Delhi District Court
State vs Salim @ Pawan S/O. Late Sh. Bhajan Lal on 17 October, 2014
IN THE COURT OF SANJAY GARG : ADDITIONAL SESSIONS
JUDGE01 (EAST) :KARKARDOOMA COURTS : DELHI
SC No. 01/13
FIR No. 346/12
PS Pandav Nagar
Under Section : 363/376 IPC
State Versus Salim @ Pawan S/o. Late Sh. Bhajan Lal
R/o. Jhuggi No. 335, Mahatma Gandhi Camp,
Shashi Garden, Delhi.
Date of Institution of Case : 03.01.13
Date on which Judgment Reserved : 13.10.14
Date on which Judgment Delivered : 17.10.14
J U D G M E N T :
1. The brief facts of the case are that DD No. 35A on 15.8.12 was lodged in the PS regarding this case. HC Dharmender Singh (PW5) alongwith Ct. Manoj reached at the spot i.e. Jhuggi No. A/120, Shastri Mohalla, Shashi Garden. There complainant Smt. Shahnaz (PW1) met him and complained regarding missing of her daughter. PW5 recorded statement of PW1, wherein she mentioned that at 8 p.m she had gone to Sabzi Mandi to buy chicken. At 8.20 p.m when she returned back she found her daughter (who is mentioned hereinafter as prosecutrix) aged 14 years missing. She searched for the prosecutrix in the surroundings but could not find her. Smt. Razia (PW2) told PW1 that her husband i.e. accused, is also missing from his house. PW1 showed suspicion on accused having taken away her daughter after giving her enticement.
2. On this complaint PW5 prepared rukka and gave it to Ct. Manoj who took the same to PS for registration of the FIR. After registration of FIR SI Parveen reached at the spot alongwith Ct. Manoj FIR No. 346/12 page 1 of page 10 and took away further investigation. On 3rd or 4th September'12 further investigation of this case was assigned to SI Asha (PW9). On the intervening night of 3/4.9.12 PW9 received information from SI Parveen that prosecutrix has been recovered. PW9 reached PS and there found prosecutrix present with her parents. She took prosecutrix to LBS Hospital and there prosecutrix refused to get her internal examination done. Thereafter prosecutrix was produced before Ld. M.M and her statement u/s. 164 CrPC was got recorded. On 5.9.12 prosecutrix was produced in GTB Hospital and she agreed to get her medical examination done. After medical examination doctor handed over some exhibits to IO PW9 and same were taken into possession by her. On 4.6.12 accused was produced in the Court by SI Parveen and he was taken on two days P/C by IO PW9. Medical examination of accused was got done and exhibits given after medical examination were seized. During investigation IO had sent the exhibits to FSL and collected the documents regarding age of prosecutrix. Thereafter IO filed chargesheet against the accused u/s. 363/376 IPC.
3. Charge u/s. 363/376 IPC was given to accused, to which he pleaded not guilty and claimed trial.
4. To prove its case prosecution has examined eleven witnesses. PW1 Smt. Shahnaz is the mother of prosecutrix and she proved her complaint Ex.PW1/A. PW2 Smt. Razia is the wife of the accused and she has not supported the prosecution case. PW3 Sh. Abdul Majid is the father of the prosecutrix. PW4 Amar Singh is the cousin brother of accused. PW5 HC Dharmender Singh is the first IO, who had reached at the spot and had prepared rukka and proved rukka Ex.PW5/A. PW6 Sh. Mukul Saxena, Sub Registrar, MCD, Shahdra South Zone proved birth register regarding prosecutrix as Ex.PW6/A. FIR No. 346/12 page 2 of page 10 PW7 is the prosecutrix, she admitted her signatures on her statement recorded u/s. 164 CrPC i.e. Ex.PW7/A. PW8 ASI Veerpal Singh was duty officer, he proved FIR Ex.PW8/A and endorsement on rukka Ex.PW8/B. PW9 WSI Asha is the main IO. She proved seizure memo Ex.PW9/A vide which exhibits given by doctor after medical examination of prosecutrix were seized, seizure memo Ex.PW9/B vide which exhibits given by doctor after medical examination of accused were seized and seizure memo Ex.PW9/C vide which photocopy of the birth certificate of prosecutrix was seized. PW10 Sh. Nadeem is the relative of the prosecutrix and a formal witness. PW11 Sh. Devinder Singh Bhandari, Sub Registrar, Shahdra South produced register regarding birth of prosecutrix and certificate issued by their office as Ex.PW11/A and Ex.PW11/B.
5. Accused admitted his MLCs as Ex.PA1 to Ex.PA3, MLC of prosecutrix as Ex.PA4 to Ex.PA6, his arrest memo and personal search memo as Ex.PA7 and PA8. His statement u/s. 294 CrPC was recorded to this effect.
6. On the basis of the incriminating evidence against the accused , his statement was recorded u/s. 313 CrPC wherein he denied the entire prosecution evidence against him and took the defence that he is quite innocent and have been falsely implicated. Victim wanted to marry with him. She was more than 18 years of age at that time. He refused to marry her stating that he is already married and have kids. She threatened to falsely implicate him in a case. She forced him to go with her. Thereafter her family called them at Neel Giri Restaurant and falsely implicated in this case. He opted to lead DE and examined DW1 Rubina.
7. Heard arguments of Sh. Rajat Kalra, Ld. Addl. PP for State FIR No. 346/12 page 3 of page 10 and Sh. Irfan Akhtar, Ld. Defence counsel for accused. Perused the case file.
8. The Ld. APP submitted that from the school and municipal record it stands established that prosecutrix was minor. It is argued that prosecutrix made specific allegations that she was kidnapped by accused and sexually assaulted 67 times without her consent. It is stated that in MLC of prosecutrix Ex.PA5 hymen is found ruptured which supports statement of the prosecutrix. It is stated that prosecution has been able to prove its case beyond reasonable doubt.
9. Sh. Irfan Akhtar, Ld. counsel for the accused submitted that in her examinationinchief prosecutrix has specifically stated that she had asked accused to marry her and she willingly ran away with accused. It is submitted that prosecutrix has specifically stated that no physical relations were established between them and it is only during crossexamination by Ld. APP that she had admitted the suggestion of establishment of physical relations between them 67 times. It is stated that even in her statement u/s. 164 CrPC prosecutrix has not made allegations of having established physical relations with the accused. It is submitted that even FSL report is not supporting the prosecution.
10. Prosecutrix is the main witness. She deposed that in the year 2012 she was studying in 6th standard in Rajkiya Sarvodya Kanya Vidhyalya. Accused was running a shop of mobile repairs near their house. Once she had gone to the shop of accused to get the mobile phone of her father repaired. In this context she had visited his shop 34 times. Accused had given her his number asking her to call him to inquire about the mobile phone. Accused proposed her to do friendship with him and thereafter they started talking each other on FIR No. 346/12 page 4 of page 10 phone. She did not use to do household work and used to sit outside the house, due to this reason her father used to scold and beat her. She asked accused to marry her and at that time she was not aware that he is already married. On 15.8.12 she ran away with accused at her own will. They kept on roaming in Delhi. On being asked by her accused had given only his family background. They did not go out of Delhi. After 1516 days she reached at Neel Giri Restaurant, Shashi Garden to meet her Bhabhi. Her Bhabhi took her to their house and asked accused to wait there. During this period they stayed together in a rented room but no physical relations were established between them. At her house she met her father. Her Bhabhi told her father about presence of accused at Neel Giri Restaurant. Her father reached there and apprehended the accused and handed over him to the police. She was taken to LBS Hospital and her medical examination was done. She identified her signatures on her statement Ex.PW7/A recorded u/s. 164 CrPC by Ld. M.M Sh. Rakesh Kumar Rampuri.
11. Prosecutrix was crossexamined by Ld. APP after declaring her hostile. During crossexamination she admitted that on 15.8.12 accused asked her to go for outing and took her to the area of Shashi Garden Petrol Pump ; she had gone with accused at about 8 p.m for roaming and they had gone to Railway Station and from there accused took her to Aligarh ; when no place was found in Aligarh they returned to Delhi and accused kept her in Khora Colony at the house of his friend and in Nangloi at the house of his relative ; in the meantime she received information about the illness of her mother, she asked accused to leave her at her house but he refused and told her that she should live with him ; during said period accused established physical relations with her 67 times without her consent ; on 3.9.12 accused FIR No. 346/12 page 5 of page 10 took her to Neel Giri Restaurant ; there her parents and brotherinlaw Nadeem saw them and apprehended accused and took them to PS ; from 15.8.12 to 3.9.12 accused kept her with him and established physical relations with her 67 times. Accused also threatened her and due to this fear she did not depose correctly before Ld. M.M. During cross by accused she stated that on the last date of hearing she had deposed that accused had not formed physical relation with her as she was under threat given by accused ; accused had given threat to her before going to jail and because of that she could not give proper statement before Ld. M.M ; she had taken admission in first standard at Nagar Nigam Prathmik Vidhyalya, Patparganj and she does not know what was her age at that time.
12. Ex.PW7/A is the statement of prosecutrix recorded u/s. 164 CrPC. Here she has stated that on 15th August at 8 p.m she told accused that she will run away with him and they both went to Aligarh. There they stayed for 5 days at the house of his relative. For about 89 days they stayed with Bhabhi (sisterinlaw of accused) at Nangloi. Thereafter they started residing after taking a room in Delhi. Thereafter she met her parents, her mother and brother gave beatings to accused. On 3.9.12 police came and arrested accused. She did not marry with accused as they were not having money. She wanted to marry with accused and they both were in search of some work. She is aged 15 years and her father has mentioned her age as 14 years.
13. Ex.PA5 is the MLC of prosecutrix, the history mentioned in the MLC is as follows : "Sexual intercourse twice (20.8.12 & 2.9.12) with consent (with Salim). Fleeing from home with Salim on 15.8.12 at Aligarh, Nangloi. Patient returned home on 2.9.12. The FIR No. 346/12 page 6 of page 10 hymen is found ruptured".
14. PW1 Smt. Shahnaz and PW3 Abdul Majid are the parents of prosecutrix. As per them prosecutrix rang up on their mobile phone. They reached at Neel Giri Restaurant and from there accused was apprehended and their daughter i.e prosecutrix was recovered from his possession. Same is the statement made by prosecutrix. Even statement of IO PW9 is also same to this effect. Even accused in his statement u/s. 313 CrPC has admitted that prosecutrix wanted to marry with him, she was more than 18 years of age at that time. He refused to marry her stating that he is already married and has kids. She threatened to falsely implicate him in a case. She forced him to go with her. Thereafter her family called them at Neel Giri Restaurant and falsely implicated in this case.
15. In view of the evidence discussed in above paras, it stands established that prosecutrix was recovered on 4.9.12 from the company of the accused.
16. One of the main contention raised by Ld. defence counsel is that statement of prosecutrix is not inspiring confidence as she has changed her version during crossexamination by Ld. APP, as the same was recorded after a gap. Statement of prosecutrix is self contradictory. In her examinationinchief she has stated that she had asked the accused to marry her ; on 15.8.12 she ran away with accused at her own will ; no physical relations were established between them. It is during her crossexamination by Ld. APP she has stated that accused established physical relations with her 67 times without her consent and had asked her to go with him and then took her to Aligarh. Even in MLC Ex.PA5 it is mentioned that prosecutrix has run away with accused on 15.8.12.
FIR No. 346/12 page 7 of page 10
17. The essential ingredient of the offence of kidnapping as defined u/s. 361 IPC are "taking" or "enticing". The word " take" means to cause to, go to, escort , or to get into possession. What is required is that there must be proof of taking. The prosecution has to prove that the accused had played some active part in the girl leaving her lawful guardian's house and taking shelter in his house. The word "
take" implies want of wish and absence of desire of the person taken. The word " entice" involves an idea of inducement by exciting hope or desire in the other. One does not entice another unless the latter attempted to do a thing which she or he would not otherwise do. The act of prosecutrix while leaving her house at her own is not covered under either 'taking' or 'enticing'
18. To establish his defence, accused has examined Rubina as DW1. As per her, prosecutrix is known to her as she is residing in her neighbourhood. Prosecutrix had run away from her house about three months and she is not of good character as she often used to quarrel in her house. Accused is a married person and he has been continuously forced by the prosecutrix to marry with her otherwise he will be implicated in the false cases.Prosecutrix has again run away from her house with some boy and had married with him. During cross examination by Ld Addl.PP for the State, she has stated that the distance between her house and prosecutrix is of 56 houses.
19. In view of these circumstances , it stands established that prosecutrix at her own went with the accused on 15.08.12 and returned with him on 3.09.12 to Neel Giri Restaurant, from there they both were apprehended by her family members.
20. Age of the prosecutrix is another material consideration. PW6 Mukul Saxena Sub Registrar MCD has produced birth record of the FIR No. 346/12 page 8 of page 10 prosecutrix as Ex. PW6/A, as per which her date of birth is 15.10.98. PW3 Abdul Majid is the father of the prosecutrix and he has given her age as 14 years . PW1 Shahnaz in her complaint Ex.PW1/A has given her age as 14 years. Prosecutrix while deposing as PW7 has given her age as 16 years and in her statement recorded under Section 164 Cr. P.C i.e. Ex. PW7/A, she has mentioned that her age is 15 years. Ld. Counsel for accused has vehemently urged that prosecutrix was major and she was shown underage while admitting in the school, she and her family are giving her wrong age to falsely implicate accused. The record of MCD Ex.PW6/A is public record, maintained in routine course of business. I find no reason to disbelieve this record. Accordingly it stands established that prosecutrix was around 14 years of age at the time of this incident.
21. Regarding allegations of rape, Ld. Counsel for accused has rightly contended that prosecutrix has not specifically made any allegation of sexual intercourse done by accused with her and it was only during her cross examination by Ld. Addl.PP for the State, she has admitted that accused had raped her 67 times during the period they have stayed together. Ld. Addl.PP for the State submitted that from the statement of the prosecutrix, it is clear that she had stayed with accused from 15.08.12 to 03.09.12 and during this period sexual interaction must have happened between them either consensual or without her consent. It is submitted that since prosecutrix was less than 16 years of age, she was not legally competent to give consent for sexual intercourse, hence even consensual sexual intercourse amounts to rape.
22. Ex.PW7/A is the statement of the prosecutrix recorded under Section 164 Cr. P.C immediately after her recovery, here she has FIR No. 346/12 page 9 of page 10 nowhere alleged if accused has done sexual intercourse with her. While deposing as PW7 prosecutrix in her examination in chief has categorically stated that they stayed together in a rented room but no physical relations were established between them. It was only during cross examination of Ld. Addl. PP for the State, she admitted to have told the police that during this period accused established physical relations with her for 67 times without her consent. Even MLC Ex. PA5 talks about consensual intercourse between accused and prosecutrix on two occasions in history but statement made by prosecutrix before court is of paramount importance.
23. In view of the reasons discussed above, it is held that statement of prosecutrix is not inspiring confidence and the same is not found trustworthy. Accordingly it is held that prosecution has failed to prove its case beyond reasonable doubt against accused. Accordingly, accused is acquitted from the offence punishable under Section 363/376 IPC.
ANNOUNCED IN OPEN COURT ON 17.10.14 (SANJAY GARG) ADDL. SESSIONS JUDGE(EAST) 01 KARKARDOOMA COURTS :
DELHI FIR No. 346/12 page 10 of page 10