Delhi District Court
Sc No.2709 (State vs . Neeraj & Anr.) on 29 April, 2011
SC No.2709 (State Vs. Neeraj & Anr.)
IN THE COURT OF SH. DINESH KUMAR SHARMA
ADDL. SESSIONS JUDGE 02 (SOUTH) :
SAKET COURTS, NEW DELHI
SC No. 27/09
Unique Case ID No. 02403R0031082009
State Vs. 1. Neeraj
S/o Sh. Pirshotam
R/o J1, Gali No.8, H. No.502,
Sangam Vihar, New Delhi.
2. Bittoo
S/o Sh. Chhote Lal
R/o J1, H.No. 478/8,
Sangam Vihar, New Delhi.
FIR No. : 479/08
u/Ss : 363/366/376/34 IPC
PS : Mehrauli
Judgment announced on : 27.04.2011
Date of Order on Sentence : 27.04.2011
ORDER ON SENTENCE
Present : Ld. Addl. PP for State
Convicts produced from JC with Sh. Gaje Singh, Advocate
Heard on the point of sentence.
Page 1 of 4
SC No.2709 (State Vs. Neeraj & Anr.)
1.0 Convict Neeraj has been convicted for the offence u/Ss 366/376 IPC. Convict Bittoo has been convicted for the offence u/S 363/34 IPC. 2.0 Sh. Gaje Singh, Ld. counsel for the convicts has submitted that convict Neeraj had already remained in custody for more than 13 months. Accused has old parents and he is eldest amongst the children. Convict is sole bread earner of the family. Ld. counsel has submitted that keeping in view the age and other circumstances of the convict, he may be granted benefit of probation. In support of his contention, Ld. counsel cited State of Karnataka Vs. Muddappa, 1999 SCC (Cri.) 1046.
In respect of accused Bittoo, it has been submitted that he has remained in custody for around 1 ½ months. There is no other case pending against the convict. It has further been submitted that convict is a young boy of around 22 years of age and he is unmarried and therefore, a lenient view may be taken.
2.1 Per Contra, Ld. Addl. PP for the state has submitted that the offence proved against these convicts are very serious in nature. Convicts in furtherance of common intention kidnapped a minor girl of around 14 years of age while she was going to the school. Ld. Addl. PP submitted that it has also been proved on record that convict Neeraj had kidnapped the victim with an intention to marry her and induce or seduce her to have illicit intercourse and he also committed rape upon her. Ld. Addl. PP has submitted that in view of Page 2 of 4 SC No.2709 (State Vs. Neeraj & Anr.) the facts and circumstances, convicts be given harsh punishment. 3.0 I have heard the submissions of both the sides.
4.0 The sentencing in the Criminal Justice Delivery System is the most sensitive aspect. The court has to strike a balance between the interest of the society and the personal liberty of an individual. The society as a large looks upon the court for an appropriate punishment to the offenders. There are number of incidents where the minor girls are being kidnapped and then subjected to the sexual offences. Such kind of offences not only destroy the victim but also the entire family. It also sends a very wrong signal to the society at large. The court cannot be a mute spectator to such kind of incident and this court is of the considered opinion that in such like cases harsh punishment should be awarded. Thus, taking into account the entire facts and circumstances, I consider that convict Neeraj be awarded a sentence of 10 years and a fine of Rs.2,000/ in default SI for 3 months u/S.376 IPC. For the offence u/S.366 IPC, convict Neeraj is awarded sentence of 10 years and a fine of Rs.1,000 in default SI for 3 months.
Both the sentences shall run concurrently.
Benefit of section 428 Cr.P.C. be given to convict. 4.1 In respect of convict Bittoo, I consider that his role was much lighter. He seems to have committed an offence only with an idea of fulfilling Page 3 of 4 SC No.2709 (State Vs. Neeraj & Anr.) the friendly obligation. He shared the common intention only till the taking away the girl and not, thereafter. There is no criminal record of the convict. I consider that SI for 2 years and a fine of Rs.2,000/ in default SI for one month shall meet the ends of justice u/S.363 IPC.
Benefit of section 428 Cr.P.C. be given to the convict. 4.2 A copy of the judgment and order on sentence be given dasti to the convicts.
5.0 Convicts have also been apprised that they shall be at liberty to file an appeal against this judgment and sentence before the Hon'ble High Court of Delhi. They have also been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee 3437, lawyers Chamber Block, High Court of Delhi, New Delhi.
6.0 File be consigned to Record Room.
(Dinesh Kumar Sharma) ASJ02(South)/Saket Courts New Delhi / 29.04.2011 Page 4 of 4 SC No.2709 (State Vs. Neeraj & Anr.) IN THE COURT OF SH. DINESH KUMAR SHARMA ADDL. SESSIONS JUDGE 02 (SOUTH) :
SAKET COURTS, NEW DELHI SC No. 27/09 Unique Case ID No. 02403R0031082009 State Vs. 1. Neeraj S/o Sh. Pirshotam R/o J1, Gali No.8, H. No.502, Sangam Vihar, New Delhi.
2. Bittoo S/o Sh. Chhote Lal R/o J1, H.No. 478/8, Sangam Vihar, New Delhi.FIR No. : 479/08
u/Ss : 363/366/342/376/34 IPC PS : Mehrauli Date of Committal : 09.02.2009 Arguments Concluded on : 27.04.2011 Date of Decision : 27.04.2011 JUDGMENT. 1.0 On 26.09.2008 Smt. Madhuri, mother of the prosecutrix
lodged missing report vide DD No 8 Ex PW 14/K that her daughter Page 5 of 4 SC No.2709 (State Vs. Neeraj & Anr.) prosecutrix (name withheld) aged around 14 years who had gone to her school, at around 07.30 am on 25 September 2008 in school uniform, did not reach school. Nor did the prosecutrix reach back home.
On 28.09.2008 Smt. Madhuri again approached the police and file a detailed complaint Ex PW 14/K alleging there that on 28.09.2008 at around 09.00 am while she was searching for her daughter, prosecutrix met her near the house of her uncle Sh. Chander Pal. The prosecutrix told her mother i.e. complainant that on 25.09.2008 at around 07.30 am after she was dropped by Auto for her school at Mehrauli Bus Terminal and while she was going to her school on foot accused persons namely Neeraj and Bittu, who are neighbours of the prosecutrix came on motorcycle. Neeraj offered to drop the prosecutrix to her school on motorcyle, and asked prosecutrix to sit on the motorcycle. The prosecutrix refused for the same, on which both the accused persons forcibly made the prosecutrix to sit on the motorcycle between both of them. Neeraj was driving the motorcycle. He took the prosecutrix to the matrimonial house of his sister Seema at Hanuman Mandir, near Hamdard. Coaccused Bittoo left the scene from there. Neeraj locked the prosecutrix in room. After sometime Neeraj came into the room and asked the prosecutrix to marry her. The prosecutrix declined this offer and thereafter, accused Neeraj forcibly committed rape with the prosecutrix. Neeraj again locked Page 6 of 4 SC No.2709 (State Vs. Neeraj & Anr.) the prosecutrix in the room and went away. Next day at around 11.00 am Neeraj again came and forcibly committed rape upon her. He also made the prosecutrix to change her clothes and kept the same. The prosecutrix was kept locked in the room for entire day. When Neeraj came to know that report has been lodged against him in the police, he got frightened and left the prosecutrix near the house of Sh. Chander Pal. On this complaint, an endorsement Ex PW 7/K was made and FIR under Section 363/366/376/34 IPC was lodged. The investigation was entrusted to PW 14 W/ASI Adesh Kumari. The prosecutrix was medically examined vide MLC Ex PW 4/K. Osification test of the prosecutrix was also conducted. As per the osification report Ex PW 1/K the approximate bone age of prosecutrix was found to be 16.4 + 2 years. However, as per date of birth certificate, Ex.PW10/B, issued by GNCT, the date of birth of prosecutrix is 31.01.94. The vaginal smear of the prosecutrix was seized vide seizure memo Ex.PW5/B. The prosecutrix pointed out the place of incident and on her pointing out the site plan Ex PW 14/A was prepared.
On 30.09.2008 accused Bittu was arrested vide arrest memo Ex.PW12/A and his personal search was conducted vide memo Ex PW 12/B. Accused Neeraj was arrested on 04.10.2008 vide arrest memo Ex PW 3/B and his personal search memo was conducted vide memo Ex PW 14/B. Accused Bittu made a disclosure statement Ex PW 12/C and Page 7 of 4 SC No.2709 (State Vs. Neeraj & Anr.) accused Neeraj made a disclosure statement Ex PW 14/C. Accused Neeraj was medically examined vide MLC Ex PW 2/A. Accused pointed out the place of incident to the investigation officer vide pointing out memo Ex PW 14/F. The accused also got recovered the clothes of the prosecutrix which he had kept after committing rape upon her, vide memo Ex.PW14/A. The blood sample of the accused was seized vide memo Ex.PW14/D. The motorcycle used in the offence was seized vide memo Ex.PW14/G. During investigation, investigation officer seized the school certificate Ex.PW10/D. As per school certificate the date of birth of the prosecutrix was 31.01.1994. The admission form Ex.PW10/C and affidavit of the father of the prosecutrix submitted at the time of admission Ex.PW10/K were also seized. The photograph of the birth certificate issued by Government of NCT of Delhi Ex.PW10/B was seized. The statement of the prosecutrix under section 164 Cr. P.C. Ex.PW16/B was recorded. The exhibits were sent to the FSL. The FSL results Ex.PW14/J and J1 were collected. After investigation charge sheet under section 363/366/342/376/34 IPC was filed in the court after compliance of section 207 Cr.P.C. The case was committed to the court of sessions for trial.
2.0 Being a prima facie, charge u/Ss.363/366/342/376/34 IPC Page 8 of 4 SC No.2709 (State Vs. Neeraj & Anr.) was framed against the accused persons to which accused persons pleaded not guilty and claimed trial.
3.0 Prosecution examined 16 witnesses in support of its case. PW1 Dr. Rajiv N. Priyadarshi proved the ossification report of the prosecutrix as Ex.PW1/A. As per report, the bone age of the prosecutrix was 16.5 + 2 years. PW2 Dr. Akhilesh proved the MLC of accused Neeraj as Ex.PW2/A. It was opined that there was nothing to suggest that accused was incapable of performing sexual intercourse. PW4 Dr. Aparajita proved the MLC of the prosecutrix as Ex.PW4/A. 3.1 PW3, the prosecutrix (name withheld) supported the case of the prosecution. She stated that on 25.09.08 while she was gong to her school, accused persons Neeraj & Bittoo came on motorcycle and forcibly made her to sit on motorcycle on the pretext that they will drop her to her school. She was made to sit between them. Thereafter, both the accused persons took her to a vacant plot behind Hanuman Mandir. Accused Bittoo left from there and Neeraj took her inside a room and closed the door and left. Prosecutrix remained confined inside the room for whole of the day and accused Neeraj came during night and asked her to marry Page 9 of 4 SC No.2709 (State Vs. Neeraj & Anr.) him. On being refused by the prosecutrix, accused Neeraj committed rape upon her. Next day, accused Neeraj came during night hours and asked her to marry him and again committed rape upon her. Since Neeraj came to know that the parents of the prosecutrix have lodged a complaint, he left the prosecutrix near the house of her uncle. Prosecutrix proved her statement u/S.164 Cr.P.C. as Ex.PW3/A. Accused persons were also duly identified by the prosecutrix.
In the cross examination, prosecutrix admitted that she knew Neeraj and his family prior to the incident. Prosecutrix stated in her cross examination that she sat on the motorcycle as accused gave an assurance that they will drop her to her school and she felt that accused persons will keep their words. However, from there the prosecutrix was directly taken to an isolated place. Prosecutrix stated that she raised alarm while she was alone in the room but nobody listened. She had also hit the accused at the time when he raped her. However, during this period, the prosecutrix was not allowed to go outside at all. In the cross examination, prosecutrix was confronted with certain improvements in regard to raising of alarm and resistance during the rape. Prosecutrix also stated that she was not given anything to eat and drink during the whole period of confinement. Prosecutrix in her cross examination also stated that she was dropped by the accused at about 11 / 12 noon of 27.09.08 on motorcycle and she Page 10 of 4 SC No.2709 (State Vs. Neeraj & Anr.) could not make any noise as she was not able to speak at that time. It is pertinent to mention here that as per the case of the prosecution, the prosecutrix was dropped back by the accused on 28.09.08. Prosecutrix stated that her statement was recorded after a good lapse of time after she reached the PS. During the cross examination on behalf of coaccused Bittoo, the prosecutrix denied the suggestion that she was on friendly and talking terms with accused Neeraj and she willingly sat on the motorcycle of the accused. However, she admitted that accused Bittoo came and sat on the motorcycle after she sat on the same and prior to that only Neeraj had came alone at the motorcycle. She admitted that there was heavy crowd on the way while she was taken away by the accused persons and she did not make any noise or alarm during the way. Prosecutrix also admitted that accused did not forcibly pull her to sit on the motorcycle. The prosecutrix had no knowledge if accused Bittoo was knowing or not where they were going.
3.2 PW5 Smt. Madhuri, mother of the prosecutrix proved her complaint as Ex.PW5/A. She stated that prosecutrix was around 14 years of age and did not return from school on 25.09.08, for which she lodged a missing report on 26.09.08. PW5 stated that on an information given by the prosecutrix, she filed the complaint Ex.PW5/A. In the cross Page 11 of 4 SC No.2709 (State Vs. Neeraj & Anr.) examination, PW5 admitted that accused Neeraj is their neighbour. During cross examination of PW5, there were certain contradictions regarding the dates i.e., date of lodging report and date of dropping back the prosecutrix by the accused. PW5 stated that prosecutrix was born in the hospital on 30.01.94. Initially, she was admitted in nursery in a private school namely Manyata Public School. However, at that time no paper regarding date of birth of prosecutrix, was deposited. PW5 stated that the school of the prosecutrix was changed after 4th standard. 3.3 PW6 Sh. S.S. Rawat, brought the birth register of the year 1994 maintained at Safdarjung Hospital. He proved that as per entry No. 1275 dated 31.01.94, a baby girl was born to Madhuri and Yashpal. Copy of entry No.1275 was proved as Ex.PW6/A. PW7 SI Adesh Prakash had made an endorsement Ex.PW7/A on complaint Ex.PW5/A. However, thereafter the investigation was transferred to W / SI Adesh. PW8 Ct. Yaad Ram was a link witness who took the exhibits to FSL vide RC No. 119/21 on 28.11.08. PW9 Sh. Ranbir Singh, Record Keeper from Sheikh Sarai Authority, proved the ownership of motorcycle bearing No. DL 3S AX 8608 in the name of Purshottam Dass. The certificate issued by the MLO in this regard is proved as Ex.PW9/A. PW10 Sh. Page 12 of 4
SC No.2709 (State Vs. Neeraj & Anr.) R.K. Jha, Asstt. Teacher brought the school record regarding date of birth of the prosecutrix. He proved the copy of affidavit as Ex.PW10/A, copy of birth certificate as Ex.PW10/B and copy of admission form as Ex.PW10/C. He also proved the certificate issued by Principal as Ex.PW10/D. He stated that the date of birth given in the affidavit was on the basis of birth certificate issued by NDMC. PW11 Ct. Mastram proved the arrest memo of accused Neeraj as Ex.PW3/B. PW12 Ct. Sri Krishan proved the arrest memo of accused Bittoo as Ex.PW12/A and his personal search as Ex.PW12/B. PW12 also proved the disclosure statement of accused Bittoo as Ex.PW12/C. PW13 Sh. Raghuraj Singh was a formal witness regarding arrest memo and personal search memo of accused Bittoo. He also stated that prosecutrix aged about 1314 years, went missing on 25.09.08. Accused was arrested at the statement of his sister i.e. PW5 and prosecutrix informed her that she was taken away by the accused persons.
3.4 PW14 W / ASI Adesh Kumari, Investigation Officer (IO) formally proved the case of prosecution. She proved site plan as Ex.PW14/A, personal search memo of accused Neeraj as Ex.PW14/B and disclosure statement of Neeraj as Ex.PW14/C. PW14 also proved the seizure memo of medical exhibits of accused Neeraj as Ex.PW14/D. Page 13 of 4 SC No.2709 (State Vs. Neeraj & Anr.) Neeraj got recovered the clothes of the prosecutrix from his house i.e. K1/18, Sangam Vihar and the same were seized vide memo Ex.PW14/E. Pointing out memo was proved as Ex.PW14/F. PW14 proved seizure memo of motorcycle No. DL 3S AX 8608 as Ex.PW14/G and DD No.8A as Ex.PW14/K. PW14 stated that the record from school regarding date of birth was collected and statement of the prosecutrix was got recorded u/S. 164 Cr.P.C. FSL report has been proved as Ex.PW14/J1 and Ex.PW14/J2. In the cross examination, IO stated that she did not record the statement of father of the prosecutrix as he was not in Delhi. PW15 Ct. Arun Kumar is a formal witness regard seizure of motorcycle No. DL 3S AX 8608. PW16 Sh. Sanjay Bansal, the then Ld. MM proved the statement of the prosecutrix as Ex.PW16/B and certificate given by him as Ex.PW16/C. 4.0 In his statement u/S.313 Cr.P.C., accused Neeraj denied all the allegations and submitted that in fact, the father of prosecutrix wanted to marry the prosecutrix with him, but the mother of the prosecutrix was against this marriage and later on under the pressure, this case was got registered by the mother of the prosecutrix against him and this is a false case and he has been falsely implicated.
Coaccused Bittoo in his statement u/S.313 Cr.P.C. also stated that he is innocent and has been implicated falsely. Accused stated that Page 14 of 4 SC No.2709 (State Vs. Neeraj & Anr.) the prosecutrix and Neeraj were friends and the prosecutrix had gone with Neeraj at her own will.
5.0 Sh. M.Z. Khan, Ld. Addl. PP for State has submitted that the prosecution has successfully proved its case against the accused persons beyond reasonable doubt. It has been submitted that prosecutrix has made a consistent and corroborative statement on oath and prosecution has duly proved that prosecutrix was minor and she was taken away by the accused persons. It has further been submitted that the prosecutrix was raped by accused Neeraj and therefore, both the accused persons are liable to be convicted.
5.1 Per contra, Sh. Gaje Singh, Ld. counsel for the accused persons submitted that prosecution has miserably failed to prove its case against the accused persons. It has been submitted that the prosecutrix had gone with the accused persons at her own will and remained with accused Neeraj willingly. It was a case of consent. It has further been submitted that in the cross examination of the prosecutrix, there is enough material to conclude that there was complete consent on the part of the prosecutrix. In support of his contentions, Ld. counsel cited Som Nath Vs. State of Punjab, 2008(4) CC Cases (HC) 96 ; Ramesh Vs. State of Haryana, 1999 (1) CC Cases HC Page 15 of 4 SC No.2709 (State Vs. Neeraj & Anr.) 424 ; Mahabir Prasad Vs. State, 1999 (1) CC Cases HC 475 ; Shyam & Anr. Vs. State of Maharashtra, AIR 1995 SC 2169 and Baldeep Singh Vs. U.T. Chandigarh, 2008 (1) CC Cases (HC) 92.
6.0 I have heard Sh. MZ Khan, Ld. Addl. PP for State and Sh. Gaje Singh, Ld. counsel for accused persons and have carefully gone through the material on record.
AGE OF THE PROSECUTRIX 7.0 In cases involving sections 363/366/376 IPC, the first, foremost and crucial question is the age of the prosecutrix. As per the prosecution, the prosecutrix was around 14 years of age. In order to prove this contention, the prosecution has duly proved on record the birth certificate of the prosecutrix issued by the Registrar Birth and Death, NDMC, New Delhi. Prosecution has also placed on record the school record as well as hospital record regarding the date of birth of the prosecutrix. All the documents unambiguously indicates that the date of birth as 31.01.94.
The defence has heavily relied upon the documents of the prosecution itself i.e. Ex.PW1/A. This is ossification test report of the prosecutrix. As per this report, the age of the prosecutrix was around 16 + 2 years. Ld. defence counsel argued in detail that in view of the documents of the prosecution itself, the age of the prosecutrix was more than 18 years of Page 16 of 4 SC No.2709 (State Vs. Neeraj & Anr.) age as on the date of offence. Ld. counsel has submitted that in Somnath's case (supra) it has been held that if there is a doubt about the authenticity of school certificate, the ossification test report can be taken into account. Ld. counsel has also relied upon the judgments in Ramesh Vs. State of Haryana and Mahavir Prasad Vs. State cases (supra), wherein also in view of the doubt as to the age of the prosecutrix , the benefit was given to the accused. 7.1 Section 363 IPC provides punishment of kidnapping. Kidnapping has been defined under section 361 IPC. As per section 361 IPC , the crucial age is 18 years, in the case of a female. However, as per section 375 IPC, which defines the offence of rape, the crucial age is 16 years. As per 6th clause of section 375 IPC, the sexual intercourse with a woman shall be punishable if the same has been done without her consent beyond the age of 16 years. Thus, if a girl is below 16 years of age, her consent is irrelevant. Hence, in the present case, the age of the prosecutrix has to be seen from two angles. If the prosecutrix was more than 16 years then it has to be seen that whether she was a consenting party for the offence of rape or not. However, for the purpose of charge u/Ss.363 & 366A IPC, the relevant age would be 18 years. Thus, the accused persons can be exonerated only if the age of the prosecutrix is held to be more than 18 years of age.
If the ossification report, Ex.PW1/A filed by the prosecution is accepted, then, the age of the prosecutrix can be held to be more than 18 Page 17 of 4 SC No.2709 (State Vs. Neeraj & Anr.) years. Now the question is that whether the date of birth certificate and school admission record which indicates the date of birth of prosecutrix as 31.01.94, are to be given precedent over the ossification test report or not. It is pertinent to mention here that the date of offence is 25.09.08. Thus, if we admit the birth certificate and school record of prosecutrix, the prosecutrix was little more than 14 years of age at the time of incident.
The ossification test report to my mind is only an expert opinion. In this regard, section 45 of Indian Evidence Act is important, which reads as under :
"45. Opinions of experts - When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions] are relevant facts."
If we peruse section 45 Indian Evidence Act, an expert opinion is not at all binding. It is merely an opinion. It is also a settled proposition that ossification test is not infallible and accurate test as to indicate the correct number of years and days accused has lived. Hence, the opinion of a medical expert based on such test cannot be regarded to be conclusive. Reference can be made on State Vs. Musha & Others, I.L.R. (1970) II Delhi 198. In this case, the Division Bench of our own Hon'ble High Court has placed reliance Page 18 of 4 SC No.2709 (State Vs. Neeraj & Anr.) upon Kishori Lal Raghbir Dass Vs. State, AIR 1957 Punjab 78. Thus, I consider that the ossification test report is merely an expert opinion and certainly the record as to the date of birth has to given precedent with the same. I consider that the ossification test report can be taken into account if the record produced by the school is doubtful and there is no other evidence so as to prove the age of the prosecutrix.
7.2 In the present case, the prosecution has duly placed on record the date of birth certificate issued from Registrar, Date & Birth and record from school and I have no doubt over the same. Thus, this court is of considered opinion that the prosecution has successfully proved that the date of birth of the prosecutrix was 31.01.94. In these circumstances, the prosecutrix was little more than 14 years of age as on the date of incident. CONSENT OF THE PROSECUTRIX 8.0 Ld. counsel for the accused persons has emphasized that the prosecutrix did not raise any alarm while she was being taken away nor did she raise any alarm while she was allegedly kept in custody for 2 days and therefore, her consent can be presumed on her part. 8.1 Kidnapping has been defined u/S.361 IPC, which reads as Page 19 of 4 SC No.2709 (State Vs. Neeraj & Anr.) under :
"Sec.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."
Thus, to constitute an offence, as per Section 361 IPC, the prosecution is required to prove the following ingredients
(i)The person kidnapped must be minor or a person of unsound mind ;
(ii)The age of the kidnapped person must be under 16 years in the case of a male or under 18 years in the case of a female ;
(iii)The minor or person of unsound mind must have been in the keeping of a lawful guardian ;
(iv)The kidnapping must be from the keeping of the lawful guardian of the minor or in the case of a person of unsound mind from the keeping of the lawful guardian of such person ;
(v)The offender must have taken away or enticed a Page 20 of 4 SC No.2709 (State Vs. Neeraj & Anr.) minor or a person of unsound mind from the keeping of the lawful guardian ;
(vi)Such "taking" or "enticing" must be without the consent of the lawful guardian.
"Taking" or "enticing" has become a subject of judicial discussion in various landmark cases. In S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, a distinction was made between "taking" and allowing a minor to accompany. In this case it was held that the evidence of the girl leaves no doubt that the insistence of marriage came from her side and the appellant by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. There was no ingredient of taking her out. It is also pertinent to mention here that in that case, the prosecutrix was a college going girl and the Hon'ble Supreme Court specifically remarked that she was not uneducated or unsophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from a rural area.
8.2 In the case in hand, the girl was a school student. She was only Page 21 of 4 SC No.2709 (State Vs. Neeraj & Anr.) 14 years of age. In S. Varadarajan's case (supra), it was inter alia held as under :
"... After pointing out that there is an essential distinction between the words "taking" and "enticing" it was no doubt observed that the mental attitude of the minor is not of relevance in the case of taking and that the word "take" means to cause to go, to escort or to get into possession. But these observations have to be understood in the context of the facts found in that case. For, it had been found that the minor girl whom the accused was charged with having kidnapped had been persuaded by the accused when she had gone out of her house for answering the call of nature, to go along with him and was taken by him to another village and kept in his uncle's house until she was restored back to her father by the uncle later. Thus, here there was an element of persuasion by the accused person by the accused person which brought about the willingness of the girl and this makes all the difference. In our opinion, therefore, neither of these decision is of assistance to the State."
Similarly, in State of Haryana Vs. Raja Ram, AIR 1973 SC 819 it has been inter alia held as under :
"... The fact that the prosecutrix was easily persuaded to go with Raja Ram would not prevent him from being guilty of the offence of kidnapping her. Her consent or willingness to accompany Raja Ram would be immaterial and it would be equally so even if the proposal to go with Raja Ram had emananted from her. There is no doubt a Page 22 of 4 SC No.2709 (State Vs. Neeraj & Anr.) distinction between taking and allowing a minor to accompany a person. But the present is not a case of the prosecutrix herself leaving her father's house without any inducement by Raja Ram who merely allowed her to accompany him."
I consider that on the basis of judgment of the Apex court, it can be concluded that if the minor leaves her home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in section 361 IPC. However, if there is any inducement, allurement or threat and if this has influenced the minor in leaving her guardian's custody or keeping and going with the accused persons, then it would come within the purview of offence.
8.3 Ld. defence counsel has argued at length that if we see the testimony of prosecutrix, it has come on the record that while she was taken away, there was traffic on the road. However, she did not raise any alarm while she was being taken away b y the accused persons and she did not ask for help for anyone and therefore, it was a case of merely accompanying the accused persons. I respectfully disagree with the ld. defence counsel.
If we peruse the testimony of the prosecutrix, she has specifically stated that while she was walking towards her school, accused Neeraj and Page 23 of 4 SC No.2709 (State Vs. Neeraj & Anr.) Bittoo came there and asked her that they will drop her to her school. Initially, she denied, however, accused persons forcibly made her to sit on motorcycle. Even in the cross examination on behalf of accused Neeraj, prosecutrix stated that while she was walking on the road, accused persons approached her and she sat on the motorcycle as accused gave an assurance that they will drop her to her school and she felt that accused persons will keep their words.
8.4 While appreciating the evidence of witnesses and particularly in the present like cases, the court has to take a pragmatic and practical approach taking into account the mental condition at the relevant time. Here was a very young girl who was going to the school and she was offered motorcycle ride by her neighbour to drop her to school. Prosecutrix initially resisted but sometime what happens is that, even one is not willing to accept the request or offer of the other, but do not muster the courage to say "No" forcefully. I consider that in the present case, the prosecutrix simply failed to resist the act of the accused persons of her being taken away. An offence of kidnapping is basically an offence against the guardianship of the minor. The prosecutrix has also made a statement on oath regarding the fact that while she was going to the school, she was intercepted by the accused persons on her way and forcibly made her to sit on their motorcycle. I consider that in the present case, the mother of the prosecutrix made a Page 24 of 4 SC No.2709 (State Vs. Neeraj & Anr.) specific statement on oath that the prosecutrix was taken out of her guardianship by the accused persons. It has also come in the testimony of the prosecutrix that both the accused persons were together when she was being taken away by them.
9.0 Accused persons have also been charged for the offence u/S.366 IPC.
The prosecutrix has specifically made a statement on oath that after she was being taken away, accused Neeraj came to her and asked her to marry him and when she refused, accused Neeraj committed rape upon her. Prosecutrix has remained consistent regarding this. The defence of the accused is that father of the prosecutrix wanted to marry the prosecutrix with him. Thus, it is proved beyond reasonable doubt that accused Neeraj had kidnapped the prosecutrix with an intention to marry her against her will or forced, induced or seduced for illicit intercourse. CHARGE U/S.376 IPC 9.1 Rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely assault it is often destructive of the whole personality of the victim. The murderer destroys the physical Page 25 of 4 SC No.2709 (State Vs. Neeraj & Anr.) body of his victim. Rapist degrades the very soul of the helpless female. [State of Punjab V. Gurmit Singh and Others, 1996(1) RCR(Criminal) 533].
The offence of rape are such that normally the prosecutrix would not alleged false allegations. If we go through the provisions of law on this point and particularly section 114A of Indian Evidence Act, it is clear that the presumption is that there was no consent on behalf of the prosecutrix. The absence of an offence can be inferred from the statement of the prosecutrix under Section 114A of the Evidence Act. 9.2 Now coming to the offence of rape. The prosecutrix has made a specific statement on oath regarding the offence of rape having been committed by accused Neeraj upon her. Prosecutrix made a statement on oath that accused Bittoo left immediately after she was taken to a vacant plot. Accused Neeraj took her inside the room and closed the door and left from there. She stated that accused Neeraj came during night and asked her to marry him and on her refusal, accused Neeraj committed rape upon her. Next day again, accused Neeraj committed rape upon her. In the cross examination, the defence has proved on record certain improvements made by the prosecutrix. These improvements were mainly regarding raising alarm / resistance made by the prosecutrix. The defence is that sexual Page 26 of 4 SC No.2709 (State Vs. Neeraj & Anr.) intercourse took place with the consent of the prosecutrix. As this court has already decided that the prosecutrix was minor below 16 years of age as on the date of incident, the consent of the prosecutrix became irrelevant. 9.3 In view of the above findings, I consider that the prosecution has successfully proved its case against the accused persons beyond reasonable doubt. It seems that both the accused persons in furtherance of their common intention took away the prosecutrix. However, I consider that common intention was shared between the accused persons only for kidnapping the prosecutrix from lawful guardian. I consider that there was no common intention on the part of the accused persons in the offence of of rape u/S.376 IPC. Hence, accused Neeraj is convicted for offence u/S.366 and u/S.376 IPC r/w section 34 IPC.
On the basis of material on record, I consider that the prosecution has successfully proved its case against accused Bittoo for offence u/S.363/34 IPC.
Announced in the Open Court (Dinesh Kumar Sharma)
Today on 27.04.2011 ASJ02 (South) / Saket Court
New Delhi
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