Delhi District Court
State vs Accused on 23 February, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS
JUDGE, (SPECIAL FAST TRACK COURT) KARKARDOOMA
COURTS, DELHI
Unique Case I.D. No.02402R0333052012
SC NO. 30/13 Date of Institution :20.12.2012
FIR No.245/12 Date of Argument :22.02.2013
PS Nand Nagri Date of Order :23.02.2013
U/S 363/366/376 IPC
State Versus Accused
Deepak Singh
S/o Sh. Brahm Pal Singh
R/o G-12, Ram Park,
Loni Ghaziabad, U.P.
JUDGMENT
The facts in brief of the prosecution case are that on 18.07.2012 Smt. __Y__, here in after referred to mother of the prosecutrix, r/o _______Z_______ arrived at P.S. Nand Nagri and made her statement that her daughter _______X______, here in after referred to as the prosecutrix, aged about 17 years left her house without any information. She searched her with all her relative but could not searched her. She gave descriptions of her girl and FIR No.245/12 at P.S. Nand Nagri u/s 363 IPC was recorded. Prosecutrix returned at her house and mother of the prosecutrix informed the police about return of prosecutrix on 25.08.2012 and in that regard DD No.20A was recorded. The prosecutrix was taken to GTB Hospital SC No.30/13 State vs. Deepak Singh Page 1 of 17 where her medical examination was conducted. She was referred for further examination by Gynecologist but she refused to undergo her internal medical examination. Accused was arrested on 29.08.2012 and his arrest memo and personal search memo were prepared. He was interrogated and his disclosure statement was recorded. He was also taken to GTB Hospital for his medical examination. Doctor collected his samples and handed over the same to Ct. Mintu Kumar who took him to hospital for medical examination. He also observed that accused was capable to perform sexual intercourse. Ct. Mintu handed over the exhibits to I.O. who seized those vide seizure memo. The prosecutrix was produced before Ld. M.M. for recording of her statement u/s 164 of the Code of Criminal Procedure, here in after referred to as the Code, and her statement was recorded on 27.08.2012. She was again taken to said hospital and she gave consent for her internal medical examination. IO collected documents from Nagar Nigam Prarthamik Balika Vidyala for ascertaining age of the prosecutrix. IO recorded statement of witnesses and on completion of investigation filed a charge sheet against the accused for his trial for the offences punishable u/s 363/366/376 IPC.
2. Ld. Metropolitan Magistrate after supplying of SC No.30/13 State vs. Deepak Singh Page 2 of 17 copies of charge sheet and documents to the accused committed this case to the court of sessions and Hon'ble Additional Sessions Judge, I/C, North East District assigned the case to himself.
3. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
4. Vide order dated 10.01.2013 this court opined that prima facie case for framing of charge against the accused for the offences punishable u/s 363/366/376 IPC was made out. Therefore, charge against the accused for his trial for the said offences was framed and read over to him in vernacular language. He pleaded not guilty and claimed trial.
5. The prosecution, in order to prove its case examined ASI Fateh Singh as PW1; Ct. Meenu Malik as PW2; Dr. Nidhi Arora, SR, GTB Hospital as PW3; W/Ct. Nirmal Kaur as PW4; Smt. _Y-1_, as PW5; Smt. __Y__, mother of prosecutrix as PW6; Sh. Sunil Gupta, Ld. M.M. as PW7; Dr. Anil Singh, JR, as PW8; _______X______, prosecutrix as PW9; Smt. Santosh Kumari as PW10; Ct. Mintu as PW11;
SC No.30/13 State vs. Deepak Singh Page 3 of 17SI Usha as PW12; and SI Rajeev Kumar as PW13.
6. After closing of prosecution evidence statement of the accused u/s 313 of the Code was recorded. All the material and incriminating evidence was put to him. Accused either denied or expressed his ignorance about the material prosecution evidence. However, he admitted that he was arrested on 29.08.2012 from his residence, he was taken to GTB Hospital for his medical examination and his samples were taken. Accused opted not to lead evidence in his defence.
7. After closing of evidence by the prosecution, I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for accused and perused file.
8. In order to prove its case that accused committed an offence u/s Section 363 IPC, prosecution has to prove firstly, that accused took or enticed the prosecutrix out of keeping of her lawful guardian; secondly, that the prosecutrix was a minor that is under 18 years of age; and thirdly, that it was done by the accused without the consent of her guardian.
SC No.30/13 State vs. Deepak Singh Page 4 of 179. In order to prove its case that accused committed an offence of kidnapping, abducting or inducing women to compel marriage, etc. punishable u/s 366 IPC, prosecution has to prove firstly that the prosecutrix was abducted by the accused, i.e., accused either by force compelled or by any deceitful means induced the prosecutrix to go from her place and secondly, the prosecutrix was abducted with the intention that the prosecutrix may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced to do illicit intercourse.
10. In order to prove its case for the offence of rape, punishable u/s 376 IPC, the prosecution has to prove firstly that accused committed sexual intercourse with the prosecutrix and secondly, sexual intercourse was committed against her will or under false pretext to marry her.
11. It has been argued on behalf of Ld. Additional Public Prosecutor that prosecution witnesses have proved all the offences against the accused beyond any reasonable suspicion and shadow of doubt and the accused is liable to be held guilty and convicted for the SC No.30/13 State vs. Deepak Singh Page 5 of 17 said offences.
12. On the other hand, Ld. Defence Counsel for accused submitted that the prosecutrix did not support the prosecution case. She herself went with the accused and she was the consenting party in performing sexual intercourse with accused. The conviction cannot be based on such a piece of evidence. He submitted that accused is entitled for acquittal by getting benefit of doubt.
13. In support of his arguments, he relied on a case Courts on its own motion (Lajja Devi) and Ors. v. State & Ors., 2012, (7) LRC 215 wherein Delhi High Court observed that:
"51. If the girl is more than 16 years, and the girl makes a statement that she went with her consent and the statement and consent is without any force, coercion or undue influence, the statement could be accepted and court will be within its power to quash the proceedings u/s 363 or 376 IPC."
14. After considering the arguments of Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel and on analyzing the prosecution evidence on record, I come to the conclusion that prosecution has failed to prove its case against accused beyond any reasonable suspicion and shadow of doubt. The reasons which support SC No.30/13 State vs. Deepak Singh Page 6 of 17 my conclusion are firstly that the prosecutrix, instead of supporting the case of prosecution, supported the defence of the accused. She as PW9 stated that she did not remember her date of birth. She was eldest child of her parents. She had gone with the accused as she fell in love with him. She remained with the accused present in the court for about one and half month. She was kept in Loni for about 15 days and thereafter she was taken to MP. They maintained physical relations at her own will. She did not talk with her relative during period of her stay with the accused. She alongwith accused arrived at PS where police recorded her statement. She was taken to hospital where she refused for her medical examination. She used to talk with the accused on telephone. She had accompanied the accused at her own will. Accused did not use any force to accompany him. She was produced before Ld. M.M. where her statement Ex.PW7/A was recorded. She did not remember her age at the time of incident. She was declared hostile and cross examined by Ld. Additional Public Prosecutor and she stated that she did not remember whether she stated before Ld. MM that her age was 16 years. She admitted that before Ld. MM she stated that accused had taken her on the pretext of roaming with him and that she was taken to her friend where he maintained physical relations. She expressed her SC No.30/13 State vs. Deepak Singh Page 7 of 17 ignorance about her date of birth as 12.02.1994. She admitted that she talked with her aunt _Y-1_ and mother on telephone during the period of her missing of her house. She did not state before the police that accused maintained physical relations without her consent. In cross examination conducted by Ld. Defence Counsel, she stated that she did not remember in which year she was 18 years old. Her mother was with her when she was taken for her medical examination. She was not kidnapped by the accused and accused maintained physical relations with her at her own will. She wants to marry him as they are in love with each other.
15. Secondly, she did not support the prosecution case even before Ld. M.M. when her statement u/s 164 of the Code was recorded. She, inter alia, stated in her statement Ex.PW7/A that she wants to marry with accused Deepak. She prayed before Ld. M.M. for solemnization of her marriage with the accused. She expressed her firm decision for marrying only with accused.
16. Thirdly, PW6 also did not support the prosecution case. She stated that prosecutrix was found missing. She reported the matter to the police subsequently, she produced date of birth record and SC No.30/13 State vs. Deepak Singh Page 8 of 17 photograph of the prosecutrix to the police. As she did not support the prosecution case, she was declared hostile. In her cross examination conducted by Ld. Addl. Public Prosecutor she stated that her daughter refused for her medical examination initially and thereafter she agreed and that her daughter was taken by the accused. In cross examination conducted by Ld. Additional Public Prosecutor, she stated that she did not remember the date of missing of her daughter. She also stated that her daughter wants to marry the accused.
17. Fourthly, testimony of PW5 is of formal nature. She deposed that the prosecutrix was found missing from her house and after 15-20 days of her missing prosecutrix made telephone call to her on her mobile and she supplied the telephone number to the police. In cross examination she stated that she did not know the date of birth of the prosecutrix.
18. Fifthly, the other prosecution witnesses are formal in nature. For example, PW1 proved copy of FIR as Ex.PW1/A; PW2 proved the fact of taking the prosecutrix before CWC for interim custody and for taking her to GTB hospital for her examination; PW3 proved MLC of prosecutrix as Ex.PW3/A; PW4 proved the fact of taking the SC No.30/13 State vs. Deepak Singh Page 9 of 17 prosecutrix again to GTB Hospital for her medical examination; PW7 is Ld. M.M. who proved statement of prosecutrix recorded u/s 164 of the Code as Ex.PW7/A and his certificate of correctness as Ex.PW7/B; PW8 proved emergency sheet Ex.PW8/B of prosecutrix and MLC of accused as Ex.PW8/A and emergency sheet of accused as Ex.PW8/D; PW10 proved documents regarding date of birth of prosecutrix as Ex.PW10/A to Ex.PW10/D for showing her date of birth as 12.09.1994; PW11 proved arrest memo of accused as Ex.PW11/A and personal search memo as Ex.PW11/B, disclosure statement Ex.PW11/C and seizure memo Ex.PW11/D. PW12 and PW13 are Investigating Officers.
19. Sixthly, in a case Uday v. State of Karnataka, AIR 2003 SC 163: 2003 AIR SCW 1035, the prosecutrix was a grown up girl studying in a college. She was deeply in love with the accused appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why SC No.30/13 State vs. Deepak Singh Page 10 of 17 she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to it. She thus freely exercised a choice between resistance and assent. The Apex Court held that:
"The consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a 'misconception of fact'. A false promise is not a fact within the meaning of the Code. There is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. The Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them"
20. In re, Anthony alias Bakthavatsalu, AIR 1960 Mad 308, it was observed :
"A woman is said to consent only when she agrees to submit herself while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former."
21. In a case Sonu v. State (NCT) of Delhi, 2010 [2] JCC 1337, Delhi High Court observed that:
SC No.30/13 State vs. Deepak Singh Page 11 of 17"11. Prosecutrix being more than 16 years of age and having accompanied the appellant of her own free will and accord; she being a consenting party, ingredients of the offence under Section 376 IPC are not attracted in this case. Accordingly, appellant is acquitted of the offence under Section 376 IPC.***
13. Prosecurtix having herself accompanied the appellant to his village staying with him for about one week, it cannot be said that appellant had taken her away from the protection of her lawful guardian within the meaning of Section 361 IPC. Reliance is also placed on S. Veradarajan vs. State of Madras, reported in AIR 1965 SC 942.
14. Ingredients of offence under Section 366 IPC are also not attracted in this case in absence of any evidence to show that appellant had taken prosecurtix with him by using force or inducement. The statement of prosecurtix shows that she willingly accompanied the appellant to his village and stayed with him there.
15. Accordingly, I am of the view that no offence under section 366 IPC is made out. Appellant is acquitted of the charges under Sections 363/366 IPC as well."
22. In a case, Manish Singh v. State Govt. of NCT & Ors., 2006(1) RCR (Criminal), Delhi High Court observed that:
"9. In these circumstances, continuation of criminal proceedings arising out of FIR No.217/03 under Section 363 IPC Police Station Sarojini Nagar would be an exercise in futility. Besides, it would also be detrimental to the matrimonial life of the couple and of the infant. Lalita being around 17 years of age, on the verge of majority, having reached the age of discretion, had accompanied Prabhu of her own volition without any kind of enticement or inducement or force from any one. There was, thus, no taking away or enticing of a minor out of the keeping of a lawful guardian. Essential ingredients of the offence of kidnapping are missing."SC No.30/13 State vs. Deepak Singh Page 12 of 17
23. In a case, Sagar Kumar v. State of Haryana, 2011(1) RCR (Criminal) 621, Punjab and Haryana High Court observed that:
"17. Admittedly, the prosecution has not proved any document certificate on record whereby it can be ascertained that the prosecurtix was minor on the day of occurrence. As per the statement of Dr. B.B. Aggarwal, PW2 the prosecutrix was abou 15 ½ to 16 years with variation of up to two years on either side. From the testimony of Dr. Renu Sharma, PW12, the secondary sex charaters of the prosecurtix were found well developed which suggests that the variation as pointed out by Dr. B.B. Aggarwal, deserved to be counted towards higher side of her age. Accordingly, the prosecurtix was more than 16 years of age.***
21. The appellant was also about 18 years of age at the time of occurrence. From the cumulative reading of the facts on record, it appears that both of them had some affair and the prosecutrix eloped with the appellant which is apparent from the material improvements she has made in her statement while deposing before the Court.
22. Resultantly, the appeal in hand is allowed and the appellant is acquitted of the charges framed against him."
24. In a case, Kuldeep Kumar Mehto v. State of Bihar, 1998, SCC (Cri.) 1460, wherein the Apex Court observed that:
"11. Then coming to the conviction of the appellant under Section 376 IPC, although both the courts below have held after accepting the evidence of the prosecutrix as being truthful that the appellant had forcibly committed the rape, we are of the opinion that the said finding is unsustainable. The prosecutrix had sufficient opportunity not only to run away from the house at Ramgarh but she could have also taken the help of the neighbours from the said village. The medical evidence of Dr. Maya Shankar Thakur, PW5 also SC No.30/13 State vs. Deepak Singh Page 13 of 17 indicates that there were no injuries on the person of the prosecutrix including her private parts. Her entire conduct clearly shows that she was a consenting party to the sexual intercourse and if this be so, the conviction of the appellant under Section 376 IPC cannot be sustained. There is one more additional factor which we must mention that it is not the case of the prosecutrix that she was put in physical restraint in the house at Ramgarh, with the result that her movements were restricted. This circumstance also goes to negative the case of forcible intercourse with the prosecutrix by the appellant."
25. In a case, K.P. Thimmappa Gowda v. State of Karnata, AIR 2011 SC 2564 the Apex Court observed that:
"13. In the present case, the facts are that Rathnamma herself stated in her evidence that she had sex with the appellant on several occasions. It is also an admitted fact that the FIR against the appellant was lodged just a few days before the birth of Rathnamma's child, which means there is delay of over 8 months in lodging the FIR. The finding of the trial court, which has not been disturbed by the High Court, is that Rathnamma was about 18 years of age at the relevant time. On these facts a view is reasonably possible that Rathnamma had sex with the appellant with her consent and hence there was no offence under Section 376, IPC because sex with a woman above 16 years of age with her consent is no rape."
26. The principles of law laid down in case of Uday v. State of Karnataka, (supra), and In re, Anthony alias Bakthavatsalu (supra), Sonu v. State (NCT) of Delhi, (supra), Manish Singh v. State Govt. of NCT & Ors., (supra), Sagar Kumar v. State of Haryana, (supra), Kuldeep Kumar Mehto v. State of Bihar, (supra), and K.P. Thimmappa SC No.30/13 State vs. Deepak Singh Page 14 of 17 Gowda v. State of Karnata, (supra), are applicable on the facts of the present case and therefore, it is held that the prosecution could not prove lack of consent of the prosecutrix or that accused abducted her or made physical relations with her without her consent.
27. Seventhly, my attention goes to a case reported as Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, wherein it was inter alia held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."
The principles of law laid down in above case are applicable on the facts of present case and therefore, it is held that accused is entitled to get benefit of doubt as in the present case two views, one, leads to his innocence and another leads to his involvement in the crime are possible.
28. Eighthly, the accused has succeeded in creating doubt in prosecution case so he is entitled to get benefit of doubt.
SC No.30/13 State vs. Deepak Singh Page 15 of 1729. My decision finds support by the case Ajmer Singh and another v. State of Haryana, II-1989(1) Crimes 424, it was held by P&H High Court that:
"It is not necessary for the accused to substantially prove their plea. Suffice it to say that if the accused succeeds in creating a doubt, they would be entitled to benefit of it."
30. Lastly, it is one of the basic principles of criminal jurisprudence that let hundreds of criminal may go unpunished but one innocent person should not be punished. It would be just fair and appropriate, if accused is given benefit of doubt as the prosecution has failed to prove its case against him beyond any reasonable suspicion or shadow of doubt.
CONCLUSION
31. Consequent upon above reasons, discussion and evidence on record and particularly discussed here in above, it is held that the prosecution has failed to prove its case against the accused Deepak Singh beyond any reasonable suspicion or shadow of doubt that he kidnapped the prosecutrix from her lawful guardianship or accused enticed or took away the prosecutrix who was a minor girl, less than 18 years of age on the date of incident out of keeping of her lawful guardianship without the consent of her guardian/complainant or he kidnapped or SC No.30/13 State vs. Deepak Singh Page 16 of 17 abducted her to compel or seduced her to illicit intercourse or committed sexual intercourse with her forcibly against her will and without her consent. Therefore accused is entitled to get benefit of doubt. Resultantly, by giving benefit of doubt the accused is acquitted for the offence of kidnapping from lawful guardianship, offence of kidnapping/abducting/inducing woman to compel marriage, etc. and offence of rape punishable u/s 363/366/376 IPC, respectively.
32. Accused is in J.C. He be released forthwith if he is not required in any other case.
33. However, accused is directed to furnish within seven days from the date of his release from the jail his personal bond for a sum of Rs.20,000/- with one surety of like amount as per provisions of Section 437A of the Code for a period of six months.
34. After furnishing of surety bonds file be consigned to Record Room.
Announced in the Open Court Dated: 23.02.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.30/13 State vs. Deepak Singh Page 17 of 17