Delhi District Court
Sc No. 198/14 : Fir No. 781/14 : Ps Vijay ... vs Dharam Pal on 7 September, 2015
SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01:
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI
(Sessions Case No. 198/14)
Unique Identification No.: 02404R0311172014
State V/s Dharam Pal
FIR No. : 781/14
U/s : 363/366/376 IPC
& 4 of POCSO Act
P.S. : Vijay Vihar
State V/s Dharam Pal
S/o Sh. Kamla Lal
R/o H. No. H11, Vijay Viha,
PhaseII, Delhi
Permanent Address
Village Jaria, TehsilSaria,
Hamirpur, UP
Date of institution of case : 26.09.2014
Date of arguments : 01.09.2015
Date of pronouncement of judgment : 07.09.2015
Acquitted Page 1 of 25
SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal
J U D G M E N T:
BRIEF FACTS OF THE CASE :
1. The facts of the case as borne out from the record are that on 18.07.2014, at about 5.40 pm, complainant Sh. Mahender Singh son of Sh. Jagdish Prasad went to police station Vijay Vihar and got his statement recorded with regard to missing of his daughter R, aged about 14 years (the identity of the prosecutrix has been withheld, hereinafter referred to as 'prosecutrix') and stated that he had been doing work of ironing the clothes and on that date, at about 6.30 am, prosecutrix along with her younger sister had gone to her school i.e. G.G.SSS Avantika, Sector01, Rohini, Delhi and from the school, prosecutrix's sister telephoned him and told him that prosecutrix had not gone to school and thereafter, he made efforts to search her, but in vain. He raised suspicion on accused Dharampal, a resident of H11, Vijay Vihar, Phase2, for having enticed and kidnapped the prosecutrix and requested for legal action.
On the basis of the aforesaid statement, FIR in the matter u/s 363 IPC was registered. The investigation of the matter was entrusted to PW13 SI Sonu Ram, who also made efforts to search her, but to no avail. On 20.07.2014, prosecutrix along with her mother herself went to the PS Vijay Vihar and thereafter, on the Acquitted Page 2 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal directions of the SHO, the further investigation of the case was assigned to PW8 W/ASI Krishna, who made inquiries from the prosecutrix, recorded her statement, got her medically examined and thereafter, seized the exhibits vide seizure memo. During investigation, the accused was arrested, subjected to medical and potency examination and his exhibits were also seized. She got recorded the statement of prosecutrix u/s 164 Cr.P.C and also produced her before the Child Welfare Committee. Exhibits of the case were also sent to FSL, Rohini. After conclusion of the investigation, the charge sheet was prepared and filed in the court.
2. After filing of charge sheet, copies of documents were supplied to the accused and thereafter, arguments on the point of charge were heard and on 12.12.2014, charges u/s 363/366 IPC and 5 (l) of the Protection of Children from Sexual Offences Act, 2012, (hereinafter referred to as "Act") punishable u/s 6 of Act, alternatively u/s 376 (2) (n) IPC were framed against the accused, to which, he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined as many as 13 witnesses, whereafter the PE in the matter was closed and statement of accused u/s 313 Cr.P.C was recorded, wherein he claimed himself to be innocent and having been falsely implicated in the case by the prosecutrix at the instance of Acquitted Page 3 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal her mother. The accused did not wish to lead defence evidence.
4. I have heard arguments advanced at bar by Ld.Addl.PP on behalf of State and Ms. Urmila Yadav, ld. LAC for the accused and perused the entire material on record. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which can be broadly classified into the following categories :
(a) Prosecutrix and her family members
(b) Medical and Forensic Evidence
(c) Formal witnesses
(d) Evidence with regard to age of the prosecutrix
(e) Evidence of police officials of investigation.
Prosecutrix and her family members
5. The prosecutrix in the present case was examined as PW3 and the relevant portion of her testimony is as under : "xxxxx ..... Ghatna ke samay mein 8th class mein Govt. Girls Sr. Secondary School, Avantika, Rohini mein padhti thi. Accused Dharam Pal hamare gali mein hi kiraye ke makaan Acquitted Page 4 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal mein rehta tha. Jab mein school jaati thi, to accused mera picha karta tha. Accused kehta tha ki wah mujhse shaadki karna chahta hai. 18.07.2014 ko accused mujhe school ke paas mila aur usne mujhe pakad liya aur jabardasti Auto mein bithakar, Pitampura Metro Station le gaya. Phir wahan se accused mujhe Metro se kisi namaloom jagah le gaya aur wahan se mujhe Mandir mein le gaya aur Mandir mein accused ne mujhse jabardasti shaadi kar li. Ukse baad, accused Mujhe ek room par le gaya aur room ka tala khola, aur raat ko wahin ruka aur mere saath sharirik sambadh banaye, wah sab kuch kiya jo pati patni ke beech hota hai. Ye sab accused ne mere ichaa ke bina kiya. Subah, accused mujhe kamre ke andar bandh karke aur bahar se taala lagakar chala gaya. Mein madad ke liye chilai, wahan par rehne wale log aaye aur unhone kamre ka tala toda aur mujhe uss kamre se bahar nikala. Wahan se mein 970 number bus Vijay Vihar ke liye pakadi aur mein apne ghar wapas aa gayi. Aur meine ye sabhi batein apni mami ko batai aur meri mummy mujhe PS le gayi. ........"
Acquitted Page 5 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal During her crossexamination by learned legal aid counsel, the witness stated as under : "xxxxx Mein present school mein 3rd class me admission karaya tha. Uss se pehle mein gaon mein padhti thi. Mein ek baar bhi class mein fail nahi hui hu. Mein accused se ghatna ke din se pehle kabhi nahi mili thi. Vol. Haan usse pehchanti jaroor thi, kyunki wo hamari gali mein hi rehta tha. Ghatna ke din subah 6.30 baje accused mujhe mere school ke bahar mila tha. School ka time 7.00 AM ka tha. School ke liye mein ghar se akeli hi gayi thi tatha Kanta mere saath nahi thi. Kanta ko mein jaanti hi nahi hu. Meri Kanta naam ki koi behen nahi hai. Ye kehna sahi h ki uss samay school ke aur bache bhi school mein aa rahe the. Mujhe Auto ka registration number nahi pata hai, uss Auto ko ek driver chala raha tha. Meine auto driver ko auto rokne ke liye bola tha. Uss auto mein accused ke teen dost aur the. Meine un teen lakdo ke baare mein naa to police ko aur naa hi Judge Sahiba ko bataya tha, kyunki iss baare mein unhone pucha hi nahi Acquitted Page 6 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal tha. Mujhe Metro Stn ka naam nahi pata, jahan par accused mujhe le gaya. Auto mein se hum chaaro utare aur chaaro hi Metro se kisi namaloom jagah gaye. Auto ka kiraya accused ne diya, par kitna diya, muje nahi pata. Accused ne hi mera Metro ka token kharida tha. Meri metro par koi checking nahi hui thi. Mein Metro Stn par kisi ko nahi bata payi kyunki accused ne mere muh white colour ke hanky se baandha hua tha. Muh baandhne wali baat meine pehle police ko aur judge sahab ko nahi batai thi, kyunki unhone iss bare mein pucha hi nahi tha. Ye kehna sahi h ki Metro Stn par police wale khade the. Mein mandir ka naam aur pata nahi jaanti tatha meine koi aisa board jis par mandir ka naam wah pata likha ho, nahi padha. Shaadki ke waqt mere muh par laga kapda khol diya tha. Panditji ne wahan shaadi ke mantra bole the, gathbandhan bhi karaya tha. Shaadi ka sara saaman accused lekar aaya tha. Warmala bhi dali thi, sindoor bhi lagaya tha. Wahan Panditji ko meine ye nahi batya tha ki accused mujse jabardasti meri icha ke khilaaf shaadi kar raha hai. Accused ke dost ne hamari shaadi ki photo khinchi thi. Mujhe nahi pata photographer kisne bulwaya tha, parantu Acquitted Page 7 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal uski payment accused ne ki thi. Shaadi ke baad Panditji ne Shaadi ka certificate bi bana kar diya tha. Uss certificate par mere tatha accused ke photo lage the tatha hamare sign bhi hue the. Wahan humne Marriage Register par bhi sign kiye the. Shaadi ke baad accused ke dost apne ghar chale gaye the. Mujhe nahi pata mandir ke kagazo mein accused ne meri kya umar likhwai thi. Apne pita ka naam tatha ghar ka pata meine khud bataya tha. Mujhe yaad nahi h ki maine police ko ya Judge Aunty ko ye bataya tha ki, "Subah, accused mujhe kamre ke andar bandh karke aur bahar se taala lagakar chala gaya. Mein madad ke liye chilai, wahan par rehne wale log aaye aur unhone kamre ka tala toda aur mujhe uss kamre se bahar nikala."
Mein accused Dharampal k saath kamre par do din rahi thi. Ye baat sahi h ki mein accused Dharampal ko pasand karti thi. ......
....xxxx"
6. PW5 Radhika, the mother of the prosecutrix, deposed that on 18.07.2014, Acquitted Page 8 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal prosecutrix had gone to her school as usual and did not return back and despite efforts, she could not be traced. She further deposed that she suspected accused Dharampal as he used to talk to the prosecutrix. She further deposed that in the night of 20.07.2014, prosecutrix came back home and she took her to PS on the same day. She further deposed about medical examination of prosecutrix, about recording of her statement Ex. PW5/A by the police and about recording her statement in the court.
During crossexamination by learned defence counsel, the witness stated that she had been married for the last 20 years and her three elder children were born in the village. She further stated that she did not get any horoscope/birth registration of her daughter prepared and also did not furnish any age proof of prosecutrix at the time of her admission in school. She further stated that her third daughter was also studying in the same school, in which prosecutrix was studying and they used to go to school together, but on the day of incident, prosecutrix alone had gone to the school and she came to know about missing of prosecutrix from her school only.
7. PW6 Sh. Mahender Singh, the father of the prosecutrix, deposed on the same lines as of his wife/PW5 about missing of prosecutrix and about lodging a Acquitted Page 9 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal complaint in this regard with the police. He proved the copy of the Missing report as Ex. PW6/A. During crossexamination by learned Legal aid counsel, the witness could not recollect as to who had gone for admission of prosecutrix in school and stated that he did not have any birth record of prosecutrix, except her school record.
Medical and Forensic evidence
8. PW4 Dr. Brajesh Narain Singh, CMO, proved the MLC of the accused as Ex. PW4/A by identifying the handwriting and signatures of Dr. Kaustuv Kiran and deposed regarding the same.
9. PW9 Dr. Mukesh Kumar, SR, (Forensic Medicine) proved the clinical examination/potency report of the accused by identifying the handwriting and signatures of Dr. Vijay Dhankar as Ex. PW8/H and deposed regarding the same.
10. PW10 Dr. Ritwika, SR Gynae, proved the MLC of the prosecutrix as Ex. PW3/A by identifying the handwriting and signatures of Dr. Vidya Rani, SR Gynae, who had examined the prosecutrix and deposed regarding the same. She further deposed that as per the MLC, there was no fresh external injury on the Acquitted Page 10 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal person of the prosecutrix and the hymen was not found intact.
11. PW11 Ms. Seema Nain, Senior Scientific Officer, FSL, Rohini, had examined the exhibits of the present case and proved her report as Ex. PW11/A and deposed regarding the same.
Evidence of Formal witness
12. PW1, HC Gulab Singh was lying posted as duty officer in PS Vijay Vihar at the relevant time and he proved copy of FIR as Ex. PW1/A and certificate u/s 65B of Evidence Act as Ex. PW1/B.
13. PW7 HC Rajesh in his evidence deposed that he was working as MHCM in Police Station Vijay Vihar at the relevant time and the sealed exhibits in the matter were deposited with him, which he had handed over to Ct. Wazir, for being deposited with FSL Rohini. He proved different entries made by him in register no. 19 and 21 as Ex. PW7/A to Ex. PW7/D.
14. PW12, Ms. Shefali Barnala Tandon, ld. M.M, in her evidence proved statement of the child victim as Ex. PW12/B, recorded by her under Section 164 Acquitted Page 11 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal Cr.P.C on 22.07.2014.
Evidence with regard to age of the prosecutrix
15. The prosecution has examined PW2 Smt. Anju Bajaj, TGT (Maths), Govt. Girls Sr. Secondary School, Sector01, Avantika, Rohini, Delhi, in order to prove that the prosecutrix was a minor at the time of incident. As per the school record, the date of birth of prosecutrix was 05.01.2000, which was entered into the record on the basis of an admission form and SLC issued by previous school. No birth certificate issued by Municipal Corporation or any other statutory authority was placed on record. As per this record, the age of the prosecutrix as on the date of incident was about 141/2 years.
Evidence of police officials of investigation.
16. PW13 SI Sonu Ram, is the initial investigating officer of the case and he deposed that on 18.07.2014, after registration of the FIR, the investigation of the present case was entrusted to him and he made efforts to trace the prosecutrix and the suspect and got the wireless message flashed, hue and cry notice published and also gave information to NCRB etc., but in vain. He further deposed that on 20.07.2014, prosecutrix and her mother came to the PS and thereafter, further Acquitted Page 12 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal investigation was transferred to PW8 W/ASI Krishna.
17. PW8 W/ASI Krishna, is the main/subsequent investigating officer of the case and she deposed that on 20.07.2014, on entrustment of the further investigation, PW13 SI Sonu Ram had handed over the case file and produced the prosecutrix before her and she recorded prosecutrix's statement Ex. PW5/A in the presence of her mother. She further deposed about medical examination of the prosecutrix and about seizure of sealed exhibits of the prosecutrix vide seizure memo Ex. PW8/B. She further deposed about arrest and personal search of the accused vide memos Ex. PW8/C and Ex. PW8/D, respectively. She further deposed about recording of the disclosure statement Ex. PW8/E of the accused, about preparation of pointing out memo Ex. PW8/F, about getting the accused medically examined vide MLC Ex. PW4/A, about seizure of accused's exhibits vide seizure memo Ex. PW8/G and about getting the potency test of the accused conducted vide report Ex.PW8/H. The witness further deposed about getting the statement of the prosecutrix recorded u/s 164 Cr.P.C vide her application Ex. PW8/J and about obtaining copy thereof vide application Ex. PW8/K. She further deposed about getting the exhibits of the present case deposited with FSL.
During crossexamination by learned legal aid counsel, the witness Acquitted Page 13 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal stated that she had made enquiries from the prosecutrix about the temple where accused got married with her and about the priest, who performed their marriage, but she could not tell her anything and showed her ignorance about the same.
Arguments advanced at Bar
18. I have heard arguments advanced at bar by learned Addl. PP for the State and Ms. Urmila Yadav, ld. Legal Aid counsel for the accused and perused the entire material on record.
19. The learned Addl. PP for the State has very vehemently argued that as on the date of incident, the prosecutrix was a child within the meaning of Section 2 (d) of the Act. It is further argued that from the evidence recorded in the matter of the prosecutrix and her parents, it has been proved that the accused had enticed the prosecutrix, got married and made physical relations with her, without her consent and as such, the prosecution has been able to prove the charged offences against the accused beyond reasonable doubt.
20. Per contra, the ld. Defence counsel has argued as under :
(a) that the prosecutrix was major as on the date of incident and Acquitted Page 14 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal was not a child and she had gone along with the accused of her own volition and sweet will ;
(b) that the prosecutrix is not a trustworthy witness as she has been taking wavering stands at different stages of the investigation and the trial ;
(c) that medical and forensic evidence does not support the prosecution case.
21. I would deal with the aforesaid arguments in the sequence noted hereinabove :
(a) Plea regarding the age of the prosecutrix
22. The prosecution has examined PW2 Smt. Anju Bajaj, teacher, Govt. Girls Sr. Secondary School, Sector1, Avantika, Rohini, Delhi. As per the school record, the date of birth of prosecutrix was 05.01.2000, which was entered into the record on the basis of an admission form and SLC submitted at the time of her admission. No birth certificate issued by Municipal Corporation or any other statutory authority was placed on record with the school. As per this record, the age of the prosecutrix as on the date of incident was about 14 1/2 years. Acquitted Page 15 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal
23. The mother of prosecutrix PW5, in her evidence stated that the prosecutrix was born in her native village and she did not get any horoscope/birth registration of prosecutrix prepared and that she did not furnish any age proof of prosecutrix at the time of her admission in school.
24. From the above facts, it is clear that the date of birth entry in the school record is not based upon any actual certificate issued by MCD or any other statutory authority. In the case of Birdi Mal Singhavi vs. Anand Purohit, 1988 Supp. SCC 601, it has been held that no evidentiary value can be given to Date of Birth entry in absence of material on which entry is made.
25. From the aforesaid material, it cannot be held with certainty that the prosecutrix was not a major and was a child on the date of incident i.e. 18.07.2014 and as such, the prosecution has failed to produce cogent evidence to prove the prosecutrix to be a child as on the date of incident.
(b) plea regarding the wavering stands and improbability of the versions of the prosecutrix
26. The first stand of the prosecutrix, which came on record is depicted in Ex. Acquitted Page 16 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal PW5/A, which is her statement recorded u/s 161 Cr.P.C by the IO PW8 on 20.07.2014. Here, she stated that she had been in a relationship with accused for the last about 5/6 months prior to 18.07.2014 and on the date of incident, accused expressed his desire to marry her and as she also liked him. She went along with accused from outside the school and thereafter, he took her to an unknown place by metro and thereafter, accused married her in a temple. She further stated that thereafter, the accused took her to a room at unknown place, where he made physical relations with her.
27. Her second version is found in the MLC Ex. PW3/A, wherein she gave history that she had gone with accused of her own volition, got married with him and had sexual relations with him.
28. Her third version is found in her statement Ex. PW12/B recorded by the learned M.M on 22.07.2014, wherein she stated that on 18.07.2014, at about 6.30 am, when she was waiting for her sister outside the school, accused came there and asked her to accompany him for marriage and despite her refusal, the accused took her forcibly by catching hold of her by her waist. Thereafter the accused took her at a place by metro, then to a temple, where the accused married her in the presence of one priest and then he took her to a room, where he forcibly made Acquitted Page 17 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal physical relations with her. At that time, some questions were also put to the prosecutrix and she replied as under : Q. Kaya aap Dharampal ko pahle se jante the ?
A. Haan. Hamare beech dosti thi.
Q. Jab wo apko jabardasti lekar ja raha tha, to apne kaya kiya ? A. Maine shor machaya tha, par subah ka waqt tha, isliye koi nahi tha.
29. Her fourth version is found in report Ex. PW8/L of Child Welfare Commission dated 22.07.2014. Before the Child Welfare Committee, she had stated that she was friendly with the accused, who had been residing in the same locality and both of them had eloped and got married on 18.07.2014 and she returned home on 20.07.2014.
30. Her fifth and the final version, has come to fore in her evidence recorded in the matter, wherein she stated that on 18.07.2014, the accused met her near her school and took her forcibly in an auto to Pitampura Metro Station and from where, he took her to an unknown place and then to a temple, where accused married her forcibly. She further stated that thereafter, the accused took her to a room and made physical relations with her against her wish. She further stated that in the morning, the accused had gone to work after locking her in that room and Acquitted Page 18 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal thereafter, she raised alarm, on which, public gathered there and took her out after breaking the lock and thereafter, she returned back to her home by a bus.
31. A conjoint reading of the aforesaid versions of the prosecutrix would bring out the obvious contradictions and improvements. At one place, she states that she herself had accompanied the accused as she used to like him and thereafter got married with him and made physical relations with her and at other place, she states that she went with her consent, got married and made physical relations, and yet another place, she states that accused took her by force from outside her school in metro and married her, at yet another place, she states that accused took her in an auto with four boys. It is also evident that at one place, she has stated that initially accused had taken her in an auto to Pitam Pura Metro Station, then to an unknown place through metro, then to a mandir, got married with her and thereafter took her to a room at unknown place and made physical relations with her. Initially, she did not tell anything about she having been taken in an auto, but in her later statement, she made substantial improvements in her different statements.
32. On going through the wavering versions of the prosecutrix reproduced hereinabove, it is evident that she had been a consenting party and she had gone along with the accused from outside of her school of her own volition as she had Acquitted Page 19 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal attained sufficient maturity at or around the time of the incident.
33. In a case involving somewhat similar facts, the Hon'ble High Court of Punjab and Haryana in case reported as "Raj Kishore @ Ramu vs. State of Haryana"
reported as 2011 (3) RCR (Crl.) Page 731, has been pleased to hold as under : "xxxxx
14. On going through the testimony of the prosecutrix as PW4, it appears that she had been a consenting party to the sexual intercourse. She deposed that the appellant, who was a tenant in a room of her house, used to have funny talks with her. He had told her that he would take her to Lucknow. On 4.4.1998 though the appellant committed rape upon her in a house of Hari Shanker accused in Sector16, Faridabad yet she had consented for the same. She did not disclose about the incident to her parents. She again met the appellant on 15.04.1998 in the market of Old Faridabad from where he took her to village of Hari Shanker accused. She was kept there for one month. The appellant then took her to his own village on 19.5.1998. In crossexamination, she Acquitted Page 20 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal stated that the appellant had first taken her to village Ansari in District Barabanki (Utter Pradesh) and thereafter to his own village Nimdipur. She has also deposed that she had accompanied the appellant first on a rickshaw and then in a bus and from Delhi, he had taken her to Lucknow. She admitted it as correct that there were heavy traffic on the way from school to bus stand, when she was taken by the appellant for boarding bus for Delhi. She also stated that so many persons were present at bus stand, Faridabad, in the bus and also at bus stand Delhi besides various places wherever, they passed through. She did not raise any noise or alarm on the way regarding her forcible enticing away by the appellant. The mode of transportation used by the prosecutrix while accompanying the appellant indicates that she had accompanied him willingly and not under any threat or pressure. Her explanation in this regard that the appellant had extended threats to her brother apparently appears to have been coined.
xxxxx"
Acquitted Page 21 of 25
SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal
34. Adverting back to the facts of the present case, in her statement Ex. PW5/A recorded by the police on 20.07.2014, she had categorically stated that she also used to like the accused and on the date of incident, the accused took her to a mandir and married her. If the ratio laid down in 'Raj Kishore's case (supra)', is applied to the facts and circumstances of the present case, then it would be evident that the prosecutrix was taken in an auto and then by the metro, but not at a single place, she raised alarm or made the general public known what the accused had done to her. Even at the above mentioned places, she was admittedly not incommunicado and she might have the access to talk to people, but she having failed to do so indicates that she had happily gone along and stayed with the accused.
35. `In this regard, it would be 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 Acquitted Page 22 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal her father's protection knowing and having capacity to know the full import of 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."
36. It has also been held 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 by the Hon'ble Delhi High Court of Delhi as under : "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. ...."
Therefore, neither her kidnapping by the accused for the purpose of marriage nor forcible intercourse with her by the accused has been proved on record in the matter.
Acquitted Page 23 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal
37. Further, learned legal aid counsel has drawn my attention to the contractions in the testimony of the witnesses as in the FIR, father of the prosecutrix had stated that the prosecutrix had gone to the school with her younger sister, but the prosecutrix herself stated in her evidence that she alone had gone to the school. Further, the prosecutrix in her statements recorded u/s 161 Cr.P.C and u/s 164 Cr.P.C, did not tell about the four boys, who were sitting in the auto, when the accused had taken her to Metro Station, but for the first time, in the court, she stated this fact.
Plea of Medical evidence and Forensic evidence not supporting the prosecution case
38. A perusal of the MLC of prosecutrix, which is Ex. PW3/A reveals that she did not have any kind of external or internal injuries on her person. She further did not exhibit any sign of trauma. This fact coupled with the FSL report Ex. PW11/A makes it apparent that no force was used by the accused upon the prosecutrix as nothing incriminating came against the accused in the FSL result Ex. PW11/A.
39. In view of the above discussion and the material on record, the prosecution Acquitted Page 24 of 25 SC No. 198/14 : FIR No. 781/14 : PS Vijay Vihar : State V/s Dharam Pal has miserably failed in proving the charges against the accused. The accused accordingly, stands acquitted of the charges. Accused is in J.C. He be released forthwith, if not required to be detained in any other case or proceedings.
40. File be consigned to Record Room.
Announced in the open Court (Vinod Yadav)
on 07.09.2015 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
Acquitted Page 25 of 25