Delhi District Court
State vs . Manoj @ Krishna on 8 January, 2015
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No.142/14)
Unique ID case No. 02404R0227212014
State Vs. Manoj @ Krishna
FIR No. : 345/14
U/s : 376/363/366 IPC &
u/s. : 4 of POCSO Act, 2012
P.S. : Keshav Puram
State Vs. Manoj @ Krishna
S/o Sh. Ganga Ram,
R/o Village and Post Pandari,
PS Awagarh, District Etah,
UP.
Date of institution of case 22.07.2014
Date of arguments : 08.01.2015
Date of pronouncement of judgment : 08.01.2015
JUDGMENT:
1. Briefly stated the case of the prosecution is that victim R @ K went missing from her house on 08.06.2014. The father of the victim made efforts to search for her and when he could not get any clue about her S.C. No.142/14 : State vs. Manoj @ Krishna : Page 1 of 19 2 whereabouts, he reported the matter to the police at 100 number. The call made by complainant was forwarded to PS Keshav Puram and was registered vide DD No.12 A i.e. Ex.PW1/A which was handed over to HC Prem Ram for inquiry. The IO met complainant Bharat Singh and recorded his complaint Ex.PW3/A wherein the complainant expressed his suspicion on accused Manoj @ Krishna for having enticed and kidnapped his daughter. Pursuant to the said complaint, the present case was registered against the accused and further investigations of the case were marked to ASI Shashi Kumar. The IO got information about the victim pursuant to which he went along with complainant Bharat Singh and L/HC Rajeshwari to Chhotu ka Makaan, Prem Medical Store wali Gali, Kapashera, and recovered victim R @ K from a room at said place. He also prepared the site plan of the place of recovery of the victim R @ K. The IO further made inquiry from victim R @ K and recorded her statement and thereafter the victim R @ K was brought back to PS from where she was sent for her medical examination to BJRM Hospital. The victim R @ K was also taken for her gynecological examination, however, she refused for the same and hence, she was brought back to PS. Thereafter, the further investigations of the case were marked to W/SI Sanju on 09.06.2014. During the course of investigations, W/SI Sanju got the victim counseled through NGO and thereafter the custody of victim R @ K was handed over to the complainant Bharat Singh. The accused was also searched for and on the night intervening 09 / 10.06.2014 W/SI Sanju arrested the accused from S.C. No.142/14 : State vs. Manoj @ Krishna : Page 2 of 19 3 the very house from where the recovery of victim had been effected i.e. Chhotu ka makaan, Prem Medical wali gali, Village Kapashera, Delhi. The accused was also sent for his medical examination and after his medical examination, he was produced before the concerned Court from where he was sent to JC. After completion of investigations, charge sheet was prepared and filed in this court.
2. After hearing the arguments, charges for the offence under Section 363/366 IPC and 5 (l) of the Protection of Children from Sexual Offences, 2012 (hereinafter referred to as "POCSO Act) punishable u/s. 6 of POCSO Act was framed against accused Manoj @ Krishna. An alternative charge for the offence u/s. 376 (2) (n) IPC was also framed against the accused. However, accused pleaded not guilty to charges framed against him and claimed trial and thereafter, the case was fixed for prosecution evidence.
3. The prosecution has examined 8 witnesses in support of its case.
4. The PW1, HC Raj Kumar, was posted as duty officer at PS Keshav Puram at the relevant time and had recorded DD No.12 A on 08.06.2014 on call received from PCR. He proved the attested true copy of DD No.12 A as Ex.PW1/A by producing the original DD register. The PW1 had further recorded the case FIR in the present case. He proved the endorsement made by him on the rukka as Ex.PW1/B, the S.C. No.142/14 : State vs. Manoj @ Krishna : Page 3 of 19 4 computerized copy of FIR as Ex.PW1/C and the certificate u/s. 65 B of Evidence Act as Ex.PW1/D.
5. The PW2, K is the victim in the present case. She deposed that she had known accused since one year prior to the date she appeared to depose in the Court and that on 23 / 24.05.2014 her family members came to know about her love affair with the accused Manoj @ Krishna. She further deposed that she asked her family to solemnize her marriage with the accused but her father refused for the same and due to this reason she left her home of her own free will on 26.05.2014 and met accused at Inderlok Metro Station from where they both went to Kapashera to the house of accused where they continued to reside for about 15 days. The PW2 further deposed that when her father (father of the victim) came to know about her (PW2's) whereabouts, he came to the house of accused with police officials and brought her back. The PW2 stated that she wanted to get married to accused and that during her stay with the accused, she had spoken to her father on his mobile phone and requested him to arrange for her marriage with the accused but her father had refused for the same. The PW2 further deposed that after recovery she and accused were brought to PS Keshav Puram and that she was got counseled by one NGO at PS and was thereafter sent for her medical examination to BJRM Hospital and had refused for her gynecological examination vide MLC Ex.PW2/A. The PW2 proved her statement u/s. S.C. No.142/14 : State vs. Manoj @ Krishna : Page 4 of 19 5 164 CrPC as Ex.PW2/B. This witness was declared hostile by learned Additional PP as the witness had failed to support the prosecution case. During her cross examination by learned Additional PP, the PW2 denied the portion of her statement u/s. 161 CrPC i.e. Mark "X' wherein she had stated that the accused used to talk to her on phone and gradually enticed her and that she started meeting him or that on 26.05.2014 accused enticed her and took her with him to his house at gali Prem medical wali, Chadha ka plot, Kapashera, and made her stay with him in his room or that during her stay with him, accused committed rape upon her (victim K) against her wishes.
6. The PW3, Bharat Singh, is the complainant/father of the victim K. He deposed that his wife had already expired and that he had one son and two daughters including the victim K, whose date of birth was 15.09.1996. He further deposed that on 25.05.2014, his daughter K left the house without informing him and that he tried to search for her, but when there was no clue about her whereabouts, he went to the police station and filed complaint Ex. PW3/A. He further deposed that on 08.06.2014, he received information from one Rukhsar, wife of accused Manoj that his daughter (daughter of PW3) was in Kapashera and that PW3 went to Kapashera, along with his son, but was unable to find his daughter K and so, he sought help from the police and again went to Kapashera and was able to apprehend victim K and the accused from a house, at Kapashera S.C. No.142/14 : State vs. Manoj @ Krishna : Page 5 of 19 6 on that night itself. He proved the recovery memo of victim K as Ex. PW3/B and the arrest and personal search memos of the accused as Ex. PW3/C and Ex. PW3/D, respectively. The PW3 further deposed about bringing his daughter K to the court on 10.06.2014 for her statement u/s 164 Cr.P.C and proved his signatures on Ex. PW2/B i.e. the carbon copy of the statement of victim K u/s 164 Cr.P.C.
During his crossexamination by learned defence counsel, PW3 denied that his daughter K was having an affair with the accused or that she had told PW3 that she wanted to get married with the accused, but PW3 and his son refused by threatening to eliminate accused Manoj and thereafter, his daughter K left home without informing PW3. The PW3 further denied that Ruksar, who had informed him about the whereabouts of his daughter K, wanted to marry accused himself or that due to refusal by the accused, she had got him arrested in the present case. The PW3 denied that his daughter K had declined to come back with him (PW3),when recovered by them. The PW3 further denied that alleged history on the MLC of victim K had been mentioned by the doctor at his instance. He further denied that he was still against the relations of victim K with accused or that victim K wanted to marry the accused even now.
7. The PW4, Sh. Kishore Kumar, Sub Registrar, has produced the record from the office of MCD, Births and Deaths Department, and deposed that as per record, victim R born to Smt. Babli w/o Sh. Bharat S.C. No.142/14 : State vs. Manoj @ Krishna : Page 6 of 19 7 Singh r/o House No.2201, Basti Jullahan, Sadar Bazar, Delhi, and that the birth of the child had taken place at home on 15.09.1996 and that as per information given by father of the child, the name of the child was registered in the office of registrar on 18.09.1996. He proved the birth certificate of the child as Ex.PW4/A and the photocopy of the relevant entry No.162 in the register of births maintained at the office of MCD as Ex.PW4/B. During crossexamination by learned amicus curie, the PW4 admitted that the relevant entry in the birth register had not been made by him and that he had not worked with the sub registrar, who had made the entry in question in the birth register.
8. The PW5, Sh. Dharmender Yadav, is the owner of the tenanted premises, from where the victim was recovered and accused was apprehended. He deposed that he had about 20 rooms in his property at Khasra no. 256, Peer wali gali, near Radha Krishan Mandir, Kapashera, New Delhi, and that he used to let out said room to different tenants. He further deposed that in January 2014, he had rented out one room of his property to one Rukhsar at monthly rent of Rs. 2050/ and that no rent agreement was executed by him at that time, however, he had got tenant verification done by informing Delhi Police. He produced the photocopy of tenant verification form submitted by him to the police, along with photocopy of the Adhar Card of Rukhsar and proved copies thereof as Ex. S.C. No.142/14 : State vs. Manoj @ Krishna : Page 7 of 19 8 PW5/A and Ex. Pw5/B, respectively. The PW5 further deposed that within one month of his giving the premises on rent to Rukhsar, one Manoj also came to stay with Rukhsar in the said premises and that Rukhsar used to tell everyone that said Manoj was her husband and that PW5 had also taken photocopy of voter Icard of said Manoj. He proved the copy thereof as Ex. PW5/C and further stated that he intended to get police verification of Manoj done, but since Manoj had given copy of his voter I card to PW5 after considerable time, PW5 was unable to do so. The PW5 further deposed that in the end of May 2014, Ruksar left after informing him that she was going to her village and would return back after some time and that in her absence, one girl by name of Kajal came to stay in the tenanted premises of Ruksar and that Manoj told PW5 that Kajal was his relative. He further deposed that one Sudhir had also come to stay in the tenanted premises of Ruksar, before she went to village and that Manoj, Sudhir and Kajal remained in the said premises for about 15 days in absence of Ruksar and thereafter, police officials came and took Manoj, Sudhir and Kajal with them.
During his crossexamination, PW5 deposed that his house was at a distance of less than half a kilometer from the house in question i.e. the house, which was let out to different tenants. The PW5 denied that Ruksar and Sudhir had taken room on rent from him or that Manoj had come to stay in the said room after Sudhir and Rukhsar had left. S.C. No.142/14 : State vs. Manoj @ Krishna : Page 8 of 19 9
9. The PW6, SI Shashi Kumar is one of the investigating officers of the case and he deposed that on 08.06.2014, on entrustment of the further investigations of the case, he along with L/HC Rajeshwari and complainant Sh. Bharat Singh went to Chhotu ka makaan, Prem medical store wali gali, Kapashera, and recovered victim R @ K at the instance of complainant, vide recovery memo Ex.PW3/B. He further deposed about preparation of the site plan Ex.PW6/A of the place of recovery and about getting medical examination of the victim child conducted at BJRM Hospital through W/HC Rajeshwari. He further deposed that as Section 376 IPC was added in the present case, the further investigations of the present case were marked to PW7 W/SI Sanju and that he handed over case file to W/SI Sanju. The PW6 further deposed that on the night intervening 09/10.06.2014, he again joined the investigations of the present case with PW7 W/SI Sanju at the time of arrest of the accused Manoj @ Krishna from Chhotu ka makaan, Prem medical store wali gali, Kapashera. He proved the arrest memo of accused as Ex. PW3/C and his personal search memo as Ex. PW3/D. During crossexamination, the PW6 stated that he did not collect any rent agreement or any documents pertaining to the room in question from the land lord. He denied that prosecutrix had refused to accompany her father at that time of her recovery or the prosecutrix told him that she herself had left her house or that she wanted to get married with the accused. He further stated that W/HC Rajeshwari had not S.C. No.142/14 : State vs. Manoj @ Krishna : Page 9 of 19 10 recorded the statement of the victim, but had made inquiry from her, as directed by him and that thereafter, he himself recorded statement of the victim. He further denied that he had concealed the statement recorded by W/HC Rajeshwari as the prosecutrix had not stated anything against the accused in the said statement.
10. The PW7, W/SI Sanju Rai is also one of the investigating officers of the present case and she deposed that on 09.06.2014, on being assigned the further investigations of the present case, she reached at PS Keshav Puram and got prosecutrix counseled by the NGO official. She further deposed about arrest and personal search of the accused and about preparation of the charge sheet in the present case.
During crossexamination by learned Amicus Curie, the witness denied that the prosecutrix told her in the police station, that she (prosecutrix) had herself left her house as she wanted to get married with the accused or that the prosecutrix had also told her that her family members were against her relation with accused and had threatened to kill the accused.
11. The PW8 HC Prem Singh is the initial Investigating officer of the present case and he deposed that on 08.06.2014, on receipt of telephonic information vide DD No. 12A, Ex. PW1/A, pertaining to kidnapping of a minor girl, he reached at house no. 94, Saini Wali gali, Rampura, Delhi S.C. No.142/14 : State vs. Manoj @ Krishna : Page 10 of 19 11 alongwith Ct. Dinesh and met complainant Bharat Singh, who informed him that a person by name of Manoj Kumar had kidnapped his daughter R @ K, born on 18.09.1996. He further stated that at that time, complainant did not give any statement to him and that on the same day, at about 2.30 pm, complainant came to Police Station and got recorded his statement/ complainant Ex. PW3/A, on the basis of which, he prepared rukka Ex. PW8/A and got the FIR of the present case registered through Duty officer and that after registration of the FIR, further investigation of the case were marked to ASI Shashi Kumar upon directions of the SHO.
During crossexamination by learned Amicus Curie, PW8 denied that the complainant had told him that his daughter had voluntarily left his house as she wanted to marry the accused or that the accused had been falsely implicated in the present case as the complainant was against the affair of his daughter with the accused.
12. After closing of prosecution evidence, statement of accused Manoj @ Krishna was recorded u/s 313 Cr.P.C, wherein the accused denied the allegations of the prosecution and stated that he is innocent and had been falsely implicated in the case at the instance of the father of the prosecutrix, who was against his affair (affair of accused) with prosecutrix and did not want accused and prosecutrix to get married. He further deposed that prosecutrix had voluntarily left her home and stayed with him for 15 days as her father used to beat her and had threatened to kill S.C. No.142/14 : State vs. Manoj @ Krishna : Page 11 of 19 12 him (accused), if she continued her relations with him. The accused declined to lead evidence in his defence.
13. Arguments have been addressed by learned amicus curie for the accused as well as learned Additional PP for the State.
14. Learned Additional PP has contended that in view of the statement of the PW3 Sh. Bharat Singh and PW5 Sh. Dharmender Yadav, prosecution has succeeded in proving its case against the accused. She further submitted that from birth certificate Ex. PW4/A, proved by PW4, it has been established that the prosecutrix was a minor at the time of alleged offence and as such her consent, if any, is not relevant. She further submitted that prosecution has succeeded in proving its case against the accused beyond reasonable doubt and has accordingly prayed that accused be convicted for the charged offence.
15. Ld. Amicus curie for the accused has submitted that accused is innocent and has not committed any offence. It is further submitted the the victim was having a love affair with the accused and had voluntarily gone with him as her family members came to know about her love affair with the accused and refused to solemnize her marriage with him. It is also contended that no allegations of penetrative sexual assault have been leveled by the victim against the accused and that IO had wrongly S.C. No.142/14 : State vs. Manoj @ Krishna : Page 12 of 19 13 recorded the statement of the victim u/s 161 Cr.P.C in order to falsely implicate the accused. It is lastly contended that since the victim had voluntarily gone with the accused, no offence of kidnapping is made out against the accused. In this regard,ld. Amicus Curie has relied upon the following judgments :
(i) S. Varadarajan vs. State of Madras, AIR 1965 (SC) 942
(ii) Lawrence Kannandas vs. The State of Maharashtra, 1983, Crl. L.J. 1819
(iii) Bunty vs. State (NCT of Delhi), Crl. Appeal no. 846/09
(iv) Madan Lal @ Sonu @ Tidu vs. State of Himachal Pradesh, 2014 Crl. L.J. 641
(v) Shyam & Anr. vs. State of Maharashtra, 1995 Crl. L.J. 3974 (SC)
16. I have heard the arguments put forward by ld. Addl. PP as well as learned counsel for the accused and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case as well as case law relied upon by learned Amicus Curie.
17. In the present case, the applicant/accused is alleged to have kidnapped victim R @ K, a minor girl aged about 171/2 years from the lawful guardianship of her parents with intention to compel her to marry him and/or to force her to have illicit intercourse with him. He is further S.C. No.142/14 : State vs. Manoj @ Krishna : Page 13 of 19 14 alleged to have taken the victim to a room at village Kapashera, where he committed repeated penetrative sexual assault upon the victim child from 26.05.2014 to 09.06.2014.
18. The first issue, which arises for consideration of the court is, whether the victim R @ K was less than 18 years of age, when she went missing from her house. In order to prove that victim R @K was a "child" less than 18 years of age as on the day of incident, the prosecution has examined PW4 Sh. Kishore Kumar, SubRegistrar, Birth & Death. As per record produced by PW4, the date of birth of the victim R @ K is 15.09.1996. Nothing could be brought out on record by the defence to create doubt regarding the genuineness and authenticity of record produced by PW4 which even otherwise was being maintained in regular course by the MCD office. The PW3 Sh. Bharat Singh, father of the victim child has also mentioned her date of birth as 15.09.1996. From the testimonies of PW3 Sh. Bharat Singh and record produced by PW4 Sh. Kishore Kumar, it stands proved beyond reasonable doubt that the date of birth of victim child is 15.09.1996. The date when victim R @ K first went missing from her parents' house is 25.05.2014 and thus, computing her age, the age of prosecutrix comes to be about 17 years and eight months as on the date of commission of offence and hence the prosecution has succeeded in proving that prosecutrix was less than 18 years of age (17 years and 8 months) as on 25.05.2014, when she went missing from her S.C. No.142/14 : State vs. Manoj @ Krishna : Page 14 of 19 15 parent's house and so she falls within the definition of "Child" as per provisions of the Section 2 (d) of the POCSO Act.
19. The next issue,which arises for consideration, whether the accused had kidnapped the victim child R @ K, taken her to a tenanted room at Kapashera and committed repeated penetrative sexual assault upon her from 26.05.2014 to 09.06.2014. In order to prove its allegations,the prosecution has examined Sh. Bharat Singh, the father of the victim R @ K as PW3. The PW3 has deposed that his daughter R @ K, whose date of birth is 15.09.1996, had gone missing from his house on 25.05.2014 and was recovered on 08.06.2014, with the help of police, when he (PW3) received information from one Rukhsar that his daughter (daughter of PW3) was in a house at Kapashera. He proved his complaint as Ex. PW3/A and the recovery memo of his daughter R @ K as Ex. PW3/B. The perusal of the complaint Ex. PW3/A however shows that the same was filed on 08.06.2014 only, despite the fact that victim had gone missing from her parental house on 26.05.2014. The PW3 has not given any explanation for the delay of about 13 days in approaching the police and filing complaint regarding missing of his daughter. Rather, it appears that Sh. Bharat Singh filed complaint Ex. PW3/A only after recovery of his daughter.
20. The prosecution has also examined victim R @ K as PW2 in order S.C. No.142/14 : State vs. Manoj @ Krishna : Page 15 of 19 16 to prove the charge of kidnapping and penetrative sexual assault against the accused. The relevant portion of testimony of PW2 has already been reproduced in foregoing paragraphs. From the said testimony, it is apparent that victim R @ K has not leveled any allegations of penetrative sexual assault against the accused. This fact is also reflected from the statement of the victim u/s 164 Cr.P.C i.e. Ex. PW2/B, which was recorded on 10.06.2014, a day after the recovery of the victim R @ K.
21. Though, learned Addl.PP has relief upon the statement u/s 161 Cr.P.C, made by the victim before the IO, needless to state that the said statement fades into oblivion in light of testimony of the victim R @ K, made before the court. Further, even the allegations of kidnapping fall flat from the testimony of the victim R @ K before the court. The victim R @ K has categorically stated that she was having love affair with accused Manoj @ Krishna and that she had informed her family that she wanted to get married with the accused, but since her father refused for the same, she left her home of her own free will on 26.05.2014 and went with the accused to his house at Kapashera and stayed with him for fifteen days. There is no murmur of any enticement or force having been exerted by the accused to make victim R @ K, to go with him. The victim R @ K though, had not attained the age of 18 years, was on the verge of maturity and had taken a conscious decision to go with the accused without accused having forced her or enticed her to arrive at the said decision in any manner. In S.C. No.142/14 : State vs. Manoj @ Krishna : Page 16 of 19 17 similar circumstances, 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, it was held 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. ...."
22. In this regard, it would 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 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 S.C. No.142/14 : State vs. Manoj @ Krishna : Page 17 of 19 18 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."
23. Similar view has been taken by Hon'ble Supreme Court in judgment of Shyam & Anr. vs. State of Maharashtra (supra) and by Hon'ble Bombay High Court in the case of Lawrence Kannandas vs. State of Maharashtra (supra) and by Hon'ble Himachal Pradesh High court in case of Madan Lal @ Sonu @ Tidu vs. State of Himachal Pradesh (supra), which have been relied upon by learned Amicus Curie.
24. In the present case also, the element of 'taking away' or 'enticement' is found to be lacking. In view of the material on record, it appears that prosecutrix was willing and consenting party and it seems that everything has happened with her sweet will. In these circumstances, the factum of kidnapping of prosecutrix does not stand proved.
25. The nutshell of foregoing discussion is that from the testimony of the victim child R @ K as well as other material witnesses examined by it, the prosecution has miserably failed to prove that accused Manoj @ Krishna had kidnapped victim child R @ K, with intention to compel her to marry him and to force / seduce her to have illicit intercourse S.C. No.142/14 : State vs. Manoj @ Krishna : Page 18 of 19 19 with him or that he had committed repeated penetrative sexual assault upon the victim from 26.05.2014 to 09.06.2014. Accordingly, I acquit accused Manoj @ Krishna of the charged offence by giving him benefit of doubt.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 08.01.2015) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi.
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