Delhi District Court
State vs Chandan @ Titoo on 16 March, 2010
1 FIR no.118/05 PS Adarsh Nagar
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS
ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI
S.C. No. 598/06
FIR No. 118/05
P.S. Adarsh Nagar
U/s 363/366A/376 IPC
State Versus Chandan @ Titoo
S/o Baccha Ram
r/o Village and Post office
Garhi PS Baghwale, District
Ettah UP
Date of Receipt : 11.10.2006
Date of Conclusion of arguments : 25.02.2010
Date of Decision : 12.03.2010
JUDGMENT :
1. The accused Chandan @ Titoo has been chargesheeted by PS Adarsh Nagar for commission of offence under Section u/s 363/366A/376 IPC.
2. Story of prosecution in brief is that on 13.3.05 Sh. Ram Sadha Brij reported at PS Adarsh Nagar that since 12.3.05 his daughter who .......contd.
2 FIR no.118/05 PS Adarsh Nagar was aged 14 years is missing. He did not suspect anybody in his complaint to the police. On this DD No.18B was recorded. On 15.3.05 he again came to the police station and told that on 12.3.05 at about 6 PM his daughter has gone to the market to purchase something and he suspected that his daughter has been allured away by Titoo S/o Baccha Ram . On this FIR no.118/05 was registered. Investigation was carried out. The birth certificate of the gril was seized. On 13.12.05 the girl was recovered from the house of accused situated at village Garhi Zila Ettah UP. Accused was also there. He was arrested. They were brought to Delhi. The girl as well as accused were got medically examined. Charge sheet against the accused was filed.
3. Learned Metropolitan Magistrate after complying the provisions of Section 207 Cr.P.C, committed the case to the court of Sessions as the offence punishable u/s 366 A/376 IPC are exclusively triable by the Sessions Court.
4. Accused was charged by my Ld. Predecessor for the offence punishable U/s 363/366A and 376 IPC to which he pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
.......contd.
3 FIR no.118/05 PS Adarsh Nagar
5. Prosecution in order to bring home the guilt of the accused, examined 15 witnesses. Thereafter PE was closed.
6. Statement of accused was recorded u/s 313 Cr.P.C, wherein he denied the entire allegations and stated that he is innocent and has been falsely implicated in this case. He is a poor fellow. Prosecutrix Anita was with him with her own sweet will. He asked her to get permission from her parents but she refused when parents of prosecutrix came at his home she refused to recognize them and refused to go with them. He did not wish to lead evidence in his defence. Thereafter the case was fixed for final arguments.
7. I have heard final arguments form the learned Additional Public Prosecutor for the State, learned counsel for the accused and perused the record.
8. Thereafter case was fixed for Orders after hearing the arguments Ld. Addl. PP for the State moved an application U/s 311 Cr.PC for calling the Principal of the school who issued the school leaving certificate Ex.PW3/A. Application was dismissed.
9. Ld. Addl. PP submitted that in the present case, prosecutrix was examined as PW1 and she has fully supported and corroborated the .......contd.
4 FIR no.118/05 PS Adarsh Nagar prosecution case. She has specifically stated that on 12.03.2005, when she came out of her house with her friend, accused and his friend Kalia asked her to accompany them, failing which they would kill her brother. Due to fear, she accompanied them. They took her to the bus stop and from there they took her Itawa in a bus. On the way, they also changed the bus. In Itawa, the accused took her to the house of his Mausi. There, the accused did the wrong act with her. By wrong act, the witness means 'Balatkar'. She requested the accused to send her to her parents, but he did not agree. Accused also beat her. After two days, her parents came along with two friends of the accused, but the accused did not allow her to accompany her parents. Chacha of the accused took her out to show her face to her parents, as they were weeping. Chacha of the accused threatened her that if she accompanied her parents, they would kill her parents and did not allow her to accompany her parents. Learned Addl. PP submitted that this fact is also supported by the testimony of PW6, who stated that he along with the parents went to the village of accused Chandan, where prosecutrix also met them, but she refused to accompany her parents and even refused to identify her parents. The testimony of the parents is also supported by prosecutrix on this aspect. In fact, she refused to accompany them under the threat from the uncle of the accused, for which she cannot be faulted with because she was of tender age. The incident .......contd.
5 FIR no.118/05 PS Adarsh Nagar was of the year 2005. According to School Leaving Certificate proved on record Ex. PW3/A, her date of birth was 01.04.1992, that means, she was barely 13 years of age at the relevant time. The witness has also stated that thereafter, the accused married with her telling his own age 22 years and her age as 19 years. The accused took her to the house of his Mausi and then to his parents. Ld. Addl. PP submitted that this witness has also explained as to why in her statement u/s 164 Cr.P.C, she deposed against the prosecution as she was under fear. She stated that accused and his Chacha threatened her to kill her, if she supported the prosecution case.
10. Ld. Addl. PP further submitted that prosecutrix herself has stated that accused had raped her. The medical evidence i.e. MLC of the prosecutrix Ex. PW10/B also shows that she was subjected to sexual intercourse. Ld. Addl. PP submitted that in the present case, the prosecutrix was only 13 years of age as is evident from the School Leaving Certificate, therefore, there was no need for the ossification test to be conducted, but the ossification test was conducted in this case and according to the ossification test report Ex. PW8/A, the estimated age of the prosecutrix was 15 to 16 years. Ld. Addl. PP submitted that as there is clinching evidence against the accused in the form of School Leaving Certificate, which was issued much prior to the date of incident i.e., on 01.04.2003, whereas the incident has .......contd.
6 FIR no.118/05 PS Adarsh Nagar taken place in March 2005, therefore, it cannot be said that father of the prosecutrix got issued this certificate with the intention that it would be used later on, if any such incident would take place. Ld. Addl. PP submitted that there is a specific evidence in the form of School Leaving Certificate, no reliance can be placed upon the Ossification Test Report Ex. PW8/A. Ld. Addl. PP in support of her arguments relied upon the judgment cited as State of Maharashtra vs. Gajanan @ Hemant Janardhan Wankhede (2008), Criminal Law Journal 3549, wherein it has been held that :
"High Court in absence of any evidence to the contrary should not have come to hold that the date of birth of the prosecutrix was not established and School Leaving Certificate and School Register are not conclusive. Interestingly, no question was put to the victim in crossexamination about the date of birth. High Court has also noted that no document was produced at the time of admission and a horoscope was purportedly produced. There is no requirement that at the time of admission, documents are to be produced as regards to the age of the student. Practically, there was no ayalysisof the evidence on record and abrupt conclusions, mostly bases on surmises, were arrived at. Hon'ble Supreme Court held that the reliance on the School Leaving certificate for determining the age of the prosecutrix can be placed."
.......contd.
7 FIR no.118/05 PS Adarsh Nagar Ld. Addl. PP submitted that in view of this judgment of the Hon'ble Supreme Court as in the present case also, the School Leaving Certificate has been proved as Ex. PW3/A, which was issued about two years prior to the date of incident and according to that, prosecutrix was only 13 years of age. There is no reason to disbelieve this document, particularly when, there is no documentary evidence to disbelieve the same and this document was also not prepared after the incident and it cannot be presumed that father or the prosecutrix got this document forged to be used in this case. Ld. Addl. PP submitted that prosecutrix was minor at the time of incident and she was not able to give consent. She even cannot give consent to have sexual intercourse and she was subjected to sexual intercourse as has come in the evidence of PW1, which is corroborated by the medical evidence, therefore, the accused be held guilty.
11. Learned defence counsel submitted that prosecutrix was 15 to 16 years of age as per the Ossification Test Report Ex. PW8/A. It is well settled principle of law that in determination of age by way of ossification test, there is variation to two years and if that principle is followed, then the prosecutrix was major or of the consenting age at the time of commission of offence. Evidence on record also shows that she was a consenting party. When the parents of the prosecutrix .......contd.
8 FIR no.118/05 PS Adarsh Nagar came to the house of the accused, she refused to accompany them and even refused to identify them as her parents. This fact has also come in the testimony of PW6, but now the prosecutrix is trying to wriggle out of her conduct on that day and stated that she did so due to the threat of the uncle of the accused. No such statement was made by her either before the police or before the Ld. Magistrate in her statement u/s 164 Cr.P.C. Before the Ld. Magistrate, she rather deposed that :
"She wants to marry Chandan, The accused also loves her, but her parents were not willing to marry her with Chandan as Chandan belongs to lower caste (Dhobi) and they were Passi. She wants to marry with Chandan of her own free will after getting him out from the jail. Her parents want her to give statement as per their will and they wanted to get her married. They also threatened her to break the hand and feet of Chandan. She is not willing to go to her parent's home and wants to go with Chandan. She remained as wife of Chandan for eight months and her two and half months pregnancy was aborted."
12. Ld. Defence counsel further submitted that her this statement was recorded when she was not under any threat or pressure either from .......contd.
9 FIR no.118/05 PS Adarsh Nagar the accused or any of his family members, as the accused was already in custody and prosecutrix was also living with her parents. Accused or his family were not having any connection with the prosecutrix, therefore, her statement that she was under threat, is wrong. Ld. Defence counsel submitted that keeping in view the Ossification Test report Ex. PW8/A and her statement Ex. PW1/A recorded u/s 164 Cr.P.C, it is clear that she was a consenting party and she willingly accompanied the accused and the relations were established with her consent, it is prayed that accused be acquitted.
13. After hearing the arguments and going through the record, I find that in the present case, there are two documents about the age of the prosecutrix, first is the School Leaving Certificate Ex. PW3/A, according to which, the prosecutrix was barely 13 years of age on the day of commission of offence and other document is Ossification Test Report Ex. PW8/A, according to which, age of the prosecutrix was between 15 to 16 years on the date of examination. The contention of the learned Addl. PP is that the document Ex. PW3/A was prepared on 01.04.2003 that is, much prior to the date of incident, therefore, reliance upon the same can certainly be placed and the Ossification Test Report be not relied upon as it is not the conclusive method of deciding the age, whereas the defence has submitted that Ossification Test Report be considered, as according to it the .......contd.
10 FIR no.118/05 PS Adarsh Nagar prosecutrix was of the consenting age and her testimony also shows that she was a consenting party. Law in these circumtances is that if there are two sets of evidence on the record or two views are possible on the basis of evidence on record, then the one favouring the accused be relied. Even otherwise, according to Ossification Test Report, which the prosecution itself has got prepared and placed the same on record, the prosecutrix was between 15 to 16 years of age on the date of examination i.e after eight months of the commission of the offence. On this point, the law is very clear that in determination of age on the basis of Ossification Test, there is a variation of two years in determining the age by this method and if that rule is followed, the prosecutrix was of consenting age on the date of incident and commission of offence. No doubt, School Leaving Certificate is there, according to which, the prosecutrix was only 13 years at the relevant time, but in view of the Ossification Test Report, which the prosecution has itself placed on record, in my opinion, it has to be considered and relied upon.
14. According to the statement of the prosecutrix, she was threatened by the accused's friend, when she came out of her house along with her friend, but that friend of prosecutrix has never been examined or produced in the witness box, rather, there is no reference of any friend in the entire charge sheet. The evidence which has come on .......contd.
11 FIR no.118/05 PS Adarsh Nagar record shows that prosecutrix remained with the accused for about eight months and in between the parents of the prosecutrix along with PW6 Sanjay went to the village of the accused, but according to parents, the villagers did not allow them to go there and they turned them away, but according to PW6, the prosecutrix refused to identify her parents and also refused to accompany them. Prosecutrix in her examinationinchief itself explained the same and stated that she was threatened by the uncle of the accused that if she accompanied her parents, he would kill her parents. The explanation given by the prosecutrix appears to be plausible as at that time, she was under the custody and control of the accused persons. Thereafter, she was rescued from the accused and was brought to Delhi, she went to her parents and her statement u/s 164 Cr.P.C was got record. It is important to mention here that prosecutrix was recovered on 13.12.2005 and her statement u/s 164 Cr.P.C was recorded on 15.12.2005. It is also important to note that accused was in the custody at the relevant time as he was also arrested on 13.12.2005 and prosecutrix was also knowing this fact. When the prosecutrix appeared before the Ld. Magistrate, she stated that she wants to marry with the accused. She is in love with the accused. Her parents threatened her to depose according to them and that she does not want to go along with her parents and she wants to go along with Chandan and to marry him. She also stated that she remained as .......contd.
12 FIR no.118/05 PS Adarsh Nagar her wife for about eight months and that her two and half months pregnancy was also aborted. She nowhere in her statement u/s 164 Cr.P.C stated that she was forced to have sexual intercourse with the accused or the accused had sexual intercourse with her against her wishes. The contention of the ld. Addl. PP is that this statement was given under threat as deposed by the prosecutrix, but I do not agree with the contention of the Ld. Addl. PP, in view of the fact that prosecutrix was free at that time and she was not under the control or custody of the accused. She was knowing well that accused was in jail at the relevant time. She herself stated in her statement Ex. PW 1/A that she wanted to take the accused out of the jail. She rather stated that she was threatened by her parents. Under these circumstances, I do not find any reason that there was any threat or pressure upon the prosecutrix to depose falsely before the Magistrate. In view of this fact that prosecutrix herself stated before the Ld. Magistrate that she loves the accused and she wants to marry him and they lived as husband and wife for eight months and that she still wants to go along with accused. She nowhere stated that she was sexually assaulted by the accused or that the accused had sexual intercourse with her against her wishes, but now in the witnessbox, she stated that she was subjected to sexual intercourse against her wishes, clearly shows that she is an unbelievable witness and cannot be relied upon. In my considered opinion, she was a .......contd.
13 FIR no.118/05 PS Adarsh Nagar consenting party and she had sexual intercourse with the accused of her own free will. Ld. Addl. PP also submited that this free will may be relevant for deciding the offence punishable u/s 376 IPC, but still the offence u/s 366 is made out as the age of the prosecutrix must be 18 years or above 18 years, which is not in the present case and the accused be held guilty u/s 366, for taking the prosecutrix out of the lawful custody of her parents for the purpose of marriage and knowingly that she would be subjected to sexual intercourse, but I do not agree with this contention of the Ld. Addl. PP, as the prosecutrix was not forced to sexual intercourse against her wishes and she was not forced to marry with the accused against her wishes as is evident from Ex. PW1/A. No doubt, the accused has taken her out of the custody of her legal and natural guardian without their consent, but that is not the only requirement for making out an offence punishable u/s 366 IPC. In the present case, the accused was not charged for the offence punishable u/s 366 IPC and he was charged u/s 366 A IPC, but even if, it is to be considered, then still he cannot be convicted u/s 366 IPC. I am of the opinion that the offence is not proved as there is nothing on record showing that the marriage was against the will of the prosecutrix or that she was subjected to sexual intercourse against her will. I, therefore, acquit the accused on both these counts. But as the accused had taken out the prosecutrix out of the custody of her parents/legal and natural guardian, without their .......contd.
14 FIR no.118/05 PS Adarsh Nagar consent, the offence punishable u/s 363 IPC is made out against the accused as he should have taken the consent of her parents before taking the prosecutrix, who was less than 18 years of age at the relevant time, I, therefore, hold the accused guilty for the offence punishable u/s 363 IPC and he is convicted accordingly.
Announced in open Court
on today i.e. 12.03.2010 (V.K. BANSAL)
ADDL. SESSION JUDGE : DELHI
.......contd.
15 FIR no.118/05 PS Adarsh Nagar
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI S.C. No. 598/06 FIR No. 118/05 P.S. Adarsh Nagar U/s 363/366A/376 IPC State Versus Chandan @ Titoo S/o Baccha Ram ORDER ON THE POINT OF SENTENCE 16.03.2010 Present: Ld. APP for the State.
Convict in person with counsel.
Arguments heard on the point of sentence and perused the file. Ld. Counsel for the convict submitted that convict has no previous criminal record ; he is only 24 years of age ; he is having his parents and three younger sisters ; he is the sole breadearner of the entire family and he earns his livelihood by pulling rickshaw ; he has already remained in custody for about seven months. It is prayed that a lenient view be taken against him.
.......contd.
16 FIR no.118/05 PS Adarsh Nagar On the other hand, Ld. Addl. PP for the state submitted that accused has kidnapped a minor girl and because of the conduct of the convict, her entire life is ruined and therefore, no leniency be shown to him and maximum punishment be awarded to him.
Keeping in view the submissions made by the ld. Defence counsel, by the Ld. Addl. PP and the fact that convict kidnapped the minor girl, which would effect the whole life of the girl, but at the same time, keeping in view the fact that girl was a consenting party but was below 18 years of age and the convict is sole bread earner of the family consisting of six persons and belong to a poor family and is of young age, I sentence the convict Chandan @ Titoo to undergo rigorous imprisonment for six months, along with fine of Rs. 1,000/ u/s 363 IPC, in default of payment of fine, to undergo two months S.I. Benefit of Section 428 Cr.P.C be given to the convict. Copy of judgment and copy of order on the point of sentence be given to him dasti.
File be consigned to record room.
Announced in open Court
on today i.e. 16.03.2010 (V.K. BANSAL)
ADDL. SESSION JUDGE : DELHI
.......contd.