Delhi District Court
State vs Mukesh Malik//Sc No.04/13//Fir ... on 24 October, 2013
IN THE COURT OF SHRI SANJEEV KUMAR: ADDITIONAL SESSIONS
JUDGE01: NORTH: ROHINI:DELHI
S. C. NO:04/13.
FIR NO:399/11.
PS : NARELA.
U/S. 363/366/376 IPC.
STATE
VERSUS
MUKESH MALIK S/O. SUKHBIR SINGH
R/O. VILLAGE LALHADI, DISTRICTSONIPAT,
PSGANOR, HARYANA.
Date of Institution:15.01.2013.
Date of Argument :09.10.2013.
Date of Decision :24.10.2013.
JUDGMENT
1. The brief facts of the prosecution case are that on 12.8.2011, DD No. 96B was recorded at P. S. Narela on the information from PCR HQ that caller has informed that his daughter P (name withheld), aged about 14 years has been taken by one Mukesh after enticing her. The said DD was assigned to ASI Dharampal who reached at the spot and recorded statement of mother of the prosecutrix, namely, Sangeeta, in which she stated that on 3.8.2011, her daughter P had gone to throw garbage outside the house but she did not return back as she has believed that her daughter was taken by one Mukesh, S/o Sukhbir.
On the basis of the said statement, Dharampal prepared rukka and recorded FIR under Section 363 IPC. STATE VS MUKESH MALIK//SC NO.04/13//FIR NO.399/11// US-363/366 IPC page 1 of page 14 On 16.5.2012, the complainant told ASI Dharampal that her daughter and accused Mukesh have filed a petition in the Court of Sh. Kuldeep Jain, Sessions Judge, Sonepat Haryana. Thereafter IO/ASI Dharampal went in the said Court and after producing the age certificate of the prosecutrix took her custody and also arrested the accused. He got prosecutrix medically examined but the prosecutrix refused her internal examination. He produced the prosecutrix before Ld. MM for recording her statement under Section 164 Cr. P. C and concerned MM has recorded her statement. He recorded statements of the witnesses and after completion of investigation filed charge sheet under section 363/366 IPC and the accused was put to trial.
2. After compliance of provisions of Section 207 Cr. P. C, Ld. MM committed the case to the Sessions Court as the case was exclusively triable by Ld. Sessions Court and was assigned to this Court by the Ld. Sessions Judge.
3. Charge under section 363/366/376 IPC was framed against accused Mukesh who pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined seven witnesses, namely, PW1 Sh. Vinod Kumar Gupta, PW2 AsI Ishwar Singh, PW3 Smt. Pooja, PW4 SI Seema, PW5 Dr. Satpal Kaur, PW6 SI Dharampal and PW7 Smt. Sangeeta.
5. After completion of prosecution evidence, statement of accused was recorded under section 313 Cr. P. C. and all the STATE VS MUKESH MALIK//SC NO.04/13//FIR NO.399/11// US-363/366 IPC page 2 of page 14 incriminating evidence was put to him. He stated that the prosecutrix had performed marriage with him out of her own free will and consent.
6. In order to prove the age of the prosecutrix, he examined Sh. Vinod Kumar, Primary Teacher, Govt. Sr. Sec. School, Akbarpur, Barota, Sonepat, Haryana as DW1 and Dr. Gaurav Khera, Sr. Resident, Bara Hindu Rao Hospital, Delhi as DW2.
7. Arguments were heard from Sh. A. K. Gupta, Ld. APP for the state and Sh. Anil Malik, Counsel for the accused.
8. The case of the prosecution is that the accused has kidnapped 'P' a minor girl aged less than 16 years and committed sexual intercourse with her.
9. On the other hand, the main contention of Ld. Counsel for the accused is that the prosecutrix is major and above 18 years and she has voluntarily left her house as she had a love affair with the accused and, therefore, performed marriage with him and thereafter had sex with prosecutrix with her own consent.
10. The accused has been charged for kidnapping and rape of a minor. Section 361 IPC defined kidnapping, which is reproduced below:
361. Kidnapping from lawful guardianship.-- Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[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, STATE VS MUKESH MALIK//SC NO.04/13//FIR NO.399/11// US-363/366 IPC page 3 of page 14 without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
11. Whereas as per Section 375 IPC defined rape. Section 375 IPC is reproduced below : [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.--ith 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 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.
Hence, in both kidnapping and rape, age of the prosecutrix is very material because in case of rape her consent is immaterial if she is below 16 years of age and in case of kidnapping STATE VS MUKESH MALIK//SC NO.04/13//FIR NO.399/11// US-363/366 IPC page 4 of page 14 her consent is immaterial if she is below 18 years.
12. In order to prove the age of the prosecutrix, the prosecution has relied upon the testimony of PW1 Sh. Vinod Kumar Gupta, Lab Assistant, Sarvodya Kanya Vidyalaya No. 2, Narela where prosecutrix P was studying. As per the admission register, one girl P., D/o Raj Singh and Sangeeta was admitted in the school on 1.7.2009 vide admission entry no. 9706 and her date of birth was recorded as 15.4.1998. He proved the relevant entry as Ex.PW1/A.
13. PW5 Dr. Satpal Kaur, Principal, GSKV No. 2, Narela, Delhi has brought the admission register of the year 20092010. As per the admission register, one girl P., D/o Raj Singh and Sangeeta was admitted in the school on 1.7.2009 vide admission entry no. 9706 and her date of birth was recorded as 15.4.1998. She proved the relevant entry as already Ex.PW1/A. She further stated that the student P. was admitted in the school on the basis of affidavit given by her mother Sangeet. She also proved the affidavit given by mother of P. as Ex.PW2/A (wrongly written as Ex.PW2/A, now exhibited as Ex.PW5/A) and admission from Ex.PW2/B (wrongly written as Ex.PW2/B, now exhibited as Ex.PW5/B).
In her crossexamination, she stated that they do no see any document for passing out of previous class of the student before admitting him to a particular class as per the Right to Education Act and she admitted that a child of less than 11 years of age cannot STATE VS MUKESH MALIK//SC NO.04/13//FIR NO.399/11// US-363/366 IPC page 5 of page 14 be admitted in class VII in a government school as minimum age for a student to get admitted in first class is five years as per Delhi Government Education Rules.
14. On the other hand, Ld. Counsel for accused had examined DW1 Sh. Vinod Kumar, Primary Teacher, Govt. Sr. Sec. School, Akbarpur, Barota, Sonepat, Haryana also produced the admission record of P, D/o Raj Singh and stated that the said student was admitted in their school vide admission no. 4062 dated 12.9.2000 in first class and proved the relevant entry of the register as Ex.DW1/A and testified that as per the record, date of birth of P is 5.2.1994. he also deposed that at the time of admission, her mother had filled admission form Ex.DW1/B and further testified that P. had studied in rd the said school upto 3 class. In his crossexamination by Ld. APP for the state, he stated that no document was taken regarding age of birth of the student and voluntarily stated that the name of the child of village is generally enrolled in Anganwari and they sent a hand note about the age of the child but stated that no such hand note is available in record.
15. DW2 Dr. Gaurav Khera has proved the MLC of P. as Ex.PW3/DE. He deposed that after examination, her age was concluded between 19 to 20 years by Radiologist on the Xray slip Ex.PW3/D.
16. As per judgment of Jarnail Singh Vs. State of STATE VS MUKESH MALIK//SC NO.04/13//FIR NO.399/11// US-363/366 IPC page 6 of page 14 Haryana, 2013 VII AD (SC) 313 it is held that the rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007 to determine the age will be applicable in cases of victim also where victim is a child. The relevant portion of the judgment is reproduced as below:
20. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred hereinabove read as under:
"12. Procedure to be followed in determination of age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation STATE VS MUKESH MALIK//SC NO.04/13//FIR NO.399/11// US-363/366 IPC page 7 of page 14 home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) The matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee for the reasons to be recorded by them, may, if considered necessary, given benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, STATE VS MUKESH MALIK//SC NO.04/13//FIR NO.399/11// US-363/366 IPC page 8 of page 14 as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regard such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any or the conclusive proof specified in subrule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in subrule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those dispose off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of juvenile in conflict with law."
STATE VS MUKESH MALIK//SC NO.04/13//FIR NO.399/11// US-363/366 IPC page 9 of page 14 Even though, rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW PW6
17. Hence, the school admission record produced by st DW1 Ex.DW1/A will be given preference being of 1 class instead of school admission record produced by PW1 and PW5 which pertains to th st admission in 7 class. And as per School Admission Record of 1 class Ex.PW1/A, date of birth of the prosecutrix is 05.02.1994.
18. Approximately same age comes in her ossification test as per which she was 19 to 20 years on the date when her ossification test was conducted in Bara Hindu Rao Hospital as the same was conducted on 3.7.2012 i. e. approximately one year ago and since ossification test does not give accurate age and only approximate age is determined, therefore, prosecutrix could be 17½ years as mentioned in school certificate Ex.PW1/A. Hence, I hold that the date of birth of the prosecutrix on the day of alleged kidnapping was 5.2.1994.
19. As per testimony of PW7 Smt. Sangeeta, her STATE VS MUKESH MALIK//SC NO.04/13//FIR NO.399/11// US-363/366 IPC page 10 of page 14 daughter 'P' was taken by accused but she did not remember the date or month when she was taken. She further deposed that she has lodged the report after two days regarding kidnapping of the 'P' and her statement Ex.PW6/B by the police. On perusal of the statement Ex.PW6/B, I found that in that statement she had stated that her daughter is taken by accused Mukesh on 3.8.2011. Since nothing much has come out in her crossexamination that she had given false date regarding missing of her daughter as 3.8.2011, therefore, there is no ground to disbelieve that P has left her house on 3.8.2011. Hence, at that time, age of 'P' was 17 years five months and twenty nine days, hence, she was below 18 years of age.
20. The second ingredient of Section 361 IPC is whether accused has taken her from the lawful guardianship. There is a difference between taking and allowing a minor to accompanied with him. In case S. Vardarajan vs State of Madras 1965 AIR 942, 1965 SCR (1) 243, Hon'ble Supreme Court while dealing with almost similar kind of situation has held that:
"In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. It would, however, be sufficient STATE VS MUKESH MALIK//SC NO.04/13//FIR NO.399/11// US-363/366 IPC page 11 of page 14 if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence is to establish one of those thing is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her alongwith him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking".
21. PW3 i. e. 'P' has deposed that she wanted to marry with the accused and, therefore, on her own she went with the accused because her family members were not agreed of their marriage as at that time accused was not employed or earning anything and she had performed marriage with him at the office of the Registrar at Sonepat. In her crossexamination by Ld. APP, she has categorically denied that accused Mukesh allured her to go with him to Gurgaon and allured her to marry with him. She also denied that she had stated about going STATE VS MUKESH MALIK//SC NO.04/13//FIR NO.399/11// US-363/366 IPC page 12 of page 14 with the accused with her own wish because she wanted to save accused from legal punishment. As per school record, she was 17 ½ years of age and she was on the verge of attaining majority, therefore, in my view she was capable to form rational opinion about her future. She herself chosen to go with the accused to perform marriage with him and left the custody of her parents voluntarily.
22. PW7 Smt. Sangeeta, mother of 'P', in her testimony and stated that her daughter had not gone to school and stayed at home and she had suspected to be taken her daughter by accused but she had not stated that either accused had come to her house or in what manner he take her she has not stated that accused had not taken her daughter from her house.
23. Hence, in these circumstances, PW1 and PW7 have failed to prove any positive act of the accused that he took her from the custody of the lawful guardianship of her parents. If prosecutrix has herself left her home without any persuasion from the accused and accused just accompanied the prosecutrix, it could not be said that he took away her from the lawful guardianship. Therefore, in these circumstances, I hold that the prosecution has failed to prove that the accused committed kidnapping of 'P' and when kidnapping is not proved the offence of kidnapping for the purpose of compelling her for seducing her for illicit intercourse marriage or intercourse punishable u/s 366 IPC also goes. Hence, I also acquit him for offence under STATE VS MUKESH MALIK//SC NO.04/13//FIR NO.399/11// US-363/366 IPC page 13 of page 14 section 366 IPC
24. As far as allegation of rape punishable u/s 376 IPC is concerned, PW1 has categorically stated in her testimony that she had performed marriage with the accused with her own consent and living peacefully with him and has become pregnant, therefore, in these circumstances, the accused had sexual intercourse voluntarily with 'P' her own consent and the prosecutrix being above sixteen years of age is capable to give consent for sex, hence, the ingredients of rape as mentioned in Section 375 is not made out, therefore, I also acquit the accused u/s 376 IPC.
25. In view of the aforesaid facts and circumstances, accused Mukesh Malik stands acquitted for offence in which he has been charged. However, he is directed to furnish his personal bond in the sum of Rs.10,000/ with one surety of like amount in compliance of provisions of Section 437A Cr.P.C. Till then his previous personal bond and surety bond extended.
File be consigned to record room.
ANNOUNCED IN OPEN COURT (SANJEEV KUMAR)
ON 24.10.2013. ADDL. SESSIONS JUDGE 01
(NORTH):ROHINI:DELHI.
STATE VS MUKESH MALIK//SC NO.04/13//FIR NO.399/11// US-363/366 IPC page 14 of page 14