date of Birth entry in absence of material on which entry is made.
15. Since prosecutrix was above 18 years of age at the time of alleged offence, the provisions of POCSO Act are not applicable to the facts and circumstances of the case.
16. As far as the allegations of kidnapping are concerned, it has been held in para 8 of 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 travelled 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. ...."
17. It would also be relevant to refer to the case titled as " S. Varadarajan Vs. State of Madras (reported as AIR 1965 SC 942)", wherein while distinguishing between " taking" and "allowing a minor to accompany a person" it has been laid S.C. No. 199/13 : State vs. Chiranji Lal : Page 10 of 12 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."
18. In the present case also, the element of 'taking away' or 'enticement' is found to be lacking. Rather from the material on record, it appears that prosecutrix was willing and consenting party, who went with the accused knowing fully well that he was already married with two children from his first wife. It seems that everything has happened with the sweet will of prosecutrix, who even otherwise was about 18 years of age, at that time. In these circumstances, the factum of kidnapping of prosecutrix does not stand proved.
19. The prosecution has failed to bring on record any incriminating evidence against the accused to prove charges of kidnapping and/or kidnapping with intention or knowledge that victim would be forced to have illicit sexual intercourse with accused or would be compelled to marry the accused. Accordingly, the accused is liable to be acquitted of the charges u/s 363/366 IPC in the present case and I hereby acquit the accused Chiranji Lal from the charges u/s 363/366 IPC.
20. Coming to the allegations of rape, from the material on record, it is apparent S.C. No. 199/13 : State vs. Chiranji Lal : Page 11 of 12 that prosecutrix was above 18 years of age at the relevant time, when the offence is alleged to have been committed. Thus not withstanding the fact that PW4 Sh. Ram Chand and PW5 prosecutrix P have not stated anything incriminating against the accused, since the prosecutrix was a major at the time of incident, she was free to go with accused and to marry him and to establish physical relations with him as per her desire. In these circumstances, the factum of rape also does not stand proved against the accused.
21. As the prosecution has failed to bring on record any incriminating evidence against the accused, the accused is acquitted of the charges u/s 376 (2) (n) also, in the present case.
22. File be consigned to the Record Room.
(Announced in the open Court ) (Illa Rawat)
(Today on 30.08.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C. No. 199/13 : State vs. Chiranji Lal : Page 12 of 12