Delhi District Court
In Re vs . on 9 October, 2013
1
IN THE COURT OF SH. DHARMESH SHARMA,
ASJ01, NEW DELHI DISTRICT, PATIALA HOUSE
COURTS,NEW DELHI.
ID No. 02403R0048902013
Date of filing of charge sheet : 20.04.2013
Date of framing of charge : 22.04.2013
Date of final arguments : 09.10.2013
Date of judgment : 09.10.2013
SC No. 56/13
FIR NO. 276/12
PS Vasant Kunj (North)
U/s 363/366/376 IPC & 9 of POCSO Act
In re:
STATE
Vs.
SHIVA NAND RAI
S/O SH. ANTARYAMI RAI
R/O VILLAGE SHERPUR KALAN
PS BHANWAR KOL,
DISTRICT GAJIPUR (UP)
APPEARANCES
Present : Mr. Mukul Kumar, Ld. substitute APP for the State as
regular Ld. APP Mr. Salim Khan is on leave.
Mr. Ehraz Zafar, Ld. counsel for the accused from Legal Aid.
09.10.2013
JUDGMENT
1. This again is an elopement case where the girl child and the accused decided to run way from their families, got married and cohabited as husband and wife. However, since the girl was found to be less than 18 years of age, accused Shiva Nand Rai son of State v. Shiva Nand Rai Page 1 of 10 2 Sh. Antaryami Rai has been arraigned for trial on the charge that he kidnapped the girl child aged about 14 years from the lawful custody of her parents/guardian with the intention to marry her and thereafter committed aggravated sexual assault or rape upon her. FACTS
2. The case of the prosecution is that on 01.10.2012 Prem Nath Singh (PW2) lodged a report with the police Ex. PW2/A, the gist of which is that his daughter aged about 14 years was missing since the evening after 7 PM and he suspected accused Shiva Nand Rai to have enticed and taken away his daughter somewhere. The FIR on the basis of said complaint was however recorded on 02.10.2012 at 1930 hours. During the interregnum the Police flashed the information regarding missing girl via WT Message, NCRB forum, Missing Person Forum besides Zip Net as per the standard procedure and on receiving information about the whereabouts of the accused and the girl child, HC Shailender alongwith Ct. Raghuvir were sent to the native place of accused in P Block, Pratap Vihar, Vijay Nagar, Ghaziabad and the girl child was recovered from the custody of the accused on 25.01.2013.
3. Needless to state that both were brought to Delhi and the girl child was produced for her medical examination and her statement u/s 164 Cr.P.C. was also recorded. Accused was also medically examined. During investigation it was found that the date State v. Shiva Nand Rai Page 2 of 10 3 of birth of the girl child is 02.01.1999 and thus she was a minor child. After completion of investigation the charge sheet was filed. CHARGE
4. Accused was charged for committing offences u/s 363/366 IPC. Accused was further charged for committing offence u/s 376 IPC r/w section 9 of POCSO Act. Accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5. Prosecution in order to prove its case examined PW1 the girl child and her father PW2 Prem Nath Singh. PW3 was Dr. Savita Verma who testified about the OPD card Ex. PW3/A prepared by Dr. Anuradha Tamarai whereby the girl child was medically examined. She identified the handwriting and signatures of Dr. Anuradha Tamarai who could not be produced since she had been sent for duties in relation to natural disaster in Uttrakhand . Perusal of the MLC brings out that the girl child had refused her internal examination. PW 4 was Dr. Piyush Sharma who testified that he medically examined the accused and gave opinion that accused was sexually potent on the MLC Ex. PW4/A.
6. Having regard to the evidence of the prosecutrix, her father PW2 and PW3 I found that no useful purpose would have been served by examining the remaining formal witnesses viz. the police witnesses or even the Ld.MM who recorded statement u/s 164 State v. Shiva Nand Rai Page 3 of 10 4 Cr.P.C. Although request was made by Ld. APP for the State to allow the State to examine the remaining witnesses, prosecution evidence was closed as to my mind such exercise would have been a futile one involving wastage of time and precious resources. The statement of accused u/s 313 Cr.P.C. was also dispensed with as to my mind there is no incriminating evidence against the accused either. ARGUMENTS
7. I have heard Ld. Addl. PP for the State and Ld. counsel for the accused. I have also perused the relevant record/ documentary evidence on the record.
APPRECIATION OF EVIDENCE
8. At the outset, as regards the age of the girl child is concerned, although PW1 stated that it might be correct that her date of birth recorded in the school record was 02.01.1999. In other words, she was uncertain about her exact date of birth. However at the time of her medical examination, her parents informed the Doctor, as recorded in the MLC Ex.PW1/B, that she was 14 years of age but at the time of recording of her statement u/s164 Cr.P.C. Ex.PW1/A when she was not with the parents she stated that she was 19 years of age. It is further matter of record that at the time of performing her marriage with the accused, she claimed herself to be 19 years of age which certificate is Ex.PW1/C and marriage was also got registered on her own affidavit that she was more than 19years of age. The matter was further confounded State v. Shiva Nand Rai Page 4 of 10 5 by PW2 who rather stated that the date of birth of his daughter i.e. prosecutrix is 03.02.1997. Even when she was examined by the Members of Child Welfare Committee on 28.01.2013 she stated that she was 19 years of age as per report Mark C1.
9. The sum result is that in the absence of any ossification test of the prosecutrix couple with doubts on her exact date of birth, the case of the prosecution that girl child was less than eighteen years of age is on slippery grounds. Anyhow, assuming that the date of birth of PW1 as per her father is 03.02.1997, she was more than 16 years of age during the relevant time. PW1 in her testimony categorically stated that she was having friendly relationship with accused Shiva Nand Rai; that accused was a very mature man and has been helping her family; that even her mother initially promised that she would be married to the accused but later on she backed out due to caste consideration; that they fell in love; decided to elope and got married at Shiv Mandir, Chiranjeev Vihar, Ghaziabad on 07.12. 2012 and started cohabiting as husband and wife. In her testimony she reiterated her love for the accused. Incidently, the girl belongs to Thakur Community while accused belongs to Yadav caste and PW2 testified that their marriage would not be acceptable to his community.
10. It is pertinent to mention here that PW1 prosecutrix in her statement u/s 164 Cr.P.C. did not implicate the accused in any State v. Shiva Nand Rai Page 5 of 10 6 act of kidnapping, abduction or sexually assault or forceful penetrative sexual assault. She rather stated that she was annoyed with her mother who had scolded her ever now and then and she went away with the accused on her own and got married.
11. Now, PW1 categorically stated that after marriage accused had sexual intercourse with her consent. There is nothing in the testimony of Pw 1 that she was subjected to any kind of fear,coercion, undue influence or threat by the accused. It is pertinent to mention that the girl refused her internal medical examination and rather informed the doctor about history of three abortions in the past but unrelated to the accused. At the cost of repetition their marriage certificate is Ex. PW1/C that has been given by the Pandit/pujari who had performed the ceremonial rites and the marriage was got registered with the Registrar, Hindu Marriage, Ghaziabad as well.
12. The sum result of the above discussion is that the accused did not kidnap her as she willingly accompanied him. In the case of Varadarajan v. State of Madras, 1965 (2) CRI. L. J. 33 (Vol. 71, C. N. 7), explaining the law on kidnapping in somewhat similar contextual circumstances, it was observed:
The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances no inference can be drawn that the accused is guilty of taking away the girl State v. Shiva Nand Rai Page 6 of 10 7 out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. (Para 7) There is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it cannot be laid down that in no conceivable circumstances can the two be regarded as meaning the same tiling for the purposes of S. 361. Where the minor leaves 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. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him. In the formation of the intention of the minor to leave the house of the guardian. (Para 8)
13. The said observation are squarely applicable in the instant case. Similarly, the case under section 366 of I.P.C is also not made out since there is no evidence that the girl child was compelled to marry with someone against her will or forced or seduced to illicit sexual intercourse. I may hasten to add that at the time she decided to elope with the accused on 01.10.2012, if the accused had consensual sexual intercourse with her believing that she was above 18 years, accused can not be held guilty of committing rape either by virtue of clause sixthly to Section 375 of I.P.C. Moreover, the culpability under the amended Section 375 (sixthly) effected w.e.f. 03.02.2013 cannot be applied upon him.
14. Now Section 3 of POCSO Act is quite a stringent and exhaustive provision that provides as under:
State v. Shiva Nand Rai Page 7 of 10 8
3. Penetrative sexual assault A person is said to commit "penetrative sexual assault" if
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
15. The word "assault" is not defined under the POCSO Act but it is defined u/s 351 of IPC to mean "any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person"Offence of "criminal force" is defined u/s 350 of IPC to mean "intentional use of force to any person, without that person's consent, in order to committing of any offence, or intending by the use of such force to cause or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance".
16. It may be stated that while interpreting any provision of a Statute we must have regard to the fact that every part of the statute is meaningful and effective, which is expressed in the legal maxim ut res magis valeat quam pereat. Further, plain words should be read having due regard to their normal import, statutory setting, State v. Shiva Nand Rai Page 8 of 10 9 professional object and insistence on standards. The genesis of the present enactment lies in India being signatory to the Convention on the Rights of the Child adopted by the General Assembly of the United Nations dated 11th December, 1992 whereby it was resolved that the State Parties to the Convention are required to undertake all appropriate national, bilateral and multilateral measures to prevent
a) the inducement or coercion of a child to engage in any unlawful sexual activity;
b) the exploitative use of children in prostitution or other unlawful sexual practices;
c) the exploitative use of children in pornographic performances and materials;
17. Further, a meaning perusal of the objects and reasons of the POCSO Act would show that the present enactment aims to curb such acts of sexual assault or harassment that are likely to bring an irreparable impact on the mental, physical and psychological health , freedom and dignity of a child. Thus, bare perusal of the said provision provides that sexual intercourse with a child is punishable u/s 4 of the POCSO Act provided it is in the nature of an 'assault'. At the cost of repetition, the girl child PW1 in her evidence categorically testified that accused did not subject her to any kind of cruelty, fear, coercion, undue influence nor he intimidated her in any manner and it is nobody's case that she was exploited in any manner.
State v. Shiva Nand Rai Page 9 of 10 10
18. It must be stated that in case of critical age between 16 years to 18 years, Section 4 of the POCSO Act has to be interpreted distinguishing between an act which is per se criminal for being in the nature of coercion, fear, inducement or exploitation committed upon a child from an act which would otherwise criminalize a person for having done something which is without any malice , ill will or ulterior motives. Therefore, accused can not be held guilty of committing aggravated penetrated assault.
FINAL ORDER
19. In the said view of the matter, in view of the testimony of PW1 prosecutrix, the prosecution fails to prove its case against the accused. The accused Shiva Nand Rai is acquitted who is on court bail. His personal bond is cancelled surety is discharged.
20. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (DHARMESH SHARMA)
TODAY i.e 09.10.2013 ASJ01/PHC/NEW DELHI
09.10.2013
State v. Shiva Nand Rai Page 10 of 10
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SC No. 56/13
STATE Vs. SHIVA NAND RAI
09.10.2013
Present : Mr. Mukul Kumar, Ld. substitute APP for the State as
regular Ld. APP Mr. Salim Khan is on leave.
Mr. Ehraz Zafar, Ld. counsel for the accused from Legal Aid. Vide separate judgment of even date, in view of the testimony of PW1 prosecutrix, the prosecution fails to prove its case against the accused. The accused Shiva Nand Rai is acquitted who is on court bail. His personal bond is cancelled surety is discharged.
File be consigned to Record Room.
(DHARMESH SHARMA) ASJ01/PHC/NEW DELHI 09.10.2013 State v. Shiva Nand Rai Page 11 of 10