Delhi District Court
State vs Akhilesh on 13 December, 2010
:1:
In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 16/10
State versus Akhilesh
S/o Sh. Surya Dev Singh
R/o Vill. Tungi, PS Deep Nagar,
Distt. Nalanda, Bihar.
Case arising out of:
FIR No. : 174/08
Police Station : Patel Nagar
Under Section : 363/376 IPC
Judgment reserved on : 04/12/10
Judgment pronounced on : 13/12/10
JUDGMENT
1. The case in hand was registered on a complaint dated 15/4/08 lodged by Smt. Yashoda, grandmother of the prosecutrix. The complainant alleged that her grand daughter is missing since evening of 09/4/08 and that she had reported about her missing vide DD No. 55 B Police Station Patel Nagar, despite which her grand daughter could not be traced. She stated that she is convinced that her grand daughter has been taken away by one Akhilsh by enticing her.
2. On the basis of said complaint, case was registered and SC No. 16/10: State vs. Akhilesh :2: investigated. The prosecutrix was recovered from the house of the accused at village Tungi Police Station Deep Nagar District Nalanda, Bihar. The prosecutrix was got medically examined and her statement under Section 164 CrPC was also got recorded. After completion of investigation, chargesheet was filed before the court.
3. On the basis of material on record, accused was charged for offences punishable under Section 363/366/376 IPC on 28/7/08. Accused pleaded not guilty and claimed trial when the charge was read over and explained to him.
4. I have heard the arguments advanced by Learned Defence Counsel and Learned APP for the State and gone through the evidence on record.
5. Complainant Smt. Yashoda was examined as PW4. She deposed that prosecutrix is the daughter of her deceased son Surender and was residing with her at the time of incident. She also deposed that her grand daughter was missing and that she had lodged her missing report at Police Station Patel Nagar. She also proved her complaint dated 15/4/08 as Ex. PW4/A. She also deposed that it was learnt upon enquiry from mohalla persons but she do not know the name of that person that accused Akhilesh had taken away the prosecutrix with him. She correctly identified the accused present in court.
6. Further, PW4 stated in her examination in chief that at the time of the incident her grand daughter was 16 years old. She denied the SC No. 16/10: State vs. Akhilesh :3: suggestion of Learned APP that at the time of the incident, age of the prosecutrix was 12 years. She also failed to support the case of the Prosecution so far as the allegations of Section 363 and 376 against the accused were concerned.
7. The prosecutrix was also examined by the Prosecution as PW6. However, a bare perusal of her deposition would show that she failed to support the case of the Prosecution. She deposed that she had in fact asked the accused to accompany her to his native village and there was no fault on part of the accused. She also deposed that accused performed marriage with her and did not commit any wrong with her. Despite lengthy crossexamination by Learned APP, she failed to support the case of the Prosecution.
8. Besides the aforesaid witnesses, the sisterinlaw of the prosecutrix namely Anita was also brought into the witness box as PW10. She deposed that after lodging complaint at Police Station Patel Nagar regarding missing of the prosecutrix, she came to know that accused had taken away the prosecutrix to Bihar from where the prosecutrix was subsequently recovered.
9. Learned Defence Counsel relied upon testimonies of aforesaid witnesses namely complainant Smt. Yashoda, PW10 Anita and prosecutrix herself as PW6. Learned Defence Counsel submitted that there is no evidence on record to convict the accused for the offences with which he has been charged. He also drew my attention to the SC No. 16/10: State vs. Akhilesh :4: statement of the prosecutrix recorded under Section 164 CrPC, which was proved by PW9 Sh. S. K. Gautam, Learned ASJ/Delhi, wherein she had stated that she had married to accused and accompanied him to his village voluntarily.
10. On going through the statement of the aforesaid witnesses coupled with medical evidence on record, I find that case of the Prosecution as regards offence punishable under Section 363/376 IPC does not stand prove on record. The witnesses of the Prosecution failed to support its case and there is no evidence on record to prove that accused enticed or seduced the prosecutrix to have illicit intercourse with her and he committed rape upon her without her consent.
11. However, Learned APP argued that there is sufficient material on record in the form of record summoned from the school of the prosecutrix to establish that at the time of the incident, she was below the age of the 18 years. Learned APP argued that as per Section 361 IPC, it is sufficient for the Prosecution to establish that the accused had taken away the prosecutrix, who was under 18 years of age at that time i.e. Date of keeping of her lawful guardian, without consent of said guardian and thereby committed offence punishable under Section 363 IPC. Learned APP further argued that as per the date of birth of the prosecutrix in the admission and withdrawal register of the school where she had studied, which is Ex. PW11/A, as per which date of birth of prosecutrix was 11/5/92. He also relied upon school leaving certificate SC No. 16/10: State vs. Akhilesh :5: Ex. PW11/C and the certificate dated 07/5/08 Ex PW11/C in support of his arguments that the prosecutrix was below the age of 18 years on 09/4/08.
12. Per contra, Learned Defence Counsel relied upon the cross examination of PW11, wherein he had deposed that birth certificate issued by MCD was not filed by parents of the prosecutrix at the time of her admission and that it was not in the school record produced by the witness. He argued that since there was not date of birth certificate issued by MCD, there was no conclusive proof that date of birth of the prosecutrix is 11/5/92, as deposed by PW11.
13. I have considered their respective submissions in the light of the evidence on record.
14. On going through the evidence on record in its entirety, I find no force in the arguments of Learned Defence Counsel that the age of the prosecutrix has not been established on record. His arguments that there was no birth certificate issued by MCD, filed by the parents of the prosecutrix at the time of her admission in school is not sufficient in my opinion to discard the record summoned from the school and proved by PW11. As per the record furnished by PW11, the prosecutrix was admitted in class VI in Govt. Girls Sr. Sec. School, West Patel Nagar, Delhi and her date of birth was mentioned as 11/5/92. However, as per the certificate Ex. PW11/C, her date of birth is also mentioned as 11/5/92 in the school record. However, it cannot be imagined that date SC No. 16/10: State vs. Akhilesh :6: of birth of prosecutrix would have been incorrectly recorded by her parents at the time when she was admitted in class VI. Hence, there is no ground to disbelief the record proved by PW11 and I am of the opinion that the Prosecution has been able to establish from the record that the prosecutrix was below 18 years of age at the time of commission of offence in the present case.
15. For proving the charge under Section 363 IPC, it is incumbent upon the Prosecution to establish that accused had kidnapped the prosecutrix from the keeping of her lawful guardian and that at the time of incident, the prosecutrix was below the age of 18 years.
16. 'Kidnapping from lawful guardianship' is defined in Section 361 IPC as under: ''Whoever takes or entices any minor under sixteen years of 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 lawful 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 guardainship.''
17. It has also been held in State of Haryana Vs Raja Ram 1973 Cr. L. J. 651 (SC) that minor's consent is immaterial. Thus, in the present case the fact that the prosecutrix deposed that she went along SC No. 16/10: State vs. Akhilesh :7: with accused voluntarily would not affect the provisions of 'kidnapping from lawful guardianship', as defined in Section 361 IPC. It is also pertinent to note that PW4 complainant, who is grand mother of the prosecutrix deposed that she learnt upon enquiry that accused Akhilesh had taken away the prosecutrix with him. It is also not in dispute that the prosecutrix was recovered from the house of the accused at his native village . It is deposed by the prosecutrix herself that she had accompanied accused Akhilesh to his native village on 09/4/10.
18. In the light of the aforesaid evidence, I find that the Prosecution has been able to successfully established on record that the prosecutrix who was below the age of 18 years was taken out of the lawful guardianship of her grandmother by the accused and thereby committed offence punishable under Section 363 IPC. The accused is accordingly convicted for the said offence. However, since there is no offence to the effect under Section 376 IPC, accused is hereby acquitted for the said offence.
19. Let the accused be heard on the point of sentence. Announced in the Open Court on December 13, 2010 (Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No. 16/10: State vs. Akhilesh :8:
20.Accused stand trial before this Court for the offence punishable U/s IPC.
21. The site plan was prepared and statement of the witnesses U/s 161 Cr.P.C. were recorded. The accused got recorded his disclosure statement and thereafter he was arrested by the Investigating Officer. On completion of the investigations, charge sheet for offence punishable U/s IPC was laid.
22. After the case was committed for trial to the Sessions, Charge for offence punishable U/s IPC was framed against the accused to which he pleaded not guilty. The Prosecution examined ** witnesses in order to substantiate the charge against the accused. Evidence
23. Statement of main witnesses. Their statements shall be adverted to subsequently in detail.
24. In the statement recorded U/s 313 Cr.P.C., the accused has denied the case of Prosecution and claimed to be innocent. The accused submitted that he has been falsely implicated in this case. He has not led any evidence in his defence.
Contentions
25. Findings SC No. 16/10: State vs. Akhilesh :9:
26.
27.
28.In the present case, the Prosecution has been able to prove its case beyond reasonable doubt for offence punishable U/s IPC. The accused is held guilty for the said offence.
Announced in the Open Court On (Shalinder Kaur) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No. 16/10: State vs. Akhilesh :10: In the Court of Ms. Kaveri Baweja Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 16/10
State versus Akhilesh
S/o Sh. Surya Dev Singh
R/o Vill. Tungi, PS Deep Nagar,
Distt. Nalanda, Bihar.
Case arising out of:
FIR No. : 174/08
Police Station : Patel Nagar
Under Section : 363/376 IPC
Judgment pronounced on : 13/12/10
ORDER ON SENTENCE
1. Heard on the point of sentence.
2. It is submitted by Ld. Defence Counsel that accused/convict has already remained in custody in this case for about two and a half years. He is stated to be 22 years of age and that he is not previous convict. It is prayed that having regard to the facts and circumstances, lenient view may be taken.
SC No. 16/10: State vs. Akhilesh :11:
3. In the totality of facts and circumstances of the case including the young age of the accused/convict and the period during which he had already remained in custody, I deem it appropriate to sentence the accused for the offence punishable under Section 363 IPC to the imprisonment already undergone by him in custody in this case in addition to payment of fine of Rs. 1000/ in default whereof, he shall undergo SI for two months.
It is ordered accordingly.
File be consigned to Record Room, after due compliance. Copy of judgment and order on sentence be given free of cost to the convict.
Announced in the Open Court On 13.12.2010 (Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No. 16/10: State vs. Akhilesh :12: State Vs. Akhilesh FIR No. 174/08 PS : Patel Nagar SC No. : 16/10 13/12/10 Present : Sh. Rakesh Mehta, Learned APP for State.
Accused in J/c with Counsel Sh. S. K. Bhardwaj, Adv. Vide judgment announced of even date on separate sheets, the accused is convicted for the offence punishable under Section 363 IPC and is acquitted for the offence punishable under Section 376 IPC.
Heard on the point of sentence.
Vide order announced of even date on separate sheets, the convict is sentenced for offence punishable under Section 363 IPC for the period already undergone by him in custody in this case in addition to payment of fine of Rs. 1000/ in default whereof, he shall undergo SI for two months.
It is ordered accordingly.
File be consigned to Record Room, after due compliance. Copy of judgment and order on sentence be given free of cost to the convict.
(KAVERI BAWEJA) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
13/12/10 SC No. 16/10: State vs. Akhilesh