Delhi District Court
State vs . Parmod on 16 September, 2014
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 174/13)
Unique ID case No. 02404R0300342013
State Vs. Parmod
FIR No. : 285/11
U/s : 363/366A/376/495 IPC
P.S. : Begum Pur
State Vs. Parmod
S/o Sh. Jaswant
R/o Village Thalia Nangla,
P.S. Mushajha,
Distt. Bandau, UP
Date of institution of case 24.10.2013
Date on which, judgment has been reserved 16.09.2014
Date of pronouncement of judgment : 16.09.2014
JUDGMENT:
1. Briefly stated the case of the prosecution is that on 16.11.2011, complainant Sopali went to PS Begampur and filed a complaint regarding missing of his daughter 'D', aged about 15 years, since 15.11.2011. He stated that his daughter 'D' had left for school at about 7:15 a.m, but had not returned back thereafter. The complainant expressed his suspicion that his daughter had been enticed/kidnapped by someone. On the basis of said complaint case FIR No. 285/11 was registered at PS Begumpur which was marked to ASI Prem Raj for investigation. During the course of S.C. No. 174/13 : State vs. Parmod : Page 1 of 22 investigations, the investigating officer made efforts to search for the missing girl. He also got wireless message sent to all the SHO's in Delhi and SSP's all over India and further got information regarding missing of child 'D' sent to NCR, SCRB, Doordarshan and CBI.
On 06.12.2011, complainant again came to PS and informed the I.O that his daughter 'D' had married accused Pramod resident of Village Thalia Nangal, PS Musajha, District Badaiu, U.P and was living with him at the said village. Though, efforts were made to search for the victim as well as the accused at disclosed destination, there was no clue of either of them. The I.O thus initiated proceedings to have accused declared as proclaimed offender.
On 21.06.2013, Smt. Gurma Devi, wife of complainant, informed the I.O that her daughter 'D' and accused were residing in a jhuggi at Sector8, near Police Chowk, Ambala. Accordingly, a raiding party comprising of lady Ct. Archna and HC Narender was organized by ASI Prem Raj, which conducted raid and apprehended victim 'D' and the accused as well as their four months old daughter from a jhuggie at Ambala and brought them to Delhi. The further investigation of the case thereafter were assigned to W/ASI Raj Devi, who got the victim and accused as well as their minor daughter medically examined. She also got recorded statement of the victim u/s 164 Cr.PC and thereafter produced the victim before concerned CWC at Hari Nagar, from where she was handed over in custody of her parents. During the course of further investigations, I.O obtained age proof of the victim from the school, wherein victim had studied. She also got the exhibits of the case sent to FSL Rohini. It was also revealed during the investigation that accused was already married to one Pushpa Devi, prior to his marriage with the victim, and had not taken divorce from his first wife. Accordingly, section 495 IPC and section 9 of the S.C. No. 174/13 : State vs. Parmod : Page 2 of 22 Prohibition of Child Marriage Act, 2006 were added. 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 363/366/376/495 IPC and 9 of the Prohibition of Child Marriage Act, 2006 were framed against the accused Parmod. 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 20 witnesses. Prosecutrix/victim child and other public witnesses
4. The victim 'D' has been examined as PW4. This witness failed to support the prosecution case and stated that she was above 18 years of age at the time of the incident and had got married with the accused of her own free will. She also deposed that her parents knew of her love affair with the accused but were opposed to her marriage with the accused and had threatened her that if she got married with the accused they would not let her stay with the accused and would have him implicated in false criminal cases. The PW4 further stated that at the time of their marriage, accused had already taken divorce from his first wife as per custom prevalent in his village and was living separately from her with the permission and consent of both the families as well as village elders and that she (PW4) was living happily with her husband and her child. The PW4 was aggrieved that her parents were still persisting with their opposition to her relationship with the accused and had got another case registered against him and were demanding Rs. 50,000/ from S.C. No. 174/13 : State vs. Parmod : Page 3 of 22 him. The victim identified her signatures on her statement u/s 164 Cr.PC i.e Ex.PW4/A and stated that she had narrated correct facts before the Ld. MM at that time.
Since the witness did not depose as per the case of the prosecution, Ld. Addl. PP resorted to putting these facts to the witness, at length, during her subsequent examination. During her further examination, the witness admitted that she had left her home to get married with the accused without disclosing anything to her parents and that she had got married with the accused before a court at Eta, U.P. She also admitted that she was living with the accused as his wife and had physical relations with him with her consent. She further admitted that she had told the police in her statement u/s 161 Cr.PC i.e mark PW4/A, that police officials from Delhi Police had come to U.P several times while searching for her but they (accused and the victim) used to come to know of their arrival before hand and used to flee away from their house. The victim then admitted that she had a small quarrel with the accused on the night of 18/19.09.2013 after which accused gave call to mother of PW4, who came to Ambala to take victim back with her to Delhi and that when her mother reached Ambala, accused and his family members quarreled with her mother and that her mother gave a call to the police, after which police from police station Begampur reached Ambala and brought back victim, her daughter and accused to PS Begumpur, at Delhi. The victim denied that she was less than 18 years of age as on the date of incident.
During her crossexamination by Ld. Defence counsel victim stated that she had joined the accused after he was released from jail and was living with him. She also termed it correct that she only had a small quarrel with the accused at Ambala and had not lodged any complaint against him for it as she wanted to S.C. No. 174/13 : State vs. Parmod : Page 4 of 22 stay with the accused.
5. The PW3 Smt. Birma is the mother of the victim. She deposed that the victim 'D' was her third born child and that she was aged about 17 years (when PW3 appeared to depose before the court on 07.04.2014). The PW3 further deposed that she was illiterate and that her daughter had gone missing from their home about 2½ years ago and when she could not be traced despite search they got a case FIR registered. The PW3 then deposed that about 1½ years after her kidnapping, her daughter 'D' gave her (PW3) a call on her mobile phone and asked her (PW3) to come to take her (victimD) and that when PW3 went to bring her daughter back, accused started beating her (victim 'D') and did not let her leave with PW3 and that she (PW3) gave a call at 100 number, after which local police from Ambala came and took them to police post and that ASI Prem Raj of PS Begum Pur was also informed and that her daughter, grand daughter and the accused were brought to Delhi by ASI Prem Raj while PW3 returned to Delhi separately by train. The PW3 further deposed about the medical examination of her daughter 'D' and about taking custody of 'D' from Nari Niketan after 34 days.
During her crossexamination, PW3 deposed that she had been residing in Delhi since last about 10 years and prior to the she was residing at her native village at District Eta, U.P. She also deposed that her daughter 'D' was born in village and that she did not go to school till such time that PW3 remained in village. The PW3 termed it correct that she had got her daughter 'D' admitted in a government school st in class 1 at Eta. She volunteered to state that her daughter 'D' could not go to school at Eta as they had shifted to Delhi. During her further crossexamination, PW3 stated that 'D' was aged about 5 years at the time of her admission in school. S.C. No. 174/13 : State vs. Parmod : Page 5 of 22 The PW3 then improved upon her statement and stated that 'D' was aged about 7 years at that time. She also stated that she had not got any document of age of her children, including 'D', prepared by MCD/Gram Panchayat etc. From the further crossexamination of PW3, it is brought that she had gone to Ambala with her son Ganesh, on being informed about birth of a child to her daughter 'D' by the doctor at the hospital where the child was born and that at that time she and her son stayed at the house of the accused. The PW3 denied that she had given a call to the police, from Ambala, as she and her other family members were not happy with the marriage of 'D' with the accused. She further denied that victim 'D' had been brought to Delhi forcibly. The PW3 termed it correct that presently she was having no complaint either against her daughter 'D' or against the accused as 'D' was residing happily with him and their daughter.
6. The PW6 Sopali is the father of the victim 'D'. He deposed about the complaint Ex.PW6/A, whereby he had reported about missing of victim 'D' from the house on 15.11.2011. He proved his complaint as Ex.PW6/A. During his cross examination by Ld. Defence counsel PW6 deposed that he was illiterate and that he had been residing at his native village at Eta, U.P prior shifting to Delhi.
7. The PW13 Smt. Pushpa Devi is the first wife of the accused. She deposed that she had got married with accused Pramod as per Hindu Rites and Ceremonies in the year 2007 and that she lived peacefully with him for about 23 months after which she was harassed and tortured in connection with demands of dowry by the accused and his family members. The PW13 further deposed that she was also brought to Delhi by the accused and stayed at Delhi for about one month and that S.C. No. 174/13 : State vs. Parmod : Page 6 of 22 thereafter accused raised a demand for cash amount which PW13 and her parental family members were unable to fulfill and hence she was turned out of the house by the accused. The PW13 then deposed that after a few months she came to know that accused had kidnapped a girl by the name of 'D' and that thereafter her father (father of PW13) talked to accused and asked him to take PW13 with him but accused refused to do so and further threatened to give divorce to PW13 as she had not borne him any child. The PW13 stated that she wanted to live with the accused and hence she had not filed any divorce proceedings against him and that she had filed a case for return of her dowry articles against the accused at Sahajahanpur.
During her crossexamination, the PW13 denied that she and accused had taken divorce from each other as per local customs in presence of gathering of respectables from both the families. The PW13 denied that since she had taken divorce from the accused, she had not initiated any action against the accused after coming to know that he had got married again with 'D'.
Witness with respect to age of the victim
8. The PW2, Ms. Sunita Dabas, is the teacher, from Government Girls Senior Secondary School, Begumpur, Delhi, wherein victim child/prosecutrix was admitted in sixth class. The PW1 produced the original admission record and proved copies of admission form submitted by Smt. Virma @ Brahma, mother of the victim child and SLC issued by feeder school i.e. Nagar Nigam Prathmik Balika Vidyalaya, Begum Pur, as Ex. PW2/A and Ex. PW2/B, respectively and stated that as per the school record, the date of birth of the victim/prosecutrix was 10.08.1997. The witness also proved the relevant entry in admission register qua the S.C. No. 174/13 : State vs. Parmod : Page 7 of 22 victim/prosecutrix as Ex. PW2/C and the original certificate issued by Principal of the her school as Ex. PW2/D. During crossexamination, the witness termed it correct that as per the record brought by her, no birth certificate of the child was furnished by the parents of the child at the time of her admission in the school and that in the absence of the Principal, her administrative work was looked after by some other senior most teacher, in the school. The witness volunteered to state that there was an office order issued by the Principal, as to who would look after the work in her absence. She further termed it correct that she did not have any personal knowledge of the record brought by her and that she was not present at the time of admission of the child 'D' in the school.
Doctor witnesses :
9. The PW8, Dr. Gurdeep Singh, conducted the general examination of the accused Parmod vide MLC Ex. PW7/A and thereafter referred him to forensic department for expert opinion and deposed regarding the same. He further deposed that on the same day, he also conducted general examination of prosecutrix D, vide MLC Ex.PW8/A and thereafter, referred her to gynecology department for detailed history, opinion, examination and management. He further deposed that on that day, child M d/o Parmod Kumar, 4 month old, female, was also examined in Casualty Department vide MLC Ex.PW8/B by then JR under his supervision and was referred to Pediatric Department, where the child M was further examined by Dr. Atul, who took blood sample of the child in a plain vial and handed over the same to the police constable.
S.C. No. 174/13 : State vs. Parmod : Page 8 of 22
10. The PW7 Dr. Manoj Dhingra, had examined the accused Parmod Kumar on 22.06.2013 and given opinion on the MLC Ex. PW7/A about the sexual potency of the accused and deposed regarding the same.
11. The PW9, Dr. Hemlata, SR Gynae, had examined the victim child vide MLC Ex. PW8/A. She deposed that patient/victim child refused for her detailed gynecological examination and that she recorded the statement of the patient/victim in this regard on the MLC itself.
Police witnesses :
12. The PW1, HC Ram Kumar, was posted as the duty officer at PS Begum Pur at the relevant time and had registered the case FIR in the present case. He proved the endorsement made by him on rukka as Ex. PW1/A ; computerized copy of FIR as Ex.PW1/B and certificate u/s 65B Evidence Act as Ex. PW1/C.
13. The PW12, ASI Prem Raj, deposed that 16.11.2011, PW6 Sh. Saupali came in the PS and got his statement Ex. PW6/A regarding kidnapping of his daughter D, recorded and that after making his endorsement on the said statement, he prepared Rukka Ex.PW12/A and on the basis of it, he got a case registered vide FIR no. 285/11, U/s363 IPC. He further deposed that during investigations, he got the wireless message flashed to all over India and also informed the missing persons squad, NCRB, CRO, got hue and cry notice published and also gave information in the local news paper and television channels, but all the efforts made by him to search the victim, went without success. He further deposed that on 06.12.2011, he came to know that accused Parmod Kumar S/o Sh. Jaswant Singh, S.C. No. 174/13 : State vs. Parmod : Page 9 of 22 R/o Vill. Thalia Nangla, Dis. Badayun, UP had kidnapped the victim child and got married with her and that the accused was living with the victim child at Dehradun. He further stated that on receiving this information, he added section 366 IPC in the present case and raided that place at Dehradun with his staff but no one was found there and that he also conducted raid at village Thallia Nangla twice, but there also accused and victim child were not available and thereafter, on return to Delhi, he got issued NBWs' against the accused and also initiated the proceedings U/s 82/83 Cr.PC, against the accused vide his applications Ex. PW12/B, Ex.PW12/C and Ex.PW12/D. The PW12 further deposed that on 21.06.2013, on receipt of an information about presence of the accused and prosecutrix at Sec8, Ambala, Haryana, through PW3 Smt. Brihma Devi (Mother of the victim child), he along with PW17 HC Narender and PW15 W/Ct. Archana went to concerned police post of Sec8 , Ambala, where, he met PW3 Smt. Brihma Devi, (mother of prosecutrix), PW4/prosecutrix, the accused, their minor daughter of four months and Smt. Ramkishori (mother of the accused). He further deposed about bringing the accused, the victim child and their daughter to PS Begumpur, about preparation of recovery memo of the prosecutrix and her child i.e. Ex.PW4/B and about arrest, personal search and disclosure statement made by the accused and proved the arrest memo as ExPW12/E ; personal search memo as Ex. PW12/F and disclosure statement as Ex.PW12/G, respectively. He further deposed that on 22.06.2013, he narrated the entire facts to the SHO and thereafter further investigation of the present case was transferred to PW10 ASI Raj Devi and that Section 376 IPC and 6 POCSO Act were also added by him in the present case after recording the statement of victim child.
S.C. No. 174/13 : State vs. Parmod : Page 10 of 22
During crossexamination, PW12 deposed that he had come to know about the whereabouts of accused Pramod through his cousin Shiv Kumar, who was also residing in the same locality. He further stated that he had received the marriage certificate of accused Pramod with victim D, through post, during investigation. The witness termed it correct that as per the marriage certificate the age of the victim was 19 years. The witness denied that he had recovered the victim child D only at the instance of her mother Smt. Birma Devi or that the victim child was not willing to come back to Delhi with her mother. He volunteered to state that in fact, victim D was complaining about the behaviour of accused towards her as he used to physically assaulted her. He termed it correct that the statement of victim u/s.161 CrPC i.e. Ex. PW12/X dated 22.06.2013 was recorded by him. The witness failed to recollect, if in the said statement itself, the victim child had told him that she was not ready to accompany them to Delhi as she wanted to live with her husband i.e. accused Pramod, but after going through the contents of the said statement, witness states that the factum of willingness of victim to live with her husband Pramod was so recorded in Ex. PW12/X. The PW12 further failed to recollect, if the victim had stated in her statement u/s.161 CrPC that she had established physical relations with accused as per her own will and consent. However, after going through the contents of the statement Ex. PW12/X, the witness stated that in the said statement, this fact was also recorded.
14. The PW15, Lady Ct. Archana had joined the investigations of the present case with PW12 ASI Prem Raj on 21.06.2013, at the time of recovery of the prosecutrix from PS Ambala, Police Chowki, Sector08, vide recovery memo Ex. PW4/B and deposed regarding the same.
S.C. No. 174/13 : State vs. Parmod : Page 11 of 22
15. The PW17, HC Narender Kumar had also joined the investigations of the present case with PW12 ASI Prem Raj on 21.06.2013 i.e. at the time of recovery of prosecutrix and arrest of the accused and deposed regarding the same. He also deposed about accused making a disclosure statement Ex. PW12/G.
16. The PW10, W/SI Raj Devi deposed that on 22.06.2013, on entrustment of the investigation of the present case, she got the prosecutrix D medically examined through W/Ct. Poonam vide MLC Ex. PW8/A, accused Parmod Kumar through Ct. Suresh vide MLC Ex. PW7/A and female child M (aged about 4 months) of the prosecutrix, vide MLC Ex. PW8/B. She further deposed about seizure of the exhibits taken from the accused and the daughter of the prosecutrix, by the concerned doctors, vide seizure memo Ex. PW10/A (of accused) and Ex. PW10/B (of daughter of prosecutrix). She further deposed about getting the statement Ex. PW4/A of the prosecutrix recorded u/s 164 Cr.P.C vide application Ex. PW10/C and about obtaining the copy of the said statement vide application Ex. PW10/D.
17. The PW18, lady Ct. Poonam deposed that on 22.06.2013, she got the victim D and her minor four months old daughter medically examined at SGM Hospital and that after medical examination, the concerned doctor handed over two sealed pullandas containing the blood samples of the patient and two sample seals to her, which, she handed over to IO ASI Raj Devi, who seized the same vide seizure memo Ex. PW10/A. S.C. No. 174/13 : State vs. Parmod : Page 12 of 22
18. The PW19, HC Ashok, deposed that on 24.07.2013, on the instructions of SHO and PW20 IO W/SI Manju Yadav, he along with Ct. Vikas went to Village Kanth, District Shahjahanpur, UP, for the investigation in the present case and met Sh. Chhanga Lal and his daughter Ms. Pushpa Devi, who was stated to be legally wedded wife of accused Pramod. He further deposed that he also made local inquiries regarding the marriage of Pushpa Devi with accused Pramod Kumar and that during the course of inquiry, he recorded the statement of Pushpa Devi, Chhanga Lal and other persons of the locality. He proved the statements of Pushpa Devi and Chhanga Lal as Ex.PW19/A and Ex.PW19/B respectively. He further deposed that he had also gone to the village of the accused and verified about his second marriage with the victim D and verified their marriage certificate (proved as mark Y) and obtained photocopy thereof.
19. The PW20, W/SI Manju Yadav, deposed that on 26.06.2013, after entrustment of the investigation of the present case, she got deposited the exhibits of the present case with FSL Rohini through PW14 Ct. Vikas and obtained the age proof of the victim child D from her school. She further deposed that she also got the marriage of accused with the victim D verified through HC Ashok from UP and that HC Ashok also made inquiry from the first wife of accused and that, thereafter, Section 495 IPC and Section 9 of Prohibition of Child Marriage Act were added.
During crossexamination, PW20 deposed that she did not collect the age proof of the victim from her first attended school.
Other formal witnesses :
20. The PW5, Sh. Dharmender Singh, learned MM, had conducted the S.C. No. 174/13 : State vs. Parmod : Page 13 of 22 proceedings u/s.164 CrPC and proved the same as Ex.PW5/A to Ex.PW5/C i.e. the application filed by IO for recording of statement of prosecutrix u/s.164 Cr.P.C as Ex.PW5/A ; the certificates given by PW5 as Ex.PW5/C and application for supply of copy of said statement, filed by IO, as Ex. PW5/C. The statement of the prosecutrix which was recorded by PW5, was proved as Ex. PW4/A.
21. The PW11, HC Prehlad Singh, was posted as MHCM at P.S. Begum Pur at the relevant time. He deposed about different entries made by him in Register No. 19 at the time of deposit of exhibits in Mal khana and in register no. 21 at the time of sending the exhibits to FSL Rohini and proved the said entries as Ex. PW11/A to Ex. PW11/C respectively.
22. The PW14, Ct. Vikas Malik, had taken the exhibits of the present case to FSL Rohini vide RC no. 95/21/13 and deposed regarding the same. He proved the copy of RC as Ex. PW14/A and copy of acknowledgment receipt as Ex. PW14/B.
23. After closing of prosecution evidence, statement of accused Parmod was recorded u/s 313 Cr.P.C., wherein, the accused stated that he was innocent and had been falsely implicated in this case by the parents of the prosecutrix. He further deposed that he had taken customary divorce from her first wife and thereafter, married the prosecutrix, who was above 18 years of age, at the time of marriage. The accused declined to lead evidence in his defence.
24. Arguments have been addressed by learned counsel for the accused as well as learned Additional PP for the State.
S.C. No. 174/13 : State vs. Parmod : Page 14 of 22
25. Learned Additional PP has contended that in the present case, the accused kidnapped a minor girl/prosecutrix from the lawful guardianship of her parents with intent that she may be compelled to marry him and be forced/seduced for illicit intercourse and thereafter raped her repeatedly and fathered her a child. She further contended that accused, without taking divorce from his first wife, contracted subsequent marriage with the prosecutrix, who was a minor girl aged about 15 years, in a temple and that these facts stand established from the statements of the prosecution witnesses, and hence, prosecution has proved its case beyond reasonable doubt against the accused and has accordingly prayed that accused be convicted for the charged offence.
26. Learned counsel for the accused on the other hand has contended that prosecution has miserably failed to prove its case against the accused and that accused is innocent and has been falsely implicated in the present case by the parents of the prosecutrix, who being a major had voluntarily got married with the accused. It is further contended that the accused had already taken divorce from his first wife Smt. Pushpa Devi as per local custom before he got married with the prosecutrix and that due to this reason Smt. Pushpa Devi did not file any complaint against the accused and/or the prosecutrix and that Smt. Pushpa Devi has been planted as a witness by the prosecution at the instance of the parents of the prosecutrix. It is contended that the parents of the prosecutrix are still opposed to her relationship with the accused and have been harassing the prosecutrix and the accused even though accused was released on bail in the present case. It is contended that since the accused and prosecutrix got married with each other of S.C. No. 174/13 : State vs. Parmod : Page 15 of 22 their own free will and consent and were major, no offence has been committed by the accused and it is accordingly prayed that accused be acquitted in the present case.
27. I have heard the arguments put forward by ld. Addl. PP as well as learned counsel for accused Parmod 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.
Age of the prosecutrix/victim child
28. The first issue which arises for consideration is whether victim D is a "child" as defined in section 2 (d) of POCSO Act. In order to prove that the victim D was less than 18 years of age, as on the date, she went missing from her house i.e 15.11.2011, the prosecution has examined Ms. Sunita Dabas, teacher from the school, wherein, the victim was admitted in 6th class as PW2. This witness deposed that victim D was got admitted in school on basis of admission form submitted by Virma, mother of the victim child and SLC issued by Feeder School, wherein, the date of birth of the victim child was mentioned as 10.08.1997. She proved the copies of the said documents as Ex. PW2/A and Ex. PW2/B, respectively, by producing the original record.
29. In order to compute the age of the victim, the court is required to proceed as per rule 12 of Delhi Juvenile Justice (Care and Protection of Children) Rules, as has been held in the case of Jarnail Singh Vs. State of Haryana, Cri. Appeal No.1209 of 2010 decided on 01/07/2013. Since in Delhi Juvenile Justice (Care and Protection S.C. No. 174/13 : State vs. Parmod : Page 16 of 22 of Children) Rules, have been enacted, which have come into force w.e.f. 24.09.2009, the same would be applicable for determination of the age of the victim child. The said rule is as under :
12.Procedure to be followed in determination of Age.
(1).....
(2).....
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -
i. the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
ii. the birth certificate given by a corporation or a municipal authority or a panchayat;
iii. the matriculation or equivalent certificates, if available;
30. In the present case, the record from the First Attended School i.e. the Feeder School, which had issued SLC Ex. PW2/B has not been produced before the court for it to draw conclusion as to on what basis, the mother of the victim had mentioned her date of birth (date of birth of victim) as 10.08.1997, in the school record. The mother of the victim was examined as PW3 and from her deposition, which has reproduced at length hereinabove, it is clearly brought out that she is illiterate and does not know date of birth of any of her children including the victim child. Further, as per PW3, the victim child was either 5 years old or 7 years old at the time of her admission in class Ist, but she has also stated that the victim was got admitted in S.C. No. 174/13 : State vs. Parmod : Page 17 of 22 first class at Eta and thereafter, in a school at Delhi, since they shifted to Delhi. The PW3 has not clarified as to what was the age of the victim, when she got victim admitted in the school at Eta or her age at the time of her admission in school at Delhi. The PW6 Sopali, father of the victim could also not clarify regarding the age of the victim and merely stated that she was aged about 15 years, when she went missing from the house. The victim on the other hand, has claimed that she was above 18 years of age, when she went away from her house to get married with the accused. Considering these discrepancies in the testimonies of the material prosecution witnesses i.e. the testimony of the parents of victim D and the victim D, it was necessary for the prosecution to produce the record from the first attended school of the victim child in order to enable the court to draw conclusion regarding the correct age of the victim, but the prosecution has failed to do so and hence an adverse inference is liable to be drawn against the prosecution.
31. Even otherwise, the prosecutrix in the present case was examined as PW4 and she did not support the prosecution case at all. Rather, she stated that she got married with the accused of her own free will and is having one child and that at that time, she was above 18 years of age. She further stated that her parents were well aware about her love affair with the accused, but they were opposed to it and even threatened her that in case, she got married with the accused, they would not let her stay with the accused and would have the accused implicated in a criminal case. She further stated that at the time of their marriage, the accused had already taken divorce from his first wife as per customs prevalent in his village and had been living separately from his first wife with the permission and consent of both the families and elders of the village.
S.C. No. 174/13 : State vs. Parmod : Page 18 of 22
32. The PW4 was crossexamined at length by learned Addl. PP, but nothing favourable to the prosecution could come on record.
33. Even in her statement recorded u/s 164 Cr.P.C, the victim D stated as under : "Karib 11/2 saal pahle, main apne ghar me bina kisi ko bataye, Parmod ke saath chali gai. Main Parmod ko pahle se janti thi. Ghar se jaane ke baad, maine aur Parmod ne apni marji se shadi karli thi. Shadi ke waqt, main balig thi. Ab shadi se mujhe ek beti hai, aur main Parmod ke saath hi rahna chahti hoon."
34. In view of the statement of victim D u/s 164 Cr.P.C as well as her statement before the court, no offence u/s 363/366/376 IPC is made out against the accused.
35. Now coming to the allegations u/s 495 IPC, it is observed that said offence is punishable under Chapter XX of the IPC and thus, as per Section 198 of Code of Criminal Procedure, 1973, the court cannot take cognizance of an offence u/s 495 IPC except upon a complaint made by some person aggravated by the offence. The Section 198 of the Cr.P.C provides as under : "198. Prosecution for offences against marriage - (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence :
Provided that S.C. No. 174/13 : State vs. Parmod : Page 19 of 22
(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the court, make a complaint on his or her behalf ;
(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorized by the husband in accordance with the provisions of subsection (4) may make a complaint on his behalf ;
(c) where the person aggrieved by an offence punishable under [section 494 or section 495] of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister [or, with the leave of the Court, by any other person related to her by blood, marriage or adoption]. (2) For the purpose of subsection (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code ;
Provided that in the absence of the husband, some person who had care of the woman on his behalf at that time, when such offence S.C. No. 174/13 : State vs. Parmod : Page 20 of 22 was committed may, with the leave of the Court, make a complaint on his behalf.
(3) .......
(4) .........
(5) ......... "
36. The following observation by Hon'ble Supreme Court in case of A. Subhash Babu vs. State of A.P. & Anr., in Crl. Appeal no. 1428 of 2011 (Arising out of S.L.P (Crl.) no. 6349 of 2010) decided on 21st of July 2011, also make it clear that though, the 'second wife' entitled to lodge complaint against a husband, who contracted marriage with her by concealing former marriage, such a prosecution can be initiated only by filing a complaint by her : "............ The reference to Section 494 IPC in Section 495 IPC, makes it clear that Section 495 IPC is extension of Section 494 IPC and part and parcel of it. The concealment spoken of in Section 495 IPC would be from the woman, with whom the subsequent marriage is performed. Therefore, the wife with whom the subsequent marriage is contracted after concealment of former marriage, would also be entitled to lodge complaint for commission of offence punishable under Section 495 IPC. Where second wife alleges that the accused husband had married her according to Hindu rites despite the fact that he was already married to another lady and the factum of the first marriage was concealed from her, the second wife would be an aggrieved person within the meaning of Section 198 Cr.P.C. If the woman with whom the second marriage is performed by concealment of former S.C. No. 174/13 : State vs. Parmod : Page 21 of 22 marriage is entitled to file a complaint for commission of offence under Section 495 IPC, there is no reason why she would not be entitled to file complaint under Section 494 IPC more particularly when Section 495 IPC is extension and part and parcel of Section 494 IPC...."
37. In the present case, no such complaint was filed either by the first wife of the accused or her father and as such, Section 198 Cr.P.C bars the court to take cognizance of offence u/s 495 IPC against the accused specially when, the present case does not fall within the exceptions mentioned in section 198 itself, because the victim was neither a minor nor did she have a guardian appointed to act on her behalf at that time.
38. After consideration of the entire material placed on record by the prosecution, I am of the opinion that the prosecution has failed to prove its case against accused Parmod u/s 494 IPC also. Accordingly, I acquit accused Parmod of the charged offences, by giving him benefit of doubt.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 16.09.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C. No. 174/13 : State vs. Parmod : Page 22 of 22