Delhi District Court
State vs Anup @ Pi Nchu S/O. Satpal Singh on 3 November, 2010
IN THE COURT OF SANJAY GARG: ADDIT IONAL SESSIONS JUDGE;
(EAST) FTC : KARKADOOMA COURT : DELHI.
SC No. . 70/10
FIR No. 490/09
PS New Ashok Nagar
U/s. 363/365/366/368 IPC
Instituted on 14.5.10
Argued on 30.10.10
Decided on 3.11.10
State Versus Anup @ Pi nchu S/o. Satpal Singh
R/o. Vill. Bilanda Pur, P.S. Roja, Distt.
Shahjahan Pur, U.P.
JUDGMENT
1. In brief the case of the prosecution is that prosecutrix aged 16 years went missing on 13.11.09. PW2 Brij Kishore Gupta, brother of the prosecutrix lodged DD entry at PS New Ashok Nagar, as he could not find her. Since prosecutrix did not return on 19.11.09 PW 2 went to the police station and lodged this FIR No. 490/09 u/s. 363 IPC. On 4.12.09 PW2 informed the police that accused and prosecutrix are residing in Sagar Pur. A raid was conducted and prosecutrix was recovered and accused was apprehended from there. During investigation PW5 SI Yogender Singh, IO got the statement of the prosecutrix u/s. 164 Cr. PC. After investigation police filed chargesheet FIR No. 490/09 Page 1 of Page 10 against accused u/s. 363/365/366/368 IPC.
2. Charge u/s 376/366 IPC was given to accused, to which he pleaded not guilty and claimed trial.
3. To prove its case prosecution examined seven witnesses.
PW1 is the prosecutrix. PW2 Sh. Brij Kishore Gupta is the complainant. He proved recovery of prosecutrix vide memo Ex.PW2/A, arrest and personal search memo of accused Ex.PW2/B and Ex.PW2/C. PW3 Dr. R.N. Dass, CMO, LBS Hospital proved medical examination report of accused Ex.PW3/A. PW4 HC Prem Pal, duty officer proved FIR Ex.PW4/A. PW5 SI Yogender Singh is IO in this case. PW6 Sh. Suresh Gupta, Ld. ADJ proved the statement of the prosecutrix recorded u/s. 164 Cr. PC as Ex.PW6/B. PW7 Dr. Sangita Dass Gupta proved MLC of pr osecutrix as Ex.PW 7/A.
4. On the basis of the incriminating evidence against the accused, his statement u/s. 313 Cr. PC was recorded. Accused deni ed all the prosecution allegations and stated that he and prosecutrix were in love with each other for the last 3 years. On 13.11.09 at about 6 p.m he was present in his room, prosecutrix had a quarrel with her sister and asked him to take her somewhere otherwise she will commit suicide. He asked her to go back to her house but she did not agree. They went to Ballabhgarh and stayed there for 2 days and got married FIR No. 490/09 Page 2 of Page 10 there in a temple. He and prosecutrix had executed an affidavit at Badayun, U.P.
5. Accused led evidence in defence and examined Sh. Vinay Kumar Singh, Notar y Public, Badayun Di strict Courts as DW 1.
6. Heard arguments of Sh. Mohd. Iqrar, Ld. APP for State and Sh.
Dharmendra Kumar, Ld. Defence counsel for accused. Perused the case file.
7. Ld. APP submitted that prosecutrix was minor, from her statement recorded as PW1 and statement of PW2, it stands established that she was taken away by accused forcibly with the intention to marry her. It is stated that prosecutrix was recovered on 4.12.09 from the custody of accused, hence prosecution has been able to prove the commission of offence punishable u/s. 366 IPC agai nst the accused.
8. The Ld. defence counsel Sh. Dharmendra Kumar contended that prosecutrix was in love with accused and she was major and had gone at her own with the accused. It is stated that as per the age determination test, age of the prosecutrix was 18 to 19 years. It is stated that from the statement of DW1, it stands established that prosecutrix had married with the accused at Badayun at her own.
FIR No. 490/09 Page 3 of Page 10
9. PW1 is the prosecutrix and is the most material witness. She deposed that she had studied upto 5th standard and lives in her house with her mother, her brother and sister-in-law. His brother runs a kabari shop. Accused lives in their neighbourhood. On 13.11.09 at about 5 p.m she went to Sabzi Mandi near Hanuman Mandir, New Ashok Nagar, there accused met her. Accused was in a car and asked her to come with him. When she asked wher e he is taking her, accused told that he will tell her in car. She sat on the rear seat of the car and accused also sat with her on the rear seat. There were three more persons, two sat on the fr ont seat and one sat on the r ear seat. A black cloth was put on her head covering his eyes and she was not able to see anything. After about 20-25 months the car stopped and accused took her in a room. When she asked that where she has been br ought, accused slapped her and closed the door of the room. She was alone in the room and remained there for 4-5 days. One lady used to give her food. After 4-5 days his brother Brij Kishore came there with the police. At that time accused was not present in that room. During the period she was confined in that room accused visited only twice. She does not know why she was detained by the accused in the said room. Prosecutrix was cross-examined by Ld. APP after declaring her hostile. During her cross-examination she denied the suggesti on that she used to sit for sometime on the shop of her brother and accused used to gi ve kabari articles on the shop of her brother and she developed friendship with him. She denied the suggesti on that they keep on meeting FIR No. 490/09 Page 4 of Page 10 frequently and accused proposed her to marry and due to this reason on 13.11.09 accused took her for the purpose of marriage and kept her in a room at Sagar Pur, Kailash Colony by taking the room on rent. She denied the suggesti on that in that room accused against her wish did sexual intercourse with her and next day when she asked him that when they are getting married, accused told her that what is the hurry and daily used to do sexual inter-course with her against her wish. She denied the suggesti on that her brother, mother and police reached at the said room on 4.12.09 and accused was appr ehended fr om there.
10. PW2 Brij Kishore Gupta is the brother of the prosecutrix and complainant. He deposed that on 13.11.09 at about 7.45 p.m he was present at his shop. His elder sister Sarojini informed him on phone that prosecutrix had not returned to house. He returned to his house alongwith his younger brother, searched for prosecutrix. At about 11 p.m uncle and aunt of accused namely Dhara Singh and his wife met him near Pili Kothi at New Ashok Nagar. Dhara Singh asked from him that where is Pinchu. He told Dhara Singh that he is searching for his sister. Suddenly, Dhara Singh disappeared from there and he got suspicious. At 12.45 a.m he reached at the room of Dhara Singh and came to know that he had gone to Haryana alongwith his family. At 2 a.m he went to PS New Ashok Nagar and a DD entry was made on his complaint. On 19.11.09 he went to PS and lodged FIR. He told mobile number of accused Dhara Singh and his other relatives to the police. From Vipin the friend of accused, he came to know that accused with FIR No. 490/09 Page 5 of Page 10 his sister has gone to Bal labhgarh. They went to Bal labhgarh but coul d not search his sister. The mobile phone of accused was put on surveillance by the police. The location of accused was traced at Kailash Puri, Delhi. On 4.12.09 he alongwith police reached at Kailash Puri. Police called accused at Kailash Puri and accused reached there with a boy. Accused led the police party to a house in narrow street where in a room his sister i.e. prosecutrix was sitting. During cross- examination PW2 has denied the suggesti on that prosecutrix had returned to their house at her own on 18.11.09. He denied the suggesti on that age of pr osecutrix was more than 20 year s at that ti me.
11. Regarding recovery of prosecutrix IO SI Yogender Singh has deposed that on 4.12.09 Brij Kishore came to PS and told that prosecutrix and accused are residing in Sagar Pur. He went to Sagar Pur alongwith Brij Kishore and hi s mother. At the fi rst floor of the house prosecutrix and accused were present, Brij Kishore identified both of them. Accused was arrested by him in this case. Thereafter he got age deter mination test of the pr osecutrix done from LBS Hospi tal.
12. The Ld. defence counsel has pointed out contradictions regarding the recovery of prosecutrix appearing in her statement as wel l as in the statement of PW2 and IO PW5. The Ld. defence counsel has contended that these contradictions show that prosecutrix at her own had gone with accused, on 13.11.09 and after few days returned to her house at her own. Prosecutrix while deposing as PW1 has stated that FIR No. 490/09 Page 6 of Page 10 she remained in that room for 4-5 days and thereafter her brother came there with the police and from there she was taken to PS. As per PW2 prosecutrix was recovered on 4.12.09 from a house at Kailash Puri. PW2 has further stated that he had given mobile number of accused to the police and police had kept mobile number of accused on surveillance and on that basis location of accused was tr aced at Kai lash Puri. Whereas as per PW5 IO on 4.12.09 Brij Kishore came to the PS and told that prosecutrix and accused are residing in Sagar Pur. He went to Sagar Pur with Brij Kishore and his mother and there from the first floor of the house prosecutrix was recovered and accused was apprehended. Ex.PW6/B is the statement of the prosecutrix recorded u/s. 164 Cr.PC wherein she has stated that she was kept in the room by the accused for 12 days. The contradiction in the statement of prosecutrix regarding the date and time on which she was recovered, to my mind is inconsequenti al and is occurring due to lapse of time. The contradiction in the statement of PW 2 and PW 5, regarding if PW2 gave the information to PW5 that accused and prosecutrix are at Kailash Puri or if PW5 traced the location of accused on the basis of his mobile phone and then passed on information to PW2, is again inconsequenti al and minor discrepancy in the statement of these witnesses,. Over much importance need not be given to minor discrepancies. The reliance is placed upon (1993) 3 SCC 217, the case titled Bharwara Bho gin-Bhai HIrjit-Bhai V/s. St ate of Gujarat.
FIR No. 490/09 Page 7 of Page 10
13. One of the main contenti on raised by Ld. defence counsel is that prosecutrix was in love with the accused and she was major and went with accused at her own and also married with him at Badayun. Accused is charged for the offence punishable u/s. 376/366 IPC. Prosecutrix has specifically stated that accused did not do sexual inter- course with her. Therefore, the char ge u/s. 376 IPC goes.
14. As per the prosecutrix she was forcibly kept by accused in a room for about 12 days. As per her she was alone in the room and one lady used to give food to her to eat. She has nowhere stated if the said room used to be kept locked and she was not permitted to come out. It is also nowhere stated by the prosecutrix if she did not come out of said room at any point of time during her stay in the said room. Statement of prosecutrix is also silent that if she was kept in that room by the accused forcibly then why she did not raise any alarm and made no efforts to run away from there. The alleged kidnapping as alleged by prosecutrix in her statement also appears suspicious. As deposed by her at about 5 p.m, she went to Sabzi Mandi near Hanuman Mandir, New Ashok Nagar, there accused met her, he was in a car and asked her to come with him. It looks unbelievable that by chance prosecutrix met the accused near Hanuman Mandir and he forcibly kidnapped her in a car.
15. To establish his defence accused has examined DW1 Sh.
FIR No. 490/09 Page 8 of Page 10 Vinay Kumar Singh, Notary Public, Badayun. DW1 has deposed that affidavit Ex.DW1/1 was attested by him on 23.11.09. The photograph on Ex.DW1/1 was also attested by him by putting stamp on it. He produced his register, the copy of which is Ex.DW1/2 regarding the entry made in it about affidavit Ex.DW1/1. During cross-examination DW1 has stated that pr osecutrix was accompanyi ng accused.
16. Ex.DW1/1 is the affidavit signed by prosecutrix and attested by DW1. On it a joint photograph of prosecutrix and accused is affixed. Though prosecutrix has denied to have a joint photograph with accused but from the Ex.DW1/1 it stands established that not only prosecutrix had a joint photograph with accused, she also executed affidavit at Badayun claiming her to be major aged 20 years and mentioning that she wants to mar ry accused.
17. The relevant point to be considered now is the age of the prosecutrix. As per her she is running into 16th year. Her brother PW2 has refused to give her age stating that his mother must be knowing about it. There is age determination test of the prosecutrix, got conducted by police from LBS Hospital. As per which her age is opined to be 18-19 years. This is a prosecution document, though not proved, but being filed on record can be considered by Court if it favours the accused in any manner. In the absence of any documentary proof FIR No. 490/09 Page 9 of Page 10 regarding age of the prosecutrix, the estimate regarding her age has to be based on this age determination test. Though it is not the conclusive proof regarding the age of a person but at least it stands established from this report that age of the prosecutrix was around 17-18 years on the lower side. In 2006 (1) RCR (Criminal) 653, case titled Manish Singh Vs. State of NCT, the Hon'ble Delhi High Court has observed that if a girl of 17 years accompanies a boy of her own volition, offence of kidnapping is not made out as the girl is on the verge of majority and has reached the age of discretion. In this case, prosecutrix being around 17 years of age had accompanied accused on her own volition without any kind of enticement or inducement or force from any one. It was observed by Hon'ble High Court that there was no taking away or inducement of minor out of keeping from lawful guardian, hence essential ingredients of offence of kidnapping are missing. Reliance is also placed upon S. Varadarajan Vs. State of Madras, AIR 1965 Supreme Court 942.
18. In view of the facts and circumstances of this case and in the light of law laid down by our High Court, ingredients of the offence u/s. 361 IPC are not established against the accused. Accordingly offence u/s. 366 IPC also goes against the accused. Accused is accordingly acquitted from the offence s punishable u/s. 366/376 IPC.
File be consi gned to r ecord room.
FIR No. 490/09 Page 10 of Page 10 Announced i n the open Cour t ( SANJAY GARG )
on 3rd day of November , 2010 Addl. Sessions Judge ( East) FTC, Karkardooma Courts:
DELHI.
FIR No. 490/09 Page 11 of Page 10