Delhi District Court
State vs Suresh Kumar on 28 February, 2015
IN THE COURT OF SMT. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI.
Unique Case I.D. No.02402R0001131989
SC No. 06/15 Date of assignment : 06.01.2015
FIR No.261/88 Date on which arguments
PS. Shakarpur were heard : 27.02.2015
U/S.363/366 IPC Date of judgment : 28.02.2015
State Versus Suresh Kumar
S/o Ram Niwas
R/o H.No.C-38, Ganesh Nagar
Complex, Pandav Nagar, Delhi.
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet is that on 23.11.1988, father of the prosecutrix (complainant) came to police station Shakarpur and lodged a missing report about his daughter (prosecutrix). He informed that on 22.11.1988 at about 07.15 am, his daughter aged about 14 years went to her school but she did not come back from school. She could not be traced despite best efforts. It was also stated that one Sunil had informed the wife of the complainant that on 22.11.1988 at about 11.30 p.m., he had seen the SC No.06/15 State vs. Suresh page 1 of 21 prosecutrix with the present accused Suresh Kumar at Patparganj railway bridge. Complainant expressed doubt that the accused had kidnapped his daughter.
2. On 26.11.1988, the prosecutrix was recovered at Rajghat while she was in company of the accused. The accused was taken in custody. The bone age test of the prosecutrix was got done. Statement of the prosecutrix u/s 164 Cr.P.C was also got recorded on 06.12.1988. School records of the prosecutrix regarding her age were got collected.
3. In her statement recorded u/s 164 Cr.P.C, the prosecutrix stated that the accused was residing near her house. On 21.11.1988 she told the accused that they should go out on 22.11.1988 but the accused refused and advised her that she should complete her studies and then they will go. The prosecutrix kept insisting. In the morning of 22.11.1988 she alongwith the accused went to Rajghat and at about 12.00 noon, accused asked the prosecutrix to go back to her home but she did not accept his advice. Thereafter they remained there till evening and the prosecutrix told the accused that she did not want to go back home. At that stage, the accused threatened that he will eat some tablets if she did not go back but she did not SC No.06/15 State vs. Suresh page 2 of 21 allow him to do so. In night they stayed at a Dharamshala. Next day they went to a park and the accused again advised the prosecutrix to go back to her home but she again refused and started weeping. Thereafter the second night they again stayed in the said Dharamshala. Third day they again went to Rajghat park. Accused again tried to make the prosecutrix go back to her home and said that she should not feel afraid and he will talk to her father about their marriage but the prosecutrix did not agree and they again stayed at that Dharamshala on that night. Thereafter police apprehended them at Dharmshala. She also stated that she did not want to go back to her home.
4. After completion of investigation, the chargesheet dated 27.12.1988 u/s 363/366 IPC was filed against the accused.
5. The record shows that taking note of the statement of the prosecutrix recorded u/s 164 Cr. P.C., the sessions court admitted the accused to bail on 02.12.1988.
6. Since the major offence in this case was triable by the Court of Sessions, vide order dated 21.03.1990, learned M.M, committed this case to the Court of Sessions.
SC No.06/15 State vs. Suresh page 3 of 21
7. Vide order dated 16.08.1990, a charge u/s 363/366 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
8. From the record, it is seen that after the depositions of eleven witnesses got recorded, accused stopped appearing in the court and was declared a Proclaimed Offender vide order dated 15.05.1996. The accused remained an absconder for more than 18 years. He was ultimately rearrested on 06.01.2015 and brought before the court and the case was assigned to this court for further trial.
9. In support of its case, prosecution examined thirteen witnesses i.e. prosecutrix as PW1, mother of the prosecutrix as PW2, father of the prosecutrix as PW3, Dr. S.C. Bhalla, Chief Medical Officer, GTB Hospital as PW4, ASI Leela Ram as PW5, Kiran Kirpal, Sub Registrar ( Birth and Registration), MCD NCT, Shahdara, Delhi as PW6, Sunil as PW7, Dr. Tek Singh Vimal as PW8, Jaideep Singh, UDC Government Girls Secondary School, Shakarpur as PW9, Sh. Raghbir Singh, learned Metropolitan Magistrate as PW10, R.S. Sharma, Record Clerk, JPN Hospital as PW11, Inspector S.B. Yadav as PW12 and Smt. Suchitra, PGT Commerce, Government Girls Senior Secondary School No. SC No.06/15 State vs. Suresh page 4 of 21 2, Madhuban Road, Shakarpur, Delhi as PW13.
10. As seen from the above, in her statement u/s 164 Cr.P.C, the prosecutrix has not made any incriminating allegation against the accused. Similarly, in her statement to the police the prosecurix did not make any allegation against the accused. However, in her deposition recorded on 07.11.1991 in the court, the prosecutrix (PW1) deposed that she knew the accused as he was a resident of their locality. She was studying in 10th class in Government Girls Secondary School, Shakarpur. When she used to go to her school, accused used to follow her on the way and also used to pass remarks. About three years back (from the date of recording of her deposition in the court on 07.11.1991), at about 7.00 am she was going to her school. Accused met her on the main road opposite her school. Accused asked her to accompany him but she refused. Accused thereafter threatened her that he would kidnap her younger brother but even then she refused to accompany him. Accused forcibly took her (prosecutrix) in a TSR to a room which looked like a shop but she did not know the address of that house. Accused closed the door of the room. Prosecutrix further deposed that accused removed her clothes by force. Accused then removed his own clothes and committed rape on the prosecutrix SC No.06/15 State vs. Suresh page 5 of 21 against her will and consent. Accused also threatened to kill her before committing rape. Accused further threatened the prosecutrix that in case he is arrested, prosecutrix should not speak against him anywhere. Prosecutrix further deposed that they stayed there for one night and in the same night police apprehended both of them. Prosecutrix further deposed that police brought them to police station Shakarpur where her statement was got recorded. In the police station, accused threatened the prosecutrix not to disclose the matter to anybody otherwise he would finish her parents. Prosecutrix further deposed that at that time she was wearing an underwear and same was also removed by the accused. After commission of rape she put on same underwear. Underwear was seized by the police vide seizure memo Ex.PW1/A. She also stated her statement Ex.PW1/B was recorded by learned MM. Prosecutrix deposed that she did not state the fact of rape in her statement Ex.PW1/B against the accused.
11. PW2 mother of the prosecutrix deposed that when the incident took place, the prosecutrix was about 14 years of age and she was studying in 10th class in Government Girls Secondary School, Shakarpur. She further deposed that two or three years back, the SC No.06/15 State vs. Suresh page 6 of 21 prosecutrix left the house at about 6.00 am for her school but did not come back. This witness searched for her daughter and one Sunil informed her that he had seen the prosecutrix with the accused at Patparganj railway bridge the previous night. This witness stated that she informed this fact to her husband who lodged the complaint.
12. This witness was also cross examined on behalf of accused. During her cross examination, she denied that the prosecutrix was more than 18 years of age at the time of incident. She also denied that the accused did not kidnap the prosecutrix.
13. PW3 father of the prosecutrix also deposed on the same lines as PW2. He deposed that in the year 1988 his daughter aged about 14-15 years was studying in 10th class in Government Girls Senior Secondary, School, Shakarpur, Delhi. He deposed that his daughter left the house at about 7/7.15 am on 22.11.1988 but she did not return back. On 23.11.1988 his wife was searching their daughter then one Sunil informed her that he had seen the prosecutrix with accused on the last night. Thereafter this witness lodged the missing report. He admitted his signature on FIR Ex.PW5/A. This witness was cross examined on behalf of accused.
SC No.06/15 State vs. Suresh page 7 of 21
14. PW4 Dr. S.C. Bhalla deposed that on 28.11.1988 he examined X-ray plates of the prosecutrix. On examination of her X-ray plates, he came to the conclusion that bony age of the prosecutrix was above 18 years and less than 20 years. He proved his report as Ex. PW4/A.
15. PW5 ASI Leena deposed that on 23.11.1988 father of the prosecutrix came to the police station and lodged a report and he got registered the FIR No.261/88 Ex. PW5/A.
16. PW6 Kiran Kirpal Sub Registrar from Birth and Registration department had brought the register regarding birth and deposed that according to the register, father of the prosecutrix got registered the birth of his female child as 16.01.1974. He proved the photocopy of birth registration as Ex. PW6/A.
17. PW7 Sunil deposed that he knew the accused but he did not know the prosecutrix. He deposed that he had never seen the prosecutrix sitting with the accused at Patparganj railway bridge nor he told this fact to the mother of the prosecutrix. As this witness did not support the case of the prosecution, he was cross examined by the SC No.06/15 State vs. Suresh page 8 of 21 learned Addl. PP for the State. Even in his cross examination, he did not support the case of the prosecution.
18. PW8 Dr. Tek Singh Vimal deposed that he medically examined the accused and proved his MLC as Ex.PW8/A.
19. PW9 Jagdeep Singh, UDC Government Girls Secondary School, Shakarpur deposed that according to the school record, prosecutrix was got admitted in their school in 6th class against the school leaving certificate issued by Municipal Corporation School at Patparganj. The date of birth of the prosecutrix was mentioned in that certificate as 16.01.1974 and she was got admitted in the school by her father. This witness proved the school leaving certificate of the prosecutrix as Ex. PW9/A.
20. PW10 Sh. Raghubir Singh, the then learned Metropolitan Magistrate recorded the statement of the prosecutrix u/s 164 Cr.P.C and proved the same as Ex.PW1/B.
21. PW11 R.S. Sharma, Record Clerk from JPN hospital proved the MLC of the prosecutrix as Ex.PW11/A. SC No.06/15 State vs. Suresh page 9 of 21 He further deposed that Ex. PW11/A was issued by Dr. Shail who has left the hospital and her present whereabouts are not known.
22. PW13 Smt. Suchitra, PGT Commerce, Government Girls Senior Secondary School No.2, Madhuban Road, Shakarpur, Delhi deposed that she can identify the signature of Mrs. M.Sangal who was working as Principal in their school at the relevant time and now she is retired. This witness further deposed that she has seen her signing and writing during the course of their official duties. This witness has proved the certificate Ex. PW13/A regarding date of birth of prosecutrix issued by the then Principal Mrs.M. Sangal. This witness stated that she has also brought the certificate Ex.PW13/B issued by the present vice Principal Mrs. Daya Prakash showing the date of birth of prosecutrix as 16.01.1974.
23. PW12 Inspector S.B. Yadav deposed that on 23.11.1988 he was posted as SI at police station Shakarpur. After registration of FIR, the investigation of the present case was marked to him. He made efforts to trace out the prosecutrix and accused. On 23.11.1988 he recorded the statement of public witness Sunil. He further deposed that on 26.11.1988, he alongwith Ct. Bhagat and SC No.06/15 State vs. Suresh page 10 of 21 complainant while searching the accused and the prosecutrix reached at Rajghat, Delhi where the prosecutrix and the accused were present. Both of them were identified by the complainant and were apprehended. After interrogation, accused was arrested and he prepared his personal search memo Ex.PW12/A. He prepared the recovery memo Ex. PW12/B of the prosecutrix. This witness further deposed that he had taken into possession the underwear of the accused vide seizure memo Ex.PW12/C. He had also taken into possession the underwear of the prosecutrix vide seizure memo Ex. PW1/A. Thereafter the accused was taken to SDN Hospital where he was got medically examined vide MLC Ex.PW8/A. The accused and prosecutrix both were produced before the court. Accused was sent to judicial custody. The case property was deposited in the malkhana. On 28.11.1988, the prosecutrix was got medically examined vide MLC Ex. PW1/A. On the same day, bony X-ray of the prosecutrix was got done for determination of her age. The prosecutrix was sent to Nari Niketan and on 06.12.1988 the prosecutrix was produced before the learned Metropolitan Magistrate and her statement u/s 164 Cr.P.C was got recorded. The prosecutrix was given on superdari to her father vide superdarinama Ex.PW12/H. On 08.12.1988 IO collected the date of birth certificate Ex. PW12/G of the prosecutrix from Government SC No.06/15 State vs. Suresh page 11 of 21 Girls Secondary School, Shakarpur. He also collected the photocopy of the date of birth certificate Ex. PW6/A of the prosecutrix from her father. He also proved the underwear of the accused as P1 and underwear of the prosecutrix as P2. After completion of investigation, he prepared the challan against the accused.
24. After the prosecution evidence was closed, statement of accused u/s 313 Cr.P.C was got recorded. In his statement, accused admitted that he knew the prosecutrix being his neighbour. Accused stated that he is innocent and he has been falsely implicated in this case. The accused did not prefer to lead any defence evidence.
25. On 02.02.2015, IO Inspector S.B. Yadav had moved an application for framing of an additional charge u/s 376 IPC against the accused. The said application was dismissed by this court on 21.02.2015 by a speaking order.
26. I have heard arguments addressed by learned Additional Public Prosecutor for the State and Sh. U.A. Khan, Advocate for the accused and perused the record.
27. The accused is facing trial for the commission of offences punishable u/s 363/366 IPC.
SC No.06/15 State vs. Suresh page 12 of 21
28. Section 363 IPC provides punishment for offence of 'kidnapping of minor' as defined under section 361 IPC. Section 361 IPC stipulates that whoever takes or entices any minor under (sixteen) years of age if a male, or under (eighteen) years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of the such guardian, is said to kidnap such minor or person from lawful guardianship. Thus, in order to establish that a person has committed the offence of kidnapping, the prosecution is required to show:
(a) victim was a minor at the relevant time;
(b) taking or enticing such minor out of the lawful guardianship;
(c) such taking was without the consent of the guardian.
29. Section 366 IPC stipulates punishment for aggravated form of offence of kidnapping. Section 366 IPC stipulates that whoever kidnaps or abducts any woman with intent that she 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 or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be SC No.06/15 State vs. Suresh page 13 of 21 punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
30. In order to establish the age of the prosecutrix, the prosecution has summoned the school record of the prosecutrix from her school i.e Government Girls Secondary School Shakarpur, Delhi where the prosecutrix was studying in 10th class at the relevant time. Witnesses from the school appeared as PW9 and PW13. As per statement of PW9, the prosecutrix was admitted in Government Girls Senior Secondary School, Shakarpur in 6th class against the school leaving certificate issued by Municipal Corporation, School, Shakarpur. PW13 has also deposed that the prosecutrix was student of 10th class in the year 1988-89 and as per school record, her date of birth is 16.01.1974. Thus from the school record, it would appear that the age of prosecutrix was above 14 years at the relevant time.
31. It may be noted here that during investigation the prosecutrix was subjected to bony X-ray test. As per her bony X-ray report dated 28.11.1988 (Ex.PW4/A), the prosecutrix was above 18 years of age but below 20 years at the time of incident.
SC No.06/15 State vs. Suresh page 14 of 21
32. In case of State of NCT of Delhi vs. Shiva & Ors. (Crl. L.P. No. 172/2008 decided on 16.03.2012 by a Division Bench of the Hon'ble Delhi High Court), the doctor on the basis of ossification test had opined that the age of the prosecutrix in that case was between 14 to 16 years. In the circumstances taking note of the judgment of Hon'ble Supreme Court in Jaya Mala v. Home Secretary, Govt. of J & K [(1982)SCC 1296], the Hon'ble Delhi High Court held that there can be two years margin either way in radiological examination and thus it cannot be concluded with certainty that the prosecutrix was 16 years of age on the day of incident. In the said judgment it was also observed that if the two opinions are possible, one favouring the accused need be taken.
33. The burden to show the age of the prosecutrix was on the prosecution. The prosecution has not proved on record the documents of the school first attended by the prosecutrix. PW9 has deposed that in the school namely Government Girls Senior Secondary School, Shakarpur the prosecutrix was admitted in 6th class on the basis of school leaving certificate Ex.PW9/A. In these circumstances, I am of the opinion that the prosecution has not been able to establish beyond reasonable doubt that the prosecutrix SC No.06/15 State vs. Suresh page 15 of 21 was below 18 years of age at on the date of incident.
34. The accused was 19-20 years of age at that time as is apparent from the conviction slip filed by the prosecution.
35. The prosecutrix during her examination in chief has alleged that accused threatened her to accompany him and took her in a TSR to a room where he kept her and committed rape on her. This is contrary to the statements recorded u/s 164 Cr.P.C and to the police officials.
36. During her cross examination, the prosecutrix was extensively confronted with her previous statements made to the police and the learned Metropolitan Magistrate u/s 164 Cr.P.C. The prosecutrix admitted that she had stated that it was she who had asked the accused to take her for a sight seeing tour of Delhi but the accused had refused and told her that first she should complete her studies. The prosecutrix also admitted that she had stated to the police that she insisted the accused to take her for a sight seeing tour and the accused repeatedly advised her to go back to her home. She also admitted that she had stated that when she refused to go back, accused attempted to consume some tablets but she snatched SC No.06/15 State vs. Suresh page 16 of 21 those tablets. She also admitted that she did not make any allegation of commission of rape against the accused before the police. The prosecutrix also admitted that in her statement u/s 164 Cr.P.C she stated that she requested the accused to accompany her for sight seeing but the accused refused to accompany her. She also stated that the accused advised her to complete her education and then they would go for sight seeing. She also admitted that she had stated before the learned Metropolitan Magistrate that in the morning of 22.11.1988 she alongwith accused went to Rajghat and about 12 noon, accused asked her to return to her home but she refused. Prosecutrix denied the suggestion that she was tutored by her parents.
37. Perusal of evidence of the prosecutrix would disclose that earlier the statements of the prosecutrix were that it was she who had left her home on her own and made the accused accompany her. However in her deposition in the court she has stated to the contrary. It is not in dispute that the prosecutrix did not make any hue and cry at any stage and she was unable to identify the place where the accused had taken her.
38. The prosecutrix has tried to explain the contradictions by stating that she made the statements to SC No.06/15 State vs. Suresh page 17 of 21 the police and the learned Metropolitan Magistrate under pressure of the accused.
39. I am of the opinion that the contradictory statements on the material aspects in the statement of the prosecutrix at the time of investigation and at the time of deposition in the court make her deposition highly suspect. Explanation by the prosecutrix that she was threatened by the accused does not inspire confidence. The statement of alleged threat has been made by the prosecutrix for the first time during her deposition in the court after almost three years of making the earlier statements to police and the learned Metropolitan Magistrate. There is no explanation as to why the prosecutrix did not inform about the alleged threat to police officials after she felt that the threat no longer persisted and waited for her deposition in the court. The accused was about 18-20 years of age at the relevant time. At the time of her making the earlier statements, the accused was in custody. It was not disclosed as to when the alleged threat was received by the prosecutrix. To my mind, the statement of the prosecutrix in the court is only indicative of the fact that by the time her deposition got recorded (after about three years of the incident), she had no attachment left for the accused. In any event, the deposition of the prosecutrix to SC No.06/15 State vs. Suresh page 18 of 21 the effect that she accompanied the accused on account of his threat cannot be taken as correct on its face value in view of above contradictions. A witness who has made very substantially contradictory statements at different times and stages cannot be considered a very reliable witness. It is not the case of prosecution that the prosecutrix left the lawful guardianship of her father due to inducement of accused. The statements of the mother and father of the prosecutrix are of no help to the case of the prosecution as they have no personal knowledge about the incident.
40. In the circumstances, I am of the opinion that the prosecution has failed to established that the accused had threatened the prosecutrix or had taken any positive step to make the prosecutrix to leave her home and to accompany him.
41. In the judgment reported as Lawrence Kannandas V. State of Maharashtra [983 Crl. L.J. 1819], Hon'ble Bombay High Court after referring to the judgment of Hon'ble Supreme Court in the case of S. Varadarajan V. State of Madras ( AIR 1965 SC 942) held as follows:
''In order to come within the mis-chief of that section the accused must have either taken away the minor girl or must have enticed the SC No.06/15 State vs. Suresh page 19 of 21 minor girl out of the keeping of her lawful guardian without the consent of such guardian. The two expressions ''taking'' and ''enticing'' evidently have two different connotations. But both the expressions call for some positive step having taken by the accused to remove the girl from the lawful guardians. Neither of the sections would have any application if the girl has, of her own accord, come out of the custody or come out of the keeping of her lawful guardians and if it is thereafter that the accused had gone with her to some place.''
42. Similarly, in Madan Lal v. Dr. Jaswant Batra [1994 Crl. L.J 1767], the Hon'ble Delhi High Court observed as follows:
''The most important ingredient of this section is taking or enticing away a minor or a person of unsound mind from keeping of the lawful guardian. Before a person is said to kidnap a minor, there must be some proof of his having done something which led to removal of the minor from the keeping of his/ her guardian.''
43. In view of above discussion, it is held that the prosecution has failed to establish that the prosecutrix left the lawful guardianship of her father on the threat of the accused. In the circumstances, the mandatory requirements for proof for offence punishable u/s 363 IPC are not fulfilled and thus the charge u/s 363 IPC must fail. As a consequence, section 366 IPC which is an aggravated form of section 363 IPC must also fail. Hence, the accused SC No.06/15 State vs. Suresh page 20 of 21 is acquitted of the charge under sections 363/366 IPC.
44. The accused is in judicial custody. He be released if not required in any other case.
45. File be consigned to record room after necessary compliance.
Announced in the open court on 28.02.2015 (SARITA BIRBAL) Additional Sessions Judge, (SFTC), East, Karkardooma Courts, Delhi.
SC No.06/15 State vs. Suresh page 21 of 21