Delhi District Court
Sc No. 35/13 State vs Subhash Etc. Page No. 1 Of 21 on 26 June, 2014
IN THE COURT OF ADDITIONAL SESSIONS JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET
COURTS: NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
CASE ID NO. 02406R0074812011
SESSIONS CASE NO. 35/13
FIR NO. 248/10
POLICE STATION : JAITPUR
UNDER SECTION : 363/366/376/120B IPC
STATE
VERSUS
1. SUBHASH
S/O SH. LALA RAM,
R/O C229, HARSH VIHAR, HARI NAGAR,
PARTIII, JAITPUR, MEETHAPUR, NEW DELHI.
ALSO AT VILLAGE UJARPURA, POST SAROTH,
TEHSIL ALIGANJ, PS JAITHRA, DISTRICT ETA, UP.
2. BABY
W/o S/O MANBIR,
R/O VILLAGE UZARPUR ( GULSANABAD),
PS JAITHRA, DISTRICT ETA, UP.
( ACCUSED BABY WAS DECLARED PROCLAIMED OFFENDER
VIDE ORDER DATED 15.02.2012 )
DATE OF INSTITUTION : 09.03.2011.
DATE OF RESERVING ORDER : 20.05.2014.
DATE OF DECISION : 26.06.2014.
SC No. 35/13 State Vs Subhash etc. Page No. 1 of 21
J U D G M E N T
Case of Prosecution:
1. Brief facts of the case are that on 08.12.2010 Sh. Raj Kumar came to police station and gave his statement that he is residing at H.No. C277, Harsh Vihar, Hari Nagar, Jaitpur, Delhi and working as Accountant in a private company. His daughter 'X' is studying in 9th class at Jhansi Rani Sarvodaya Vidyalaya, Railway Colony, Tuglakabad, Delhi. On 04.12.2010 at about 6.30 AM she went to her school but did not return home. He searched her but could not find her. He made suspicion upon one person namely Subhash, who is residing in his neighbourhood, to have taken his daughter 'X' by alluring her. On the statement of complainant, case was registered and accused and prosecutrix were searched. Investigation of the case was handed over to Inspector Surender Singh. Subsequently, prosecutrix was produced in the police station by her parents. Prosecurix was medically examined at AIIMS Hospital and exhibits were taken into possession by the police.
Statement of prosecutrix under Section 164 Cr.P.C was got recorded by the police. Investigation of the case was then handed over to SI Dara Singh. At the instance of prosecutrix, accused was arrested. Accused was medically examined at AIIMS Hospital and exhibits were taken into possession by the police. Exhibits were sent to FSL, Rohini, Delhi for examination. Coaccused Baby was not got arrested in the present case. Thereafter, statement of witnesses were got recorded by the Investigating officer and after completion of investigation, charge sheet under Section 363/366/376/120B IPC was filed against the accused Subhash in the SC No. 35/13 State Vs Subhash etc. Page No. 2 of 21 court.
2. Since the offence under Section 363/366 IPC is exclusively triable by the court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions.
3. On 05.05.2012 fresh supplementary charge sheet of co accused Baby was received by way of assignment before this court wherein vide order dated 15.02.2012 coaccused Baby has already been declared proclaimed offender by the Metropolitan Magistrate. Charge against the accused:
4. Prima facie case under Section 120B IPC, 363 r.w. Section 120B IPC, 366 r.w. Section 120B IPC and under Section 376 IPC was made out against the accused. Charge under Section under Section 120B IPC, 363 r.w. Section 120B IPC, 366 r.w. Section 120B IPC and under Section 376 IPC was framed upon the accused to which he pleaded not guilty and claimed trial. The other coaccused namely Baby was declared proclaimed offender.
Witnesses Examined:
5. In support of its case, prosecution has examined fifteen witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under: Material Witnesses:
6. PW2 is Sh. Raj Kumar, complainant of the case. He deposed that on 04.12.2010 his daughter /prosecutrix 'X' aged about 16 years is studying in IX class in Rani Jhansi Sarvodaya Kanya Vidyalaya, Railway Colony, Tuglakabad, New Delhi and had gone to her school but SC No. 35/13 State Vs Subhash etc. Page No. 3 of 21 she did not return home. He searched for her but she could not be located. Accused Subhash was also absconding from his house from that day hence, he suspected him and made a complaint Ex.PW2/A to the police. On 08.12.2010 he received a telephone call from the police station regarding recovery of his daughter. He along with his wife Seema reached police station and found their daughter. Police took his daughter for medical examination. Thereafter, police handed over prosecutrix to him and got recorded his statement. On 09.12.2010 on the instructions of IO he along with his wife took prosecutrix 'X' to Child Welfare Committee, Lajpat Nagar where statement of prosecutrix 'X' was got recorded and thereafter they took prosecutrix 'X' to court where her statement was got recorded by the magistrate.
7. PW5 is prosecutrix herself. She deposed that in the year 2001 she was studying in IX class in Rani Jhansi Sarvodaya Kanya Vidyalaya, Railway Colony, Tuglakabad, New Delhi. On 04.12.2010 at about 6.30 AM she was going to her school and was standing at Railway Bridge at Pul Prahladpur for the purpose of crossing the same. In the meantime, one woman came to her and told her name as Baby and told that she will help in crossing the bridge. She refused the same but she forcibly caught hold of her and got her boarded into a mini bus and made her inhale some stupefying substance due to which she became drowsy. She took her to Anand Vihar Bus Stand where accused Subhash, her neighbour, was already present and was having a car. The said lady and accused got her seated in car and took her to an unknown house in Eta, UP and kept her there the whole night. Accused committed rape with her there without her consent and against her will. The next morning she SC No. 35/13 State Vs Subhash etc. Page No. 4 of 21 asked Subhash to leave her at home which he refused. On 07.12.2010 accused Subhash intimidated and made her wore saree. He took her to a court and compelled her to sign the wedding papers. On that day accused Subhash and she came to Delhi. Accused took her to her aunt(tai) at Khadda Colony from where she came to the police station and narrated the story to the police. She was medically examined. On 09.12.2010 she was produced before the magistrate who recorded her statement vide Ex.PW1/B. On 10.12.2010 at the instructions of the police she along with her mother accompanied them to the house of accused at Harsh Vihar, Hari Nagar where police arrested the accused and his disclosure statement was recorded by the police and thereafter IO recorded her statement.
8. PW14 is Inspector Surender Singh, Ist IO who deposed that he recorded the statement of prosecutrix, got the prosecutrix medically examined, got recorded the statement under section 164 Cr.P.C. of the prosecutrix, handed over the custody of prosecutrix to her parents, recorded the statement of witnesses and further investigation was handed over to SI Dara Singh. He has duly proved Ex.PW8/A, Ex.PW14/A, Ex.PW1/B and Ex.PW1/D on record.
9. PW15 is SI Dara Singh, IInd IO who stated that he along with HC Shyam Lal reached at H.No. C229, Harsh Vihar, Hari NagarIII, Jaitpur for the arrest of accused where younger brother of accused called Subhash. Prosecutrix 'X' and her parents were also called at the house of accused and prosecutrix identified the accused and thereafter he inquired accused Subhash and recorded his disclosure statement Ex.PW1/C. Accused was then arrested vide arrest memo Ex.PW12/A and his personal search was conducted vide personal search memo Ex.PW12/B. SC No. 35/13 State Vs Subhash etc. Page No. 5 of 21 Supplementary statement of prosecutrix was recorded under Section 161 Cr.P.C. On 11.12.2010 accused was got medically examined at AIIMS Hospital and all the exhibits were seized along with sample seal vide seizure memo Ex.PW10/A. He obtained the age record of the victim/prosecutrix from her school and exhibits were sent to FSL. He then recorded the statement of public witnesses and prepared the charge sheet and submitted the same before the court. Coaccused Baby was not found and she was got declared PO and supplementary chargesheet was filed in the court. Accused was correctly identified by the accused. Formal Witnesses:
10. PW1 is Sh. Anuj Aggarwal who recorded the statement of prosecutrix 'X' and duly proved on record Ex.PW1/A to Ex.PW1/D.
11. PW4 is Ms. Anita, Principal, Ratan Jee Modern School, Tanki Road who stated that as per record prosecutrix 'X' was admitted in their school in Class I in the year 2001 and the entry in the admission register was made to this effect at serial number 86 and date of birth of prosecutrix is 21.11.1994. The date of birth was recorded in the school on the basis of MCD Birth Certificate. Certificate to this effect given to the police is Ex.PW4/A and copy of MCD Certificate is Ex.PW4/B. The copy of relevant entry of admission of prosecutrix 'X' is Ex.PW4/C and copy of application form is Ex.PW4/D.
12. PW6 is HC Shiv Charan who upon receipt of rukka Mark X through ASI Raghubar Dayal recorded formal FIR. Computerized print out of FIR is Ex.PW6/A. After the registration of FIR he handed over the rukka and copy of FIR to Inspector Surender Singh, IO of the case. He SC No. 35/13 State Vs Subhash etc. Page No. 6 of 21 has duly proved endorsement of rukka Ex.PW1/B.
13. PW7 is HC Rajbir who deposed that on the instructions of IO he handed over four pullandas duly sealed with the seal of CMO, AIIMS Hospital along with two sample seal to Ct. Rajender vide RC NO. 9/21/11 who took the same to FSL and receipt was handed over to him. His statement was then recorded to this effect by the IO.
14. PW8 is W/Ct. Sharmila who deposed that she along with IO took the prosecutrix 'X' to AIIMS Hospital where the doctor handed over the pullanda to IO which were taken into possession vide memo Ex.PW8/A.
15. PW9 is Ct. Rajender Kumar who deposed that on 25.01.2011 on the instructions of IO he had collected four pullandas from the MHCM PS Jaitpur vide RC No. 9/21/11 and took the same to FSL, Rohini and deposited the same there. Receipt of the same was given back to the MHCM PS Jaitpur. He stated that IO recorded his statement to this effect.
16. PW10 is Ct. Sachin Kumar who deposed that he joined the investigation with the IO, took accused Subhash to AIIMS Hospital and got him medically examined. After medical examination the doctor handed over four pullandas duly sealed with the seal of CMO AIIMS Hospital along with one sample seal to the IO which were taken into possession vide Ex.PW10/A. IO recorded his statement to this effect. Accused was correctly identified by the witness in the court.
17. PW11 is ASI Raghuvar Dayal who deposed that on 08.12.2010 complainant came to police station and reported about the kidnapping of his daughter 'X'. His statement was recorded vide SC No. 35/13 State Vs Subhash etc. Page No. 7 of 21 Ex.PW11/A and case was registered. Further investigation was assigned to Inspector Surender Singh. He along with Inspector Surender Singh went to the house of complainant where one lady Manju informed that prosecutrix 'X' and her parents were gone to police station. They came back to police station and he along with L/Ct. Sharmila and the parents of the prosecutrix took the prosecutrix to AIIMS Hospital and got her medically examined. After the medical examination of the prosecutrix the doctor in the hospital handed over one pullanda containing three vaginal smear slides sealed with the seal of hospital along with sample seal to him which he produced before the IO who recorded his statement.
18. PW12 is HC Shyam Lal who deposed that on 10.12.2010 he joined the investigation with the IO, went to the house of accused i.e. H.No. C229, Harsh Vihar and met Pramod, younger brother of accused. Pramod called up the accused. IO also called the parents of the prosecutrix along with prosecutrix to the house of accused and prosecutrix identified the accused. IO arrested the accused vide arrest memo Ex.PW12/A and conducted his personal search vide personal search memo Ex.PW12/B. IO also recorded disclosure statement of accused vide Ex.PW12/C. IO recorded his statement and the witness has correctly identified the accused in the court.
Medical Witnesses:
19. PW3 is Dr. Shashank Pooniya who had examined the accused and prepared the MLC Ex.PW3/A and after examination he opined that there was nothing to suggest that the accused was not capable of performing sexual intercourse in normal circumstances. Blood in SC No. 35/13 State Vs Subhash etc. Page No. 8 of 21 gauze, penile swab and underwear of accused were sealed and handed over to the police along with the sample seal.
20. PW13 is Dr. Manu Goyal who deposed that he had medically examined the prosecutrix 'X' and prepared detailed MLC Ex.PW13/A and opined that the hymen of the prosecutrix was ruptured. Vaginal smear in sealed condition was handed over to IO. She stated that prosecutrix has stated that on 04.12.2010 while going to school at about 6.30 AM she was kidnapped and taken to UP where she was forced to sign marriage certificate with the one Subhash.
Statement and Defence of accused :
21. Statement of accused under Section 313 Cr.P.C was recorded wherein the accused denied the case of the prosecution and stated that it is a false case made by the complainant. He stated that prosecutrix was sending love letters to him. In the year 2010 he went to his village where prosecutrix also came along with her relative Baby stating that she had come to me after quarreling with her parents and insisted him to marry her. Prosecutrix and Baby then made him come to Eta, UP and took him to the court and pressurized him to sign on marriage papers and threatened him that if he did not sign the same she will falsely implicate him in a rape case. After performing marriage, he asked the prosecutrix to return home but she refused the same and in between the father of the complainant made police complaint. Police enquired from his brother. He along with his brother, prosecutrix and Baby returned to Delhi and he was apprehended by the police. He stated that it is a false case lodged against him by the prosecutrix. Accused further stated that he wish to SC No. 35/13 State Vs Subhash etc. Page No. 9 of 21 lead defence evidence and had produced one defence witness in the witness box. DW1 is Sh. Hardeep Singh, Medical Record Technician, VMMC & Safdarjung Hospital, New Delhi who had brought the admission register of patients during the period from 15.11.1994 to 22.11.1994. He deposed that one patient Seema was admitted in the hospital vide MRD No. 76873 dated 21.11.1994 in gynaecology ward and prove the certified copy Ex.DW1/A. He stated that as per usual practice at the time of birth of child/delivery, in the live report the name of the child is not mentioned by the hospital and in the column of name of the child, only the baby of the particular lady who had delivered the child is mentioned. He stated that as name of prosecutrix 'X' was not mentioned in this report by their hospital when it was issued. Original of the live birth report already Ex.PW4/B is not available in their records since as per rules they preserve the record of admitted patients only upto 10 years.
22. I have heard the Ld. Defence counsel for the accused and Ld. APP for state and have carefully perused the record. Arguments of Ld. APP for state:
23. Ld. APP for the state has argued that the prosecutrix is minor as per the school records based on the MCD certificate and the MLC also speaks about the rupturing of hymen. Hence, offence is proved against the accused and he is liable to be convicted.
Arguments of Ld. Defence Counsel for accused:
24. It is stated by the counsel for the accused that prosecutrix has changed his version before the court, before the police and the magistrate. She denied any history of sexual assault in MLC. The SC No. 35/13 State Vs Subhash etc. Page No. 10 of 21 prosecutrix has admitted love letter, photographs and the marriage certificate. In fact she has voluntarily accompanied the accused and married him. As per the statement of DW1 the name on the MCD birth certificate is manipulated one and as such the MCD certificate cannot be relied upon to prove that the prosecutrix was minor. Hence, it is prayed that the accused be acquitted of the offences. Ld. Counsel for the accused has cited the judgements :
1. Kulwant Singh vs State (Govt. of NCT of Delhi) IV (2010) DLT (Crl.)
97.
2. Vinod Kumar Vs State, Crl. A. No. 761/2000 decided on 05.03.2013 by Hon'ble High Court.
3. Suresh @ Ravi Vs State of Madhya Pradesh Crl. A. No. 632/1993.
4. Srikant @ Babu @ Rohit Vs State (NCT of Delhi) in Crl. A. No. 1175/10 by the Hon'ble High Court on 09.07.2013.
Conclusion:
25. Before appreciating the facts of this case,it is necessary to know the ingredients of the offence by resorting to the provisions of sec.375 read with sec.376 IPC. Section 375 Rape provides: " A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First Against her will.
Secondly Without her consent.
Thirdly With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of SC No. 35/13 State Vs Subhash etc. Page No. 11 of 21 death or of hurt.
Fourthly With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly With or without her consent, when she under sixteen years of age.
Explanation Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
26. "Rape" is the act of physically forcing a woman to have sexual intercourse: an act of sexual intercourse that is forced upon a woman against her will. "Statutory rape" is a sexual intercourse with a girl under the age of consent, which age varies in different States from ten to eighteen years.
27. The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. lett. 123b); or as expressed more fully, 'rape' is the carnal SC No. 35/13 State Vs Subhash etc. Page No. 12 of 21 knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section requires the following essentials:
1. Sexual intercourse by a man with woman.
2. The sexual intercourse must be under circumstances falling under any of the six clauses in Section 375 IPC.
28. The two issues to be determined on the basis of evidence adduced by the prosecution are the age of the prosecutrix and whether she was a consenting party to the incident or not.
Age of the prosecutrix:
29. To prove the age of the prosecutrix the prosecution has relied upon her school record which is based on the MCD birth certificate of the prosecutrix. The school records are proved by PW4 Anita, Principal of Ratan Jee Modern School, Tanki Road. PW4 in her statement has stated that date of birth of the prosecutrix was recorded in their school records on the basis of MCD birth certificate and as per their school records the date of birth of the prosecutrix is 21.11.1994. In the cross examination of this witness from the side of accused, PW4 has stated that at the time of the admission of the prosecutrix in first class she had verified the original MCD birth certificate of the prosecutrix. The school records are exhibited as Ex.PW5/A to Ex.PW5/D. No other cross examination of this witness was conducted by the accused. Accused has challenged the authenticity of the birth certificate which is a certificate issued by the hospital where the prosecutrix was born by producing the witness DW1 Sh. Hardeep Singh, Medical Record Technician of VMCC, Safdarjung SC No. 35/13 State Vs Subhash etc. Page No. 13 of 21 Hospital who has admitted the live birth report Ex.PW4/B but has stated that usually the certificate are issued at the time of birth of a baby and name of the child is not mentioned in the live birth report and in the column of name of the child only the baby of the particular lady who has delivered the child is mentioned and in Ex.PW4/B the name of the child Priyanka was not mentioned. Even if this statement is taken as correct, this statement of DW1 cannot belie the authenticity of the school records as they are also based on this certificate which mentions the name of the mother of the prosecutrix and also proves the birth of the girl child. It cannot be presumed that the girl child as mentioned in the live birth report cannot refer to the prosecutrix when the school record is based on the same. It is settled in the case of Ashwani Kumar Saxena Vs State of Madhya Pradesh, (2012) 9 Supreme Court that firstly the matriculation or other certificate is admissible in evidence and thereafter the certificate of the first school attended and when both are not available, the MCD or other document of birth is to be taken into consideration while assessing the age of a juvenile/accused. Though these observations are made in the context of Juvenile accused but they can also hold good when the assessment of the age of a prosecutrix is made by the court. The reason that parents could have entered the wrong date of birth in the admission register is equal to thinking that the parents will do so in anticipation that some offence shall be committed against the child in which they can successively raise a claim that the victim is a minor. There is nothing on record to disbelieve the school records of the prosecutrix as proved by PW4 and the statement of DW1 cannot in any SC No. 35/13 State Vs Subhash etc. Page No. 14 of 21 manner conclusively prove that the live birth certificate report does not relate to the prosecutrix. Accordingly, in view of the statement of the PW4 proving the school record and the birth certificate given by the hospital the date of birth of the prosecutrix is proved to be 21.11.1994. The present incident had happened on 04.12.2010 hence, on the date of incident the prosecutrix was 16 ½ years of age.
Consent of the prosecurix:
30. The most material witness to prove the offence of kidnapping and rape is the prosecutrix and the complainant. The prosecutrix has herself appeared in the witness box as PW5, however the statement of the prosecutrix is not worthy of credit as it is having many contradictions to her earlier statement recorded under Section 164 Cr.P.C by Magistrate and under section 161 Cr.P.C. As per the statement of the prosecutrix made in the court she was going to the school and was standing at Railway Bridge at Pul Prahladpur for the purpose of crossing the same. At that time, one woman came to her and told her name as Baby and told that she will help her in crossing the bridge. She refused the same but she forcibly caught hold of her and got her boarded into a mini bus and made her inhale some stupefying substance and took her to Anand Vihar Bus Stand where accused Subhash, her neighbour, was already present with a car. They both made her seated in car and took her to Eta, UP where she was kept the whole night and in the night accused committed rape with her without her wishes. She further stated that on 07.12.2010 accused intimidated her and made her wore saree and he took her to a court and compelled her to put signatures on the wedding papers and on the same day they returned SC No. 35/13 State Vs Subhash etc. Page No. 15 of 21 to Delhi where she asked the accused to take her to her mother or to police station but the accused took her to her Tai(aunt) at Khadda Colony from where she went to police station of her own and reported the matter.
31. However, on the other hand, in her statement under Section 164 Cr.P.C the prosecutrix had stated that at Delhi younger brother of accused took her to the police station. She does not say that accused left her to the house of her tai (aunt) from where she went to the police station which is a contradiction in her statement.
32. As per the statement of the prosecutrix she was taken from Delhi to Eta, UP then to the court for marriage and then brought back to Delhi by the accused by means of mini bus or car. In the mini bus there must be other passengers and on the way to Eta, UP and back to Delhi or on the way to the court where allegedly she was forced to marry, she must have seen various persons on the road but it was not her case that she had tried to raise a noise at any point of time. During the time when she was taken in the Bus or in the car by the accused persons to Eta , UP or even on 07.12.2010 when she was taken to the court or when she was brought to Delhi by the accused, prosecutrix has not raised any hue and cry on the way. If she was taken forcibly to different places during her stay of four days with the accused she could have sought help from public persons by raising noise which is not done by the prosecutrix leading to the presumption that she voluntarily accompanied the accused.
33. Further, during her cross examination the prosecutrix was shown certain love letters Ex.PW5/DX, DY, Ex.DW5/DA, 5/DB. On the letter Ex.PW5/DX dated 29.09.2010 the prosecutrix has admitted her signatures and handwriting. Similarly on the other love letters she has SC No. 35/13 State Vs Subhash etc. Page No. 16 of 21 admitted her handwriting. It is not the case of the prosecutrix in her cross examination that the accused had forced her to write these love letters. The letter Ex.PW5/DX is dated 29.09.2010. The present incident had happened on 04.12.2010 i.e. much after to the writing of the love letters. These love letters go to prove that the prosecutrix and the accused were having affair prior to the incident.
34. During cross examination the prosecutrix was also shown six photographs Ex.PW5/DC collectively in which she admits her photographs with the accused but stated that all these photographs were taken under pressure as accused threatened to kill her brother. If this was so such fact was not narrated by the prosecutrix either before the magistrate who recorded her statement under Section 164 Cr.P.C or even before the court. Moreover, the photographs prima facie do not show any traces of fear on the face of the prosecutrix due to the said threat by the accused.
35. Prosecutrix has even admitted her signatures on the marriage certificate Ex.PW5/DD. If she was forced to sign on the marriage certificate in the court she should have raised hue and cry in order to save her.
36. The prosecutrix had stated that the accused had committed forcible rape upon her. However, before the doctor to whom the history was given by the prosecutrix on 08.12.2010 when she was medically examined she had denied any history of physical or sexual assualt there. As per the opinion of the doctor her hymen was found ruptured but there was no fresh tear and as per the opinion of the doctor vagina admits one finger easily. No injuries were found on the person of the prosecutrix.
SC No. 35/13 State Vs Subhash etc. Page No. 17 of 21 Hence, it is clear that to the doctor the prosecutrix has not given any physical or sexual assault.
37. The court is not oblivious of the fact that the daughters, after they are recovered under pressure of the family/parents or in order to save the honour of the family usually make statements against the boy. All these facts go to show that the prosecutrix and the accused were having affair prior to the incident and the prosecutrix had willingly accompanied the accused.
38. In almost identical facts Hon'ble Delhi High Court in the case of Vinod Kumar Vs State Crl. A. No. 761/2000 had come to the conclusion that it was a case of consent. Hon'ble Mr. Justice S.P. Garg had assessed the facts of that case to hold that: "On scrutinising the trial court record and the evidence produced before it, it reveals that the prosecutrix was known to the accused for about one year prior to the incident and they were acquainted with each other. The accused used to visit her home. On the day of incident, the prosecutrix was alone accompanied the accused. From the circumstances brought on record, it appears that the accused and the prosecutrix were deep in love and she accompanied him with her free consent without informing her parents. The prosecutrix remained in the company of the accused for four days and at no stage, she raised hue and cry. She did not resist sex with her. She was not alone in the place where she remained with the accused. She did not complain kidnapping and sexual assault. When her father lodged complaint with the police the accused's father brought both of them to Delhi and produced before the police. In her medical examination, no injuries were found on her body SC No. 35/13 State Vs Subhash etc. Page No. 18 of 21 to show if physical relationship was established without her consent. The accused produced number of documents on record to show that the prosecutrix had voluntarily performed marriage with him. DW2 Sudhir Kumar proved petition No. 22/99 filed by the prosecutrix against the accused under section 125 Cr.P.C on 28.02.99, wherein she admitted her marriage with the accused. In her cross examination, she admitted that petition (Ex.PW2/DA) contains her signatures at point A. She signed the said documents twenty days prior to the incident. She had travelled with the accused to Meerut but at no stage, raised any alarm complaining her forcible abduction. Apparently, the prosecutrix was a consenting party throughout. "
39. Accordingly, in view of the above discussion it is proved that the prosecutrix had willingly accompanied the accused. The testimony of the prosecutrix that the accused committed rape upon her is not believable and it appears to be case of consent. Since the prosecutrix was more than 16 years of age on the date of offence and it is not proved that there was forcible rape upon the prosecutrix, the offence under Section 376 IPC is not proved against the accused.
Offence of Criminal Conspiracy, Kidnapping and Abduction etc:
40. Conspiracy has been defined in section 120A IPC which runs as under :
"120A. Definition of criminal conspiracy. When two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no SC No. 35/13 State Vs Subhash etc. Page No. 19 of 21 agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation. It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
41. So far as offence under criminal conspiracy is concerned the prosecution has not proved that there was any prior meeting of minds between the accused Subhash and coaccused Baby prior to the kidnapping. Further, when this court has come to the conclusion that the prosecutrix has herself gone with the accused the offence of criminal conspiracy to kidnap the prosecutrix goes.
Offence of Kidnapping:
42. For the offence under section 363 of IPC, the prosecution has to prove the ingredients of the offence as mentioned in section 361 of IPC i.e.:
i) taking or enticing a minor girl under 18 years of age,
ii) Out of the keeping of lawful guardian of such minor,
iii) without their consent.
Offence under section 366 IPC:
43. For proving the offence under section 366 IPC the prosecution has to prove the following ingredients.
The essential ingredients of section 366 of IPC are :
(a) A person kidnaps or abducts any woman.
(b) The act is done
(i) with intent that she may be compelled to marry any person SC No. 35/13 State Vs Subhash etc. Page No. 20 of 21 against her will, or
(ii) knowing it to be likely that she will be so compelled, or
(iii) in order that she may be forced or seduced to illicit intercourse, or
(iv) knowing it to be likely that she will be so forced or seduced.
44. As per the deposition of PW2 who is the complainant in this case and is father of the prosecutrix, prosecutrix had gone to her school at 6.30 AM on 04.12.2010 but did not return and gone missing. PW2 had raised a finger of suspicion against the accused in the complaint. Though I have observed that prosecutrix had willingly accompanied the accused but since the prosecutrix was less than 18 years of age her consent is immaterial. From the statement of PW2, prosecutrix coupled with the defence of the accused it is proved that prosecutrix was kidnapped from the lawful guardianship of her parents by the accused for the purpose of marriage. Accordingly, offence under Section 363/366 IPC are proved against the accused Subhash.
45. In view of the above said discussion, accused Subhash is held guilty and convicted for offence under Section 363/366 IPC. Accused Subhash is however acquitted of the offence under Section 376/120B IPC.
ANNOUNCED IN THE OPEN COURT ON 26.06.2014.
( RENU BHATNAGAR )
DESIGNATED JUDGE
TADA/POTA/MCOCA
ASJ SE01/NEW DELHI
SC No. 35/13 State Vs Subhash etc. Page No. 21 of 21