Delhi District Court
State vs Mangal on 17 May, 2010
1
IN THE COURT OF DR. SUDHIR KUMAR JAIN: ASJ-01 (OUTER),
ROHINI : DELHI
Sessions Case No. 10/2007
FIR no.815/05
PS: Rohini
U/s: 363/366/376 IPC
State
Versus
Mangal,
S/o Hari Parshad,
R/o Village Garhi,
PS Malhera, District Chhatarpur,
Madhya Pradesh. ... Accused
Date of Institution: 7.2.2007
Date of Decision : 17.5.2010
JUDGMENT
Mohan was residing in a jhuggi situated near Primary School, Mangolpur Kalan along with his children and wife in the year 2005. 'G' was eldest daughter of Mohan and stated to be aged about 13 ½ years in 2005. 'G' was working as a labourer at a construction site situated at Naharpur, Sector-3, Rohini. Mangal was working as a mason at the said construction site. Mohan on 1.6.2005 had gone to ply rickshaw. Mangal on that day, came to the house of 'G' and requested her to accompany him for roaming in Delhi. Mangal had taken 'G' at Metro Vihar, Holambi FIR no.815/05 PS Rohini Page No.1 (15) 2 Kalan. 'G' during evening hours requested Mangal to drop at her residence but Mangal insisted 'G' to remain at his house at Metro Vihar during night. Mangal promised 'G' to drop at her residence in the morning of the next day. During night, Mangal committed forcible sexual intercourse with 'G'. Mangal confine 'G' at Metro Vihar for 2-3 months and during said period committed sexual intercourse with 'G' forcibly.
2. Mohan on 1.6.2005 came back to his house at 8 pm and found the 'G' was missing. Mohan lodged a missing report at the Police Station. Mohan on 18.8.2005 again visited at PS Rohini where ASI Mahavir recorded his statement and on the basis of statement of Mohan, FIR bearing no.815/05 was recorded. Mangal and 'G' could not be traced. ASI Mahavir on 9.9.2005 received a secret information regarding the staying of Mangal along with 'G' at Metro Vihar, Holambi Kalan. 'G' (hereinafter referred to as " prosecutrix") was recovered from the house bearing no.B-320, Gali No.1, K-Block, Metro Vihar, Holambi Kalan. Mangal (hereinafter referred to as "accused") was arrested. The accused and prosecutrix were medically examined. Exhibits were collected. Statement of prosecutrix u/s 164 Cr.P.C. was recorded. Exhibits were sent to FSL. ASI Mahavir Singh (hereinafter referred to as " Investigating Officer") after completion of investigation, charge sheeted the accused for the offence punishable u/s 363/366/376 IPC. The charge sheet was filed before the court of concerned Metropolitan Magistrate.
3. The accused was supplied with the copies of charge sheet along FIR no.815/05 PS Rohini Page No.2 (15) 3 with annexed documents in compliance of Section 207 Cr.P.C. Vide order dated 2.2.2007, the case was committed to the court of Sessions and thereafter assigned to this court for disposal in accordance with law.
4. The charge for the offence punishable u/s 363/366/376 IPC was framed vide order dated 2.3.2007. The accused pleaded not guilty and claimed trial.
5. The prosecution examined ASI Manju Bala as PW-1; W/ ASI Praveen Bala as PW-2; Ct. Rajender Singh as PW-3; Ct. Om Parkash as PW-4; prosecutrix as PW-4; Mohan as PW-6; Inspector Sandeep Gupta as PW-7; HC Jagbir Singh as PW-8; ASI Mahavir as PW-9; Dr. Raj Mohan Trivedi as PW-10; Dr. Neeraj Sharma as PW-11; Dr. P. Kumar as PW-12; Dr. Deepti Bhalla as PW-13; Dr. Rajiv Ranjan as PW-14; Shri Kanwaljeet Arora as PW-15.
PW-1 ASI Manju Bala recorded the FIR bearing no.815/05 on the basis of rukka produced by ASI Mahavir Singh. PW-2 W/ ASI Praveen Bala was the witness at the time of recovery of prosecutrix from Metro Vihar and also taken the prosecutrix to Sanjay Gandhi Memorial Hospital for medical examination. PW-3 Ct. Rajender Singh deposited the exhibits at FSL, Kolkotta vide RC no.168/21. PW-4 Ct. Om Parkash participated in the investigation along with IO ASI Mahavir Singh at the time of recovery of prosecutrix and arrest of accused. PW-5 is the prosecutrix. PW-6 Mohan is the complainant and father of the prosecutrix. PW-7 Inspector Sandeep Gupta sent the case property to FSL, Kolkotta through FIR no.815/05 PS Rohini Page No.3 (15) 4 PW-3 Ct. Rajender. PW-8 HC Jagbir Singh was entrusted with the case property being MHC(M). PW-9 ASI Mahavir being the Investigating Officer conducted the investigation. PW-10 Dr. Raj Mohan Trivedi, PW11 Dr. Neeraj Sharma, PW-12 Dr. P. Kumar, PW-13 Dr. Deepti Bhalla and PW-14 Dr. Rajiv Ranjan either medically examined the prosecutrix and accused or analyzed the exhibits. PW-15 Shri Kanwaljeet Arora, then Metropolitan Magistrate recorded the statement of prosecutrix u/s 164 Cr.P.C.
6. The prosecution proved the copy of FIR bearing no.815/05 as ExPW1/A; endorsement on rukka as ExPW 1/B; seizure memo of exhibits handed over to the concerned doctor after medical examination of prosecutrix as ExPW 2/A; arrest and personal search memos of accused as ExPW 4/A and ExPW 4/B; seizure memo of exhibits handed over by the concerned doctor after medical examination of accused as ExPW 4/C; disclosure statement of accused as ExPW 4/D; recovery memo of prosecutrix as ExPW 4/E; statement of prosecutrix u/s 164 Cr.P.C. as ExPW 5/A; complaint made by PW-6 Mohan as ExPW 6/A; relevant entries in register no.19 and copy of Road Certificate bearing no.168/21 as ExPW 8/A and ExPW 8/B; rukka as ExPW 9/A; application for recording of statement u/s 164 Cr.P.C. of prosecutrix as ExPW 9/B; application for obtaining the copy of statement u/s 164 Cr.P.C. as ExPW 9/C; MLC of prosecutrix as ExPW 10/A; MLC of accused as ExPW 10/B; FSL report as ExPW 12/A; Bone X-Ray report of the prosecutrix as ExPW 14/A;
FIR no.815/05 PS Rohini Page No.4 (15) 5 certificate given by PW-15 Shri Kanwaljeet Arora, then Metropolitan Magistrate of statement u/s 164 Cr.P.C. as ExPW 15/A. The prosecution evidence was closed vide order dated 3.4.2010.
7. The statement of accused was recorded u/s 313 Cr.P.C. wherein accused pleaded innocence and denied the incriminating evidence against him. The accused stated that PW-6 Mohan, father of the prosecutrix wanted to marry prosecutrix with him; he got married with the prosecutrix with the consent of Mohan; later on, Mohan demanded money from him and on his refusal, he was implicated in the case. The accused preferred to lead defence evidence. The accused on 17.5.2010 stated that he does not want to lead defence evidence. the defence evidence was closed vide order dated 17.5.2010.
8. Shri Atul Kumar Gupta, CPP for the State and Shri S.K. Tyagi , advocate for accused heard. Record perused.
9. In the adversarial system, every person accused of an offence is always presumed to be innocent so that burden lies upon the prosecution to establish beyond reasonable doubt that all the ingredients of the offence with which the accused is charged are made out. The accused enjoys the right to silence and cannot be compelled to reply. In a criminal trial the charge against the accused must be proved beyond all reasonable doubts and the requirement of proof does not lie in the realms of surmises and conjectures.
10. Section 361 IPC deals with keeping from lawful guardianship. It FIR no.815/05 PS Rohini Page No.5 (15) 6 reads as under :
361. Kidnapping from lawful guardianship. 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 such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation --
Exception --
The gist of offence of kidnapping is taking or enticing away of a minor within the specified age limits or of a person of unsound mind out of the keeping of a lawful guardian. The essential ingredients of the offence under S.361 IPC are as follows :
i) The accused took or enticed away a minor or a person of unsound mind;
ii) Such minor, if male, must be under 16 years of age and, if female, under 18 years of age;
iii)The act must be one of taking or enticing out of the keeping of the lawful guardian of such minor or person of unsound mind;
iv)The act of taking or enticing away must be done without consent of the lawful guardian.
11. Section 366 IPC deals with kidnapping, abducting or inducing woman to compel her marriage, etc. It reads as under :--
366. Kidnapping, abducting or inducing woman to compel her marriage etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or FIR no.815/05 PS Rohini Page No.6 (15) 7 knowing it to be likely 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 punished with imprisonment of either description of a term which may extend to ten years, and shall also be liable to fine.
To bring home the guilt of the accused under S.366 IPC, it is necessary for the prosecution to prove that the accused induced the prosecutrix or compelled her by force to go from any place; that such inducement was by deceitful means; that such kidnapping or abduction took place with the intent that the prosecutrix may be seduced to illicit intercourse and/or that the accused knew it to be likely that the prosecutrix may be seduced to illicit intercourse as a result of her abduction or kidnapping. The essential ingredients of the offence under S.366 IPC are as follows:
i) The accused kidnapped or abducted a woman;
ii) The accused intended or knew it likely that--
(a)the woman abducted or kidnapped would be compelled to marry any person against her own will, or
(b)she would be forced or seduced to illicit intercourse.
12. The offence of rape occurs in Chapter XVI of IPC. It is an offence affecting the human body. In that Chapter, there is a separate heading for "Sexual offences", which encompass Sections 375, 376, 376-
FIR no.815/05 PS Rohini Page No.7 (15) 8 A, 376-B, 376-C and 376-D, IPC. "Rape" is defined in Section 375, IPC Section 375 and 376 IPC have been substantially changed by Criminal Law (Amendment) Act, 1983, and several new sections were introduced by the new Act, i.e 376A, 376-B, 376-C and 376-D. The fast sweeping changes introduced reflect the legislative intent to curb with iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is 'the ravishment of a women, without her consent, by force, fear and fraud', or as 'the carnal knowledge of a woman by force against her will'.
13. Section 375 IPC provides that a man is said to commit rape who has sexual intercourse with a woman under circumstances as described in section itself. Section 375 IPC reads as under :--
375.Rape -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 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 FIR no.815/05 PS Rohini Page No.8 (15) 9 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 is 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.
Section 376 IPC prescribed punishment for rape.
OFFENCE U/S 363/366 IPC
14. In order to establish offence u/s 363/366 IPC against the accused, the prosecution is required to prove that at that time of incident, the prosecutrix was under the age of 18 years and accused has taken or enticed away a minor out of the lawful guardianship. It is further required for the prosecution to prove that taking or enticing away must be done without the consent of the lawful guardian. The prosecution to prove its case u/s 363/366 IPC examined the complainant Mohan as PW-6 and prosecutrix FIR no.815/05 PS Rohini Page No.9 (15) 10 as PW-5. PW-6 Mohan deposed that in the year 2005, he was residing in a jhuggi situated in Primary School, Mangolpur Kalan along with his wife and children including prosecutrix who was aged about 13 ½ years at that time. It is further deposed that the prosecutrix was working as a labourer at a construction site at Naharpur, Rohini and the accused was also working as a mason. As per the testimony of PW-6 Mohan when he came back on 1.6.2005 at 8 pm to his house then he found prosecutrix was missing and he lodged a missing report at the Police Station. PW-6 Mohan made a formal complaint ExPW 6/A after two months from the date of incident. PW-6 Mohan came to know that his daughter i.e prosecutrix was staying at Metro Vihar, Holambi Kalan. The prosecutrix was recovered from Metro Vihar, Holambi Kalan vide recovery memo ExPW 4/E. The accused was arrested. The testimony of PW-6 Mohan reflects that PW-5 prosecutrix was not found present at his house on 1.6.2005 and at that time, as per the PW-6 Mohan she was aged about 13½ years and thereafter PW-5 prosecutrix was recovered from Metro Vihar, Holambi Kalan. The prosecutrix was also examined as PW-5. PW-5 prosecutrix deposed that in the year 2005, she was working as a labour at construction site situated at Sector-3 Naharpur, Rohini where the accused was also working as a Mason. As per the testimony of PW-5 prosecutrix on 1.6.2005, the accused came to her house and requested her for roaming in Delhi and thereafter at the request of accused PW-5 prosecutrix accompanied him and they went to Metro Vihar, Holambi Kalan. PW-5 FIR no.815/05 PS Rohini Page No.10 (15) 11 prosecutrix further deposed that in the evening, she requested the accused to drop her back to her residence but accused has promised to drop prosecutrix next day in the morning hours. The testimony of PW-5 prosecutrix reflects that prosecutrix had gone to Metro Vihar, Holambi Kalan along with the accused when the accused has asked her for roaming in Delhi. As per the prosecutrix, the incident pertains to 1.6.2005.
15. CPP argued that the testimonies of PW-5 prosecutrix and PW-6 Mohan reflect that at the time of incident i.e on 1.6.2005, the PW-5 prosecutrix was less than 18 years and the accused has taken away her from her residence to Metro Vihar, Holambi Kalan without the consent of PW-6 Mohan. The defence counsel argued that the prosecutrix herself had gone along with the accused.
16. As per PW-6 Mohan, prosecutrix was aged about 13 ½ years at the time of alleged incident. However, PW-6 Mohan admitted during the cross examination that there was no birth certificate pertaining to the prosecutrix. PW-5 prosecutrix has not studied in any school. PW-6 Mohan also denied the suggestion that the prosecutrix was aged about 16 years in the year 2005. The ossification test of the prosecutrix was conducted during the investigation and the report is ExPW 14/A. As per the testimony of PW-14 Dr. Rajiv Ranjan who deposed that the bone age of the PW-5 prosecutrix was more than 14 years and less than 16 years on 17.9.2005. Except the report ExPW 14/A, there is no any other evidence on record to prove the age of prosecutrix. The report ExPW 14/A is based FIR no.815/05 PS Rohini Page No.11 (15) 12 upon estimation and is not corroborated by any substantive piece of evidence. The prosecution has failed to prove the exact age of the prosecutrix. However from the evidence placed on record, it is apparent that the prosecutrix was less than 18 years at the time of alleged incident.
17. The point which needs consideration whether the prosecution has proved beyond reasonable doubt the offence u/s 363/366 IPC. The statement ExPW 5/A of prosecutrix was recorded u/s 164 Cr.P.C. As per ExPW 5/A, prosecutrix had gone with the accused out of her own free will and got married with the accused. Although, the prosecutrix in cross examination deposed that she had given a statement before PW-15 Shri Kawaljeet Arora, then Metropolitan Magistrate under the threat and pressure extended by the parents of the accused. The perusal of proceedings u/s 164 Cr.P.C. recorded by PW-15 Shri Kawaljeet Arora reflects that the statement was recorded after ascertaining the voluntariness of PW-5 prosecutrix by PW-15 Shri Kawaljeet Arora, then Metropolitan Magistrate.
18. The cross examination of PW-5 prosecutrix reflects that on 1.6.2005 the accused came to her house and thereafter she herself accompanied the accused Mangal on his request. Prosecutrix remained at Metro Vihar, Holambi Kalan in the night out of her own free will and without any resistance. It is apparent from the testimony of PW-5 prosecutrix that she herself abandoned the guardianship of her parents without any force being used by the accused. The PW-5 prosecutrix FIR no.815/05 PS Rohini Page No.12 (15) 13 herself had gone with the accused on 1.6.2005. The prosecutrix at that time was aged about 16 years and was matured enough to understand the consequences of the act of leaving her house on 1.6.2005 along with the accused. There is nothing on record which can establish on record that the accused had allured the prosecutrix to go along with him out of the custody of PW-6 Mohan. The prosecution has failed to prove that the accused has taken away or enticed away out of the guardianship of PW-6 Mohan on 1.6.2005. The reliance may be placed on Amar Pal Yadav & Ors. V State, Crl. M.C. 337/2009; Shyam & Another V State of Maharashtra, 1995 Criminal Law Journal 3974; State of Karnataka V Sureshbabu, 1994 Crl.L.J. 1216 (1); Mahabir V State, 55 (1994) DLT 428; Piara Singh V State of Punjab, 1998 (3) Crimes 570; Bala Saheb V State of Maharashtra, 1994 Criminal Law Journal 3044.
19. In view of above discussion, the offence u/s 363/366 IPC is not proved against the accused.
OFFENCE U/S 376 IPC
20. The prosecution to prove the offence u/s 376 IPC against the accused relied upon the testimony of PW-5 prosecutrix. PW-5 prosecutrix deposed that on 1.6.2005, she had gone along with the accused at Metro Vihar, Holambi Kalan where the accused was residing and in the night, on the request of accused, she stayed in his house. PW-5 prosecutrix deposed that during the night hours, accused forcibly committed sexual intercourse with her. PW-5 prosecutrix further deposed that accused had confined her FIR no.815/05 PS Rohini Page No.13 (15) 14 at Metro Vihar for 2-3 months and during the said period, she was subjected to forcible sexual intercourse. The PW-5 prosecutrix was recovered on 9.9.2005 vide recovery memo ExPW 4/E. The testimony of PW-5 prosecutrix reflects that she was subjected to forcible sexual intercourse by the accused during the period w.e.f. 1.6.2005 to 9.9.2005.
21. The CPP argued that the testimony of PW-5 prosecutrix is sufficient to prove the guilt of the accused for the offence u/s 376 IPC and can be safely relied upon. The defence counsel argued that the testimony of PW5 prosecutrix is not sufficient to prove the offence u/s 376 IPC against the accused and referred the statement ExPW 5/A u/s 164 Cr.P.C. The defence counsel also referred the gynecological examination of the prosecutrix.
22. As discussed herein above, the prosecution has failed to prove on record that the prosecutrix was less than 16 years on the date of incident. However, it is proved that the PW-5 prosecutrix was less than 18 years on the date of incident. The testimony of PW-5 prosecutrix reflects that she had gone to the residence of the accused on 1.6.2005 situated at Metro Vihar, Holambi Kalan due to her own free will. The PW-5 prosecutrix remained with the accused for about 2-3 months. As per the MLC ExPW 10/A no sign of external injuries were found, hymen was also found ruptured and the per vagina examination was found normal. As per the PW-5 prosecutrix she was subjected to forcible sexual intercourse for a period of more than three months but even then no external injury was FIR no.815/05 PS Rohini Page No.14 (15) 15 found on the person of PW-5 prosecutrix and the per vaginal examination was found normal. The gynecological opinion as given on MLC ExPW 10/A is not reflected that PW-5 prosecutrix was subjected to forcible sexual intercourse. PW-5 prosecutrix in statement ExPW 5/A recorded u/s 164 Cr.P.C. also stated that she had gone with the accused and out of her own free will and thereafter performed marriage. The statement u/s 164 Cr.P.C. was recorded by the concerned Metropolitan Magistrate after being satisfying the voluntariness of the prosecutrix. There is absolutely no evidence on record which can prove that the PW-5 prosecutrix was subjected to forcible sexual intercourse by the accused. It is apparent form the record that she established sexual intercourse with the accused out of her own free will.
23. In view of above discussion, no offence u/s 376 IPC is made out against the accused.
24. The accused is acquitted for the offences u/s 363/366/376 IPC. Bail bond cancelled. Surety discharged. Case property, if any, is confiscated to the State. File be consigned to the record room.
Announced in open court (Dr.Sudhir Kumar Jain) on 17.5.2010 ASJ-01 (Outer) Rohini, Delhi. FIR no.815/05 PS Rohini Page No.15 (15)