Delhi District Court
Additional Sessions Judge( West-04) vs Unknown on 9 April, 2010
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 112/1/08
State
Versus
1- Tehsildar Thakur,
S/o Rampyare
R/o P.S. Tarabganj, Village-Bisanpur,
District-Gonda, U.P.
2- Dharampal Thakur,
S/o Dukhharan Singh,
R/o Village Gangroli,
P.S. Umri Begum Ganj,
District- Gonda, U.P.
(i)Case arising out of FIR No.282/2006
U/S: 366/34 IPC
P.S. Sadar Bazar
(ii) Date of FIR 06/09/06
(iii) Date of Institution 30.04.2007
(iv)Date of Final Arguments 31.3.2010
(v) Judgment reserved on 31.03.2010
(iv) Date of judgment 09/04/10
JUDGMENT
The allegation against the accused persons are that they are facing trial on the charges that on 1.9.2006 at about 5.30 am at house No. 1919, Bagichi Raghunath, Gali Paharwali, Sadar Bazar, within the jurisdiction of P.S. Sadar Bazar, both of them in furtherance of their common intention committed abduction of a girl Pooja aged about 20 years with the intention and knowledge that she may be subjected to illegal sexual intercourse and thus thereby committed offence punishable u/s 366/34 IPC.
As per the version of PW14 SI Jagdish Kumar Bajaj that prosecution story is that on 06/09/2006 while posted at PS Sadar Bazar, Duty Officer after registration of the case gave him the investigation and then he along with complainant Subedar Mishra went in search of accused S.C. No.112/1/08 Page1/11 persons Dharampal and Tehsildar at different places like Motiyakhan, Sadar Bazar etc. The allegations against accused Tehsildar are that with the help of accused Dharampal he had taken away girl Poonam with them. SI Jagdish Kumar Bajaj recorded statement of mother, brother and sister of prosecutrix. The messages were sent to different Police Stations and also went to district Ghonda but the accused persons were not traced. SI Jagdish Kumar Bajaj obtained NBW of both the accused on 20/09/2006 and HC Jagat Singh with Constable. Balbir were sent to district Ghonda with complainant Subedar Mishra and his daughter Neelam. HC Jagat Singh on 01/10/2006 arrested accused Dharampal Thakur vide arrest memo Pw1/B, personal search Pw1/C conducted. He was produced in the court in Delhi and four days PC remand was obtained. SI Jagdish Kumar Bajaj searched for accused Tehsildar and the girl Poonam but she could not be traced. Process u/s 82 Cr.PC were got issued and HC Jagat was again sent for execution. On 27/10/2006 accused Tehsildar was arrested and the girl Poonam was recovered and both were brought to Delhi and were got medically examined and were produced in court. SI Jagdish Kumar Bajaj had also seized the sealed Pulandas of accused Tehsildar vide memo Pw6/A and of the girl Poonam vide memo Pw8/B and also recorded disclosure statement Ex Pw14/A. SI Jagdish Kumar Bajaj also got recorded statement of Poonam u/s164 Cr.PC and obtained a copy of the statement. Accused Tehsildar had married to Poonam after enticing her and after influencing her and not as per her free will. SI Jagdish Kumar Bajaj had also collected the copies of the papers which are collectively Ex Pw13/A and recorded statements of witnesses and also collected MLCs of Poonam and the accused Tehsildar vide Ex Pw14/C. After completing investigation, Challan was filed in the case.
On compliance of section 207 Cr.P.C a prima facie charge for offence punishable u/s 366/34 IPC was framed upon both the accused persons. For which both the accused persons contested the challan.
Prosecution in order to substantiate the allegation against the accused persons examined PW1 Subedar Mishra , PW2 Surender Mishra, PW3 Poonam Mishra and PW4 Phoolwati as independent witnesses and other PWs examined are the police official who joined the investigation in the present case and proved the document prepared during the course of S.C. No.112/1/08 Page2/11 investigation and exhibited the same during their statement.
After completion of prosecution evidence statement of accused persons u/s 313 Cr.P.C recorded. The accused Tehsildar Thakur denied the evidence led by prosecution as false and incorrect with the submission that he had married with Poonam with her consent and Poonam was also happy and she was also of major age. She had of her free gone with him to his village with her free will and free consent. He did not play any fraud or force on her for marriage with her or He did not offer any kind of Parshad. He is innocent and falsely implicated in the case. Poonam was forced and influenced by her father to give a false statement against him. He had not taken any help from Dharampal and who is also falsely implicated.
Accused Dharampal during his statement recorded u/s 313 Cr.P.C has also denied the allegation made against him as false and incorrect and had no knowledge about the relationship of accused Tehsildar and Poonam. He had not helped him in taking Poonam anywhere or has no role in the marriage of Poonam and Tehsildar nor he rendered any kind of help to Tehsildar or Poonam for going from Delhi. He being Jija of Tehsildar was falsely implicated in the case by the Police at the instance of the father of Poonam.
DW1 Ram Avtar Yadav is examined as defence witness by the accused person , who deposed that he personally known to the Dharmpal since childhood as he is his friend. He lived nearby his house. Dharmpal never visited Delhi for treatment of his wife and he has never resides with his brother in law Tehsildar. He did not know about the marriage of accused Tehsildar. So far as his knowledge of accused Tehsildar never resides with him or with Dharmapal alongwith some girl. The accused Dharmpal used to busy in domestic affairs and never visited outside and he is not a criminal.
No other witness was examined by accused persons in their defence and on the statement of counsel for accused defence evidence was closed.
I have heard submission of Ld. APP for State and counsel for the accused persons and also gone through the material on record.
Ld. APP for State submitted that the prosecution has examined all its material witness, whose testimony is corroborative, trustworthy and S.C. No.112/1/08 Page3/11 believable to prove the nexus between both the accused person for enticing the prosecutrix Poonam after offering Prasad by accused Tehsildar due to which Poonam lost her consciousness and accused Tehsildar forcibly taken her to his village for getting married with him and also got registered his marriage with prosecutrix Poonam who become pregnant from him. Prosecutrix Poonam used to live in the house and perform the household work. Testimony of witnesses are inspired confidence. The defence witness examined by accused is an interested witness , who is close friend of accused Dharampal. In these circumstances accused persons are liable to be convicted in accordance with law.
Per contra Ld. Counsel for accused persons submitted that prosecution failed to prove its case against the accused persons beyond all reasonable doubt. The prosecutrix who is aged about 20 years has left the house without informing to her parents at about 5.30 am and a missing report was lodged vide DD No. 9A dated 1.9.2006. Thereafter the complainant Subedar Singh reached at Delhi on 1.9.06 after receiving the missing information of his daughter from his son and he lodged a FIR on 6.9.2006 against the present accused persons. The accused Dharampal was arrested on 1.10.2006 and accused Tehsildar was arrested on 27.10.06 alongwith the complainant's daughter and they both were sent to Judicial custody.
It is further argued by Ld. Defence counsel that in order to prove the guilt u/s 34 IPC it is required that (i)common intention of both the accused and (ii) act done in furtherance of the common intention, however none of these two ingredients has been proved by prosecution witnesses as one of the material witness. PW3 Poonam Mishra during her examination in chief has never levelled a single allegation for active participation or his presence on the day of the alleged incident. In the entire examination in chief she stated the presence of her and the other co accused Tehsildar since her departure from the house till the date of her arrest. The only point which was stated is that the accused Dharampal was the brother in law and he knew everything about them the Tehsildar, however the averments are not sufficient enough to prove the quilt and it does not clarifies the acts played by the accrued or there was a common S.C. No.112/1/08 Page4/11 intention to commit offence of active participation was done in furtherance of the common intention. It only suggest that accused was known to the love affairs about them as he was known to the accused Tehsildar Thakur as well as the complainant.
It is further contended by Ld. Defence counsel that PW12, Neelam elder sister of Poonam has even not uttered single allegation against the accused Dharampal that he either came on 31.8.2006 at her house meaning thereby there was no common intention between the accused persons for committing the alleged offence. Further PW2 Surender Mishra son of the complainant in his missing report on in his examination in chief has assigned any role of the accused in committing of offence nor has raised any suspicion against them. Further there was no common intention. The accused's presence would be narrated either by PW3 or the record of marriage of the Tehsildar and Poonam as proved by PW13 wherein the presence either as witness or otherwise has not been recorded . The accused Dharampal. Further, PW3 Poonam has never stated that accused Tehsildar has made any pressure or any type of influence upon her to get married with him. She also stated that she was pregnant with the accused Tehsildar and PW1 Subedar Mishra, PW2 Surender Mishra and PW4 Phoolwati are the interested witnesses and hence deposed against the accused persons. Hence both the accused persons are liable to be acquitted.
For the purpose of attracting the provision of section 366, the prosecution has to prove that the kidnapping or abduction of a woman with the requisite intend, the intend must be to compel her to marry any person against her will or to force or seduce her to illicit intercourse. The proof of such intention is vital for the purpose of section 366 IPC. In contrast, if a blind girl by misleading her, taken to a place which was not her destination and subjected to sexual intercourse, the ingredients of section 366 are satisfied. If the girls is below 18 years leave her house of her own, the accused would be guilty if he used some inducement or compulsion. The section 366 IPC is satisfied if the ultimate object to seduction of marriage is given by the accused.
Intention' is a matter of inference from the circumstances of the case and the subsequent conduct of the accused after the abduction has S.C. No.112/1/08 Page5/11 taken place. Ordinarily it is not possible for the prosecution to establish the 'intention' except by proving the conduct of the accused. Human nature being what it is, whenever one finds a young man abducting a girl of marriageable age, the first and natural presumption must be that he had abducted her with the intention of having sexual intercourse with her either forcibly or with her consent after seduction or after marrying her. If he has any intention other than that which is suggested by the natural circumstances of the case, the burden lies upon him under section 105, Indian Evidence Act to prove that intention. This view is also taken in Haidar Shah AIR 1930 Lah 52.
In case of defective investigation, the court has to be circumspect in evaluating the evidence but it would not be correct to acquit the accused solely on account of defect in investigation. To do so would tantamount to playing into the hands of the Investigation Officer even if the investigation is designedly defective. This view is taken in State Vs Gurmit Singh AIR 1996 SC 1393.
It has to be borne in mind that the approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity, courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.
In order to constitute offence of 'abduction' a person must be carried off illegally by force or deception, that is 'to compel a person by force or deceitful means to induce to go from one place to another'. It is not necessary to show that after the first act of abduction or kidnapping S.C. No.112/1/08 Page6/11 of the girl there was another act of seduction of the girl to illicit intercourse where from the proximity of events the court is satisfied that the effect of the inducement which was the cause of abduction continued till the time of illicit intercourse. The section 366 requires : -
(1) Kidnapping or abducting any woman. (2) Such kidnapping or abducting must be :-
(a) 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.
(b) 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.
The second part of the section requires two things :- (1) By criminal intimidation or abuse of authority or by compulsion inducing any woman to go from any place. (2) Such going must be with intent that she may be, or with knowledge that it is likely that she will be forced or seduced to illicit intercourse, with some person.
Every act done "against the will" of a person is done "without his consent" but an act done "without the consent" or a person is not necessarily "against her will", which expression imports that the act is done in spite of the opposition of the person to the doing of it. The provision of section 90 are not to be applied to this section. The intent must be proved by evidence in each case. The consent on the part of a woman as a defence to an allegation of seduction requires voluntary participation, not only after the exercise of intelligence based on the knowledge, significance and moral quality of the act but after having freely exercised a choice between resistance and assent. Submission of her body under the influence of fear or terror is no consent.
Seduction is a comprehensive expression and does not exclude the possibility of deceitful means being used in order that seduction may be practiced with effect. The words 'illicitintercourse'means merely sexual intercourse between a man and a woman who are not husband and wife.
S.C. No.112/1/08 Page7/11It is not confined to sexual intercourse by a man with a married woman but includes such intercourse between two unmarried persons. If the intention to kidnap a girl in order to seduce her to illicit intercourse is present, the fact that the accused had illicit intercourse with the girl before she was kidnapped is wholly immaterial. Similar view has been observed in case titled as Prem Narain AIR 1929 All 82 (1929) 30 Cri LJ 218 (All).
In the present case, PW Poonam Mishra who is victim in the hands of Tehsildar Thakur has stated that "she know the accused Tehsildar for the last ten to twelve years. He was residing behind their street. He used to her hose for singing bhajan. She is tenth class pass. She was also inclined to Puja Path and Bhajans. On 31.8.06 at about 5 am accused Tehsildar had come to her residence, he was present in her house at that time. All the family members had gone to the house of her maternal uncle. She was alone in the house. Accused Tehsildar rang door bell and she went down stairs. Accused Tehsilar gave her Parshad which she eat. After eating Parshad, she lost consciousness. She regained consciousness inter medantly. She regained consciousness on 27.10.06 when she was brought to Delhi by the police with her parents. Since she was not conscious so she cannot tell as to what happened to her from 31.8.2006 to 27.10.06. Accused Tehsildar had taken her to his village to forcibly get married to her. Perhaps he had taken her to the court, where he had given her some medicine. In the court accused Tehsildar got marriage registered. She know nothing what happened after marriage as most of the time she remained unconscious on account of some medicine being administered to her. When she reached Delhi she came to know that she was pregnant. After reaching Delhi she was produced in the court and and was sent to Nari Niketan, she was got medically examined by the police from a hospital in Delhi. Another accused is brother in law of Tehsildar who knew everything about her and Tehsildar."
In cross examination PW Poonam has denied that she did not perform any puja or bhajan kirtan with the accused Tehsildar to earn money. She did not write Ramayan in association with accused Tehsildar. She further denied that she given her false age being 18 years and have S.C. No.112/1/08 Page8/11 been tutored by her family members to depose in the court. She also denied that she is deposing falsely and had accompanied accused Tehsildar on her own. It is also denied that she married the accused Tehsildar consciously and voluntarily. She also denied that she had filed an applicant in the court of CJM Baharich against the threats by her family members. She was not in her sense when she made statement before Ld. M.M. Smt. Phoolwati , mother of the prosecutrix Poonam was examined as PW4 who while corroborating the deposition of PW Poonam has also stated that accused Tehsildar Thakur is know to her since last ten to twelve years because he used to perform puja etc. She also perform puja at h er home. On 1.9.2006, she and my husband had gone to their native village at Distt. Gonda, U.P, she came back to Delhi she found her daughter Poonam not at home. She learnt that she was taken away by Tehsildar Thakur.
The fact of missing of Poonam is also being corroborated by PW 1 Subedar Mishra who has lodged the missing report on 6.9.2006 vide Ex. PW1/A and deposed that his daughter Poonam was missing from house on 31.9.2006 at 5.30 am On 1.9.06 he alongwith the police party set out to search Poonam and reached village Tarab Ganj, where they were told that accused Dharampal h ad gone to Gangroli. They then proceeded to village Gangroli, but none was found there. The police had arrested accused Dharampal. He met accused Dharampal two three days after missing of his daughter at village Gangroli with police party.. Then they proceeded to village Gangroli but none was found there. They had also gone to village Tarabganj with police party where accused Tehsildar was arrested.
PW2 Surender Mishra is the brother of the prosecutrix also corroborated the missing report of Poonam dated 1.9.06 vide Ex. PW2/A and they came to know that accused Tehsildar was in the native village. In the deposition made by prosecution witnesses none of the witness has stated that accused Dharampal and Tehsildar had any intention either at the time when the victim Poonam was taken from her house on 31.8.06 or when they were in the village Tarabganj or Gangroli. There is no evidence on record that accused Dharampal also joined in the marriage ceremony S.C. No.112/1/08 Page9/11 of the Poonam with accused Tehsildar. PW Poonam in her statement before the court u/s 161 Cr.P.C has not made any specific bald allegation against the accused Dharampal that he had being helping to the accused Tehsildar or enticing her or compelling her to marry for illicit intercourse. There is no medical record whatsoever being placed to show that accused persons have given any sedusive substance in the prashad by consuming it the victim Poonam lost her consciousness. There are material on record which has suggest that victim was not a willing party. The story of abduction against the accused Tehsildar is seems to be probable because soon after the missing of the prosecutrix suspicion was made upon the accused Tehsildar since he has been used to visit her house for the last ten twelve yeas for performing bhajan and pooja It is also probable that she after taking some prasad has lost her consciousness. After taking such a substance she cannot resisted to protect herself. No doubt prosecutrix has attained the age of 20 years she is also being pregnant from the accused as kept remained with accused few months and regularly having made illicit relationship with her. When the charge u/s 366 IPC for kidnapping of girl for seducing her for sexual intercourse then development of body organ is playing important factor particularly when there is evidence the the victim Poonam is pregnant from the accused Tehsildar. In such circumstance it cannot be said that accused has not made any illicit relationship with her. The factum of marriage is also being proved by marriage certificate and consummation of the marriage. There are ample material showing that accused Tehsildar on seducing the victim Poonam for compelling her to marry and create illicit relationship with her. There was no occasion for the victim to voluntarily went with the accused when on the date of occurrence there was allurement by the accused Tehsildar and victim Poonam was seduced fro the purpose of marriage and having illicit intercourse. The question of seducement by accused to take the victim from her lawful guardianship does not arise since the victim have been seduced after giving some adulterated prasad and alleged offence has been committed.
In view of the aforesaid facts and circumstances and from the evidence and material placed on record I come to the conclusion that the prosecution has been succeeded to prove its case against the the accused S.C. No.112/1/08 Page10/11 Tehsildar beyond reasonable doubt for offence punishable u/s 366 IPC as testimony of the prosecution witnesses are believable trustworthy and corroborated. However, there is no material evidence against the accused Dharampal Thakur to brought home the guilt against him within the ingredients of section 366 IPC. Therefore, accused Tehsildar Thakur S/o Ram Payre is convicted for offence punishable u/s 366 IPC and accused Dharampal is acquitted for the charges levelled against him.
ANNOUNCED IN THE OPEN COURT TODAY ON 09.04.2010 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI S.C. No.112/1/08 Page11/11