Delhi District Court
Sc No. 264/14 State vs . Raju @ Shyam on 17 December, 2015
SC No. 264/14 State Vs. Raju @ Shyam
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 264/14
FIR No. 616/14
Police Station Jahangir Puri
Under Section 363/376 IPC & 4 POCSO
Act
ID No. 02404R0-055032015
State
Versus
Raju @ Shyam
S/o Sh. Suresh
R/o House of Kale,
Near Jagram Chowk,
Mukundpur, Delhi
......Accused
Date of institution 24.12.2014
Judgment reserved on 17.12.2015
Judgment Pronounced on 17.12.2015
Decision Acquitted
Judgment Page 1 of 12
SC No. 264/14 State Vs. Raju @ Shyam
JUDGMENT
1. FIR in question was registered on the complaint of mother of prosecutrix M alleging that on 01.08.2014, her daughters prosecutrix M aged around 15 years and 'U' aged about 6 years went missing. She alleged that accused Raju @ Shyam enticed her daughters and kidnapped them.
2. On 02.08.2014, younger daughter of the complainant was produced by sister of the accused and she was handed over to the complainant. During the course of investigation, IO made efforts to search for the prosecutrix through publicity and publication in electronic and printed media but there was no clue of the prosecutrix. On 01.10.2014, prosecutrix M and accused were produced by Jija of the accused in the police station. Prosecutrix was medically examined and her statement was recorded u/s 164 Cr.P.C. In her statement, prosecutrix stated that on 01.08.2014 she voluntarily left her home and went with accused Raju @ Shyam as she loved him and got married to the accused and started living Judgment Page 2 of 12 SC No. 264/14 State Vs. Raju @ Shyam peacefully like husband and wife. Prosecutrix stated that she loves the accused and wanted to live with him.
3. Since the age of the prosecutrix was found less than 18 years, accused was arrested and charge-sheeted. Charge for the offence punishable U/s 363 IPC & 4 POCSO Act in alternative 376 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
4. Prosecution has examined the prosecutrix only.
5. PW1 is the prosecutrix. She deposed that she & accused were working in the same factory. Her mother used to beat her without any rhyme or reason for that reason she voluntarily left her house of her own on 01.08.2014 and went along with accused to Agra. At that time she had already attained majority and her mother has wrongly mentioned her age at the lower side. She further deposed that while leaving home, she also took her younger sister Judgment Page 3 of 12 SC No. 264/14 State Vs. Raju @ Shyam with her and left her in the house of sister of accused. She further stated that accused did not pressurized her to accompany him. Thereafter, she married the accused with her consent. She stated that accused did not make physical relations with her before marriage. On 01.10.2014, she was produced before police. She deposed that she was medically examined and proved her statement recorded u/s 164 Cr.P.C. as Ex. PW1/A.
6. In the present case, the prosecution cited 20 witnesses in order to prove its case against the accused. After framing of the charge the accused gave a statement wherein he admitted DD No. 38A dated 01.08.2014, FIR in question, MLC of prosecutrix, MLC of younger sister of prosecutrix, his MLC, his potency examination report, arrest memo, personal search memo, certificate issued by the school of prosecutrix for her date of birth, school admission record of prosecutrix. These documents are Ex PX-1 to Ex PX-10.
Judgment Page 4 of 12
SC No. 264/14 State Vs. Raju @ Shyam
7. In view of the statement of the accused, the concerned Duty Officer, Doctors and police witnesses were not summoned for examination.
8. Statement of accused was dispensed with as no incriminating evidence came on record against the accused from the statement of the prosecutrix.
9. Arguments have been addressed by learned Additional PP as well as learned defence counsel.
10. I have heard the arguments and also perused the case file carefully.
11. Age of the Prosecutrix: In the present case, accused is alleged to have married the prosecutrix, a minor aged about 15 years with intent to compel her to marry him and/or be forced/seduced for illicit intercourse with him. In order to prove Judgment Page 5 of 12 SC No. 264/14 State Vs. Raju @ Shyam that the prosecutrix was a "Child" less than 18 years of age, as on the date she went missing from her house, prosecution collected the birth certificate of the prosecutrix from her school wherein, the date of birth of the victim is mentioned as 01.01.2002. The School Record of the prosecutrix stands admitted by the accused as Ex PX-8 & 9. However, no government record in respect of the date of birth of the prosecutrix has been produced.
12. The Juvenile Justice (Care and Protection of Children) Act, 2000 has laid down the guidelines to arrive at a finding about the age of a juvenile. These are contained in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. The procedure to be followed in the determination of the age is contained therein. Hon'ble Supreme Court in Mahadeo Vs. State of Maharashtra & Anr, (2013) 11 SCC 637 has held that this procedure will also apply for determination of age of a rape victim. Judgment Page 6 of 12
SC No. 264/14 State Vs. Raju @ Shyam
13. Rule 12 (3) clearly states that the age inquiry would conducted by the Court by obtaining matriculation or equivalent certificate in the absence of which the date of birth certificate from the school first attended or the next option being the birth certificate issued by the municipal authorities be obtained. Documents relied upon by the prosecution to establish that the prosecutrix was born on 01.01.2002 does not fit into any of the afore-noted category. In such an anomaly, Rule 12 states that a Medical Board will be constituted to determine the age of a victim. This would only be a relevant fact and needless to state, would not be a conclusive evidence about the age of the victim.
14. Stand of the prosecution that the prosecutrix was a minor is not established by the documents relied upon by the prosecution. In terms of Rule 12 if the first three parameters contained in Rule 12 (3) are not made available, the next step would be to subject the prosecutrix to an ossification test. But the ossification test was not got conducted on the prosecutrix. Judgment Page 7 of 12
SC No. 264/14 State Vs. Raju @ Shyam
15. Prosecutrix in her testimony claims her age to be 20 years. Her MLC Ex PX-3 also mentions her age as 20 years. No record of any Government authority has been relied upon by the prosecution to prove genuine date of birth of the prosecutrix. Therefore, there is no conclusive evidence on record to establish that prosecutrix was a minor, on the day when she went missing.
16. Testimony of prosecutrix: Prosecutrix categorically deposed that she left her house of her own without informing her family and went along with accused. She further stated that accused did not force her to accompany him. Thereafter, she married the accused with her consent. She stated that accused did not make physical relations with her before marriage. She further deposed that while leaving home, she also took her younger sister with her and left her in the house of sister of the accused. On 01.10.2014, she was produced before the police.
Judgment Page 8 of 12
SC No. 264/14 State Vs. Raju @ Shyam
17. In her statement recorded u/s 164 Cr.P.C as Ex PW1/A as well, the prosecutrix stated that she was in love with accused and got married to him. She categorically stated that she does not want to stay with her parents and is happily leading her matrimonial life with the accused.
18. Testimony of the prosecutrix shows that she was not enticed by the accused in any manner, to go with him. Rather she deposed that she herself went with the accused and took his younger sister along with her and later on married the accused. Prosecutrix further deposed that she is leading a happy married life with accused. Thus, the factum of forcible marriage or taking away of the prosecutrix for the purpose of said marriage is concerned, there is not even an iota of evidence on record.
19. It has been held in para 8 of the judgment titled as Bunty Vs. State (G.N.C.T.) of Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011 by the Hon'ble Delhi High Court that : Judgment Page 9 of 12
SC No. 264/14 State Vs. Raju @ Shyam "8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had traveled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...."
20. In this regard, it would relevant to refer to the case titled as " S. Varadarajan Vs. State of Madras (reported as AIR 1965 SC 942)", where in while distinguishing between "taking" and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India that:
"There is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian."Judgment Page 10 of 12
SC No. 264/14 State Vs. Raju @ Shyam
21. In the present case also, the element of 'taking away' or 'enticement' is found to be lacking. In view of the material on record, it appears that prosecutrix was willing and consenting party and it is evident that everything has happened with her will.
Furthermore, prosecutrix further deposed that she took her younger sister along with her and left her at the house of sister of accused.
Therefore, the factum of kidnapping of prosecutrix or her sister does not stands proved.
22. Nutshell of foregoing discussion is that from the testimony of the prosecutrix as well as other material witnesses examined by it, the prosecution has miserably failed to prove that accused had kidnapped prosecutrix.
23. As per MLC Ex PX-3, prosecutrix refused for her internal medical examination. Thus, there is no medical evidence on record to substantiate allegations of sexual assault on the prosecutrix by the accused. Moreover, prosecutrix categorically Judgment Page 11 of 12 SC No. 264/14 State Vs. Raju @ Shyam deposed that she has married to the accused and thereafter established physical relations with him voluntarily and with her consent. In such a case, the accused being husband of the prosecutrix cannot be held guilty of establishing physical relations with his wife which as per the deposition of the prosecutrix are consensual.
24. Thus, in the light of the evidence recorded the allegations against the accused are not proved. Accordingly, the accused stands acquitted for the offence punishable U/s 363 IPC & 4 POCSO Act in alternative u/s 376 IPC. Accused is directed to furnish a personal bond in sum of Rs 10,000/- under provisions of Section 437-A Cr.P.C. with a surety in the like amount.
File be consigned to record room.
Announced in open Court on Day of 17th December, 2015.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
17.12.2015
Judgment Page 12 of 12
SC No. 264/14 State Vs. Raju @ Shyam
State Vs. Raju @ Shyam
FIR No. 616/14
SC No. 264/14
PS: Jahangir Puri
17.12.2015
Present : Ms. Suchitra Singh Chauhan, Ld. Addl. PP for the State.
Accused on bail with ld. Counsel Sh. Anil Rana.
No PW is present.
Accused has admitted DD No. 38A dated 01.08.2014, FIR in question, MLC of prosecutrix, MLC of younger sister of prosecutrix, his MLC, his potency examination report, arrest memo, personal search memo, certificate issued by the school of prosecutrix for her date of birth, school admission record of prosecutrix.
In view of the statement of the accused, DD No. 38A dated 01.08.2014 is now Ex. PX-1, FIR in question is now Ex. PX-2, MLC of prosecutrix is now Ex. PX-3, MLC of younger sister of prosecutrix is now Ex. PX-4, potency examination report of accused is now Ex. PX-5, arrest memo is now Ex. PX-6, personal search memo is now Ex. PX-7, certificate issued by the school of prosecutrix for her date of birth is now Ex. PX-8, school admission record of prosecutrix is now Ex. PX-9.Judgment Page 13 of 12
SC No. 264/14 State Vs. Raju @ Shyam 2 Prosecutrix has not supported the prosecution version, hence PE stands closed. There is no incriminating evidence against the accused, recording of his statement u/s 313 Cr.P.C stands dispensed with.
Vide separate judgment, accused stands acquitted. He is directed to furnish a personal bond in sum of Rs 10,000/-, under provisions of Section 437-A Cr.P.C with surety in the like amount.
Bond furnished and accepted.
File be consigned to record room.
(GAUTAM MANAN) ASJ-01:NORTH:ROHINI:DELHI 17.12.2015 Judgment Page 14 of 12