Delhi District Court
State vs . Shiv Kumar @ Kallu ; Fir No. 136/10 Page 1 ... on 28 November, 2011
IN THE COURT OF SH. RAVINDER DUDEJA : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 25/10
FIR No. 136/10
P.S. Jahangirpuri
U/S: 363/366 IPC
STATE
Versus
SHIV PRASAD @ KALLU
s/o Sh. Ganesh
r/o village Jyoraha, PS Jujhar Ngr.
Tehsil Lohri, Distt. Charrarpur (MP)
Pre. Add: Jhuggi no. N30/B178,
H4 Block, Jahangirpuri, Delhi
Date of Institution: 09062010
Date of Arguments: 18112011
Date of Judgment: 28112011
J U D G M E N T
1. Prosecution case is that on 24.03.2010, complainant Gautam came at Police Station Jahangir Puri and lodged a missing report of his sister Kumari "C" (name withheld), aged about 18 years. He stated that she had left the house at 1.30 pm on 22.03.2010 telling that she was going to the house of her friend at JBlock but she did not return back. On 17.04.2010, State Vs. Shiv Kumar @ Kallu ; FIR No. 136/10 Page 1 of 19 complainant again came at the police station and gave statement that the age of his sister was 17½ years and that he suspected that Shiv Prasad @ Kallu, who was also residing in his gali, had enticed away his sister. On the statement of complainant, an FIR was recorded under Section 363 IPC. On 26.04.2010, prosecutrix Kumari "C" was recovered from Village Jyorah, PS Jujhar Nagar, District Chhattarpur, Madhya Pradesh and accused was also arrested from there. They were got medically examined. Statement of prosecturix was got recorded under Section 164 Cr. PC wherein she stated that she was in love with accused and had run away with him to his house at Village Jyoraha, PS Jujhar Nagar, District Chhattarpur, M.P where they both got married and that there was no fault of accused. Since prosecutrix was below the age of 18 years, charge sheet was filed against the accused under Section 363/366 IPC.
2. After compliance of Section 207 Cr. PC, case was committed to Sessions Court. Charge under Section 363/366 IPC was framed against the accused to which he pleaded not guilty.
3. In order to prove its case, prosecution examined 13 State Vs. Shiv Kumar @ Kallu ; FIR No. 136/10 Page 2 of 19 witnesses. PW1 is Gautam. He is the complainant. He is the brother of the prosecutrix. He stated that at the relevant time, the age of his sister was 17 years and she was studying in tenth class. He proved DD No. 10A recorded at his instance as Exbt. PW1/E and also proved his statement as Exbt. PW1/A. He stated that on 26.04.2010, he and his mother went to Village Jyoraha, PS Jujhar Nagar, District Chhatarpur, M.P where on their pointing out, police had apprehended the accused Shiv Prasad and recovered his sister.
PW2 is Smt. Gyan Devi. She is the mother of the prosecutrix. She deposed that she was informed by her son that accused Shiv Prasad had enticed away her daughter. She further stated that she along with her son Gautam went to the village of accused at Madhya Pradesh. Delhi Police met them at the police station in the village and from there they along with the police went in search of accused. Accused was found sitting underneath a tree. He was apprehended on their identification and her daughter who was in a nearby jhuggi, was recovered vide memo Exbt. PW1/D. She stated that the age of her daughter at that time was 17 years.
PW3 is Smt. Babita. She is the sisterinlaw of the State Vs. Shiv Kumar @ Kallu ; FIR No. 136/10 Page 3 of 19 prosecutrix. She deposed that on 22.03.2010 at about 1.30 pm, prosecutrix left the house stating that she was going to the house of her friend to collect English grammar notes but did not return back. Despite efforts, she was not traceable. She stated that on 24.03.2010, they went to police station and lodged a missing report and later they came to know that her sister in law had run away with accused Shiv Prasad who was then residing in their neighbourhood.
PW4 is Constable Anita. She is the witness of investigation. She had accompanied the IO ASI Ram Bhau,
Constable Devender Singh, Gyan Devi and Gautam to PS Jujhar Nagar, Madhya Pradesh. She stated that accused and prosecutrix were found standing in front the house. Prosecutrix was identified by Smt. Gyan Devi. Accused was then apprehended by ASI Ram Bhau with the help of Constable Devender and she apprehended the prosecutrix with the help of her mother. She further stated that prosecutrix remained in her custody till she was brought to Delhi.
PW5 is Constable Devender Singh. He had apprehended the accused with the help of ASI Ram Bhau from Village Jyorah.
State Vs. Shiv Kumar @ Kallu ; FIR No. 136/10 Page 4 of 19
PW6 is HC Ram Kumar. On 17.04.2010, he had recorded the statement of the complainant and prepared the Rukka Exbt. PW6/A on the basis of which, Duty Officer recorded the FIR.
PW7 is prosecutrix Kumari "C". She proved her statement under Section 164 Cr. PC as Exbt. PW7/A. PW8 is Dharam Singh. He is the brother in law of accused. He deposed that accused was having an affair with prosecutrix and that on 22.03.2010, he ran away with her. He stated that when he came to know from the brother of the prosecutrix that the prosecutrix was missing from the house, he took him and police to the village of accused at Jyorah in MP but he was not found there. He further deposed that he came to know that after 1015 days, police had apprehended the accused and recovered the girl.
PW9 is Sh. Surender Bhardwaj, Teacher from Government Girls Senior Secondary School, Adarsh Nagar. He produced the admission register of the school and as per the said record, the date of birth of the prosecutrix is 01.04.1992.
PW10 is Sh. Vishal Singh, MM. He had recorded the statement of prosecutrix under Section 164 Cr. PC. State Vs. Shiv Kumar @ Kallu ; FIR No. 136/10 Page 5 of 19
PW11 is HC Rajseh Kumar, Duty Officer. He had recorded the FIR Exbt. PW11/B. On 27.04.2010, he worked as MHCM at Police Station Jahangir Puri and on that day, ASI Ram Bhau deposited two sealed pullandas bearing the seal of MS BJRM Hospital along with the sample seal at the Malkhana.
PW12 is ASI Rajwanti. She had recorded DD No. 10A which is Exbt. PW1/F. ASI Ram Bhau has been wrongly numbered as PW12. He is the Investigating Officer of this case. During investigation, he recorded the statement of the complainant and his family members and made search of the prosecutrix. She stated that on 25.04.2010, he along with Constable Devender and Lady Constable Anita went to PS Jujhar Nagar, District Chhattar Pur, M.P where they met the family members of the complainant. The local police was also joined in the investigation and a raid was conducted in Village Jyorah. Accused and prosecutrix were found standing outside the house of accused. They were apprehended at the instance of the complainant and a recovery memo of the prosecutrix was prepared which is Exbt. PW1/D. Accused was arrested and was produced before the court in Madhya Pradesh and was brought to Delhi after obtaining transit remand. Accused State Vs. Shiv Kumar @ Kallu ; FIR No. 136/10 Page 6 of 19 and prosecutrix were got medically examined but prosecutrix refused to undergo internal examination. He then filed an application in court for the recording of statement of prosecutrix under Section 164 Cr. PC. The age proof was collected from the school of the prosecutrix and on completion of investigation, charge sheet was prepared.
PW13 is Dr. J.P. Palya from BJRM Hospital. He proved the MLC of accused and prosecutrix as Exbt. PW13/A and Exbt. PW13/B.
4. Statement of accused was recorded under Section 313 Cr. PC. He refused to lead any evidence in his defence.
5. Prosecutrix in her testimony deposed that accused had made anal sex with her against her consent and had also performed sexual intercourse with her against her wishes. The learned APP therefore filed an application on 28.07.2011 for framing additional charge under Section 376/377 IPC. Additional Charge was accordingly framed against the accused to which, he pleaded not guilty. State did not lead any further evidence after the framing of additional charge and offered to tender the State Vs. Shiv Kumar @ Kallu ; FIR No. 136/10 Page 7 of 19 witnesses already examined for the purpose of cross examination. However, the learned defence counsel only cross examined the prosecutrix after the framing of additional charges. Supplementary statement of accused was recorded under Section 313 Cr. PC. He refused to lead any evidence in his defence.
6. Arguments have been heard from Ld. APP and Ld. Counsel of accused. I have also gone through the records of the case.
7. The Prosecution has built up its case on the basis that Prosecutrix was less than 18 years at the time of incident and therefore she was not in a position to give consent to the accused to take her away from the custody of her parents. The Prosecution has relied on the admission record produced from the School to prove the age of Prosecutrix.
8. The defence has argued that Prosecutrix was major at the relevant time and there is no convincing evidence on the file to determine her age. It is stated that as per DD no. 10A Ex. PW1/F lodged by the brother of Prosecutrix, her age is mentioned State Vs. Shiv Kumar @ Kallu ; FIR No. 136/10 Page 8 of 19 as 18 years while in the FIR the complainant gave her age as 17 years. It is submitted that no birth certificate of the Prosecutrix has been produced and thus Prosecution has failed to prove that age of the Prosecutrix was less than 18 years. It is stated that Prosecutrix was aged 18 years as mentioned in DD no. 10A and consequently she did not require the consent of her parents to accompany the accused. She voluntarily had gone with accused and that it is not a case of kidnapping.
9. In the case of offence of kidnapping and rape, the primary question for consideration always remains the age of Prosecutrix. The age is most relevant because the age of the Prosecutrix is vital factor to find out if she had the capacity to give consent to go with the accused or to indulge in sexual act.
10. Prosecution has not placed on file the birth certificate of the victim. Her brother deposed in Court that age of Prosecutrix was 17 years while her mother (PW3) stated that age of Prosecutrix was 17½ years at the relevant time. Neither of them gave the date of birth of Prosecutrix. However, PW9 produced the School admission record and as per admission register, the date State Vs. Shiv Kumar @ Kallu ; FIR No. 136/10 Page 9 of 19 of birth of Prosecutrix was 01041992. In crossexamination, PW9 admitted that no date of birth certificate was submitted at the time of admission. However, as per admission form and the last School Leaving Certificate, the date of birth of the victim is mentioned as 01041992. Mother is the best person to tell the age of her child. The admission form Ex. PW9/B was filled up by the mother of the Prosecutrix and therefore I believe that mother of Prosecutrix must have furnished the correct age of her daughter at the time of admission in the school. Thus, Prosecution has proved that date of birth of Prosecutrix was 01041992. The alleged incident took place on 22032010. That being so, the age of Prosecutrix on the date of alleged occurrence was less than 18 years.
11. The Division Bench of our Hon'ble High Court has held in the case of Mahavir Vs. State AIR 1991 JCC 413 that statement of Prosecutrix holds the key in the case of sexual assault. Otherwise, in the present case besides the testimony of Prosecutrix, there is no other evidence of the involvement of accused in the crime. Her testimony is therefore the key in this case. She deposed that accused was her neighbourer and she State Vs. Shiv Kumar @ Kallu ; FIR No. 136/10 Page 10 of 19 was on talking terms with him. At the relevant time, she was th studying in 10 class. Accused telephonically called her at 100 number bus stand at Adarsh Nagar. He then asked her to accompany him for roaming together. She agreed. He first took her in an auto and then in a train to some other place. When she asked the accused for returning back to the house, he refused. He kept her for about a month. He used to threaten that if she refused to live with him, he would kill her brother. She further stated that one day police came at the village and brought her back. According to her, accused had performed sexual intercourse with her against her wish and also had anal sex with her against her consent. She further stated that her statement was recorded in Court u/s 164 Cr. P. C.
12. The Prosecutrix was declared hostile and was cross examined by Ld. APP. She denied that accused had proposed for marriage or that she had refused saying that her parents would not be agreeable. She denied that accused himself came at her jhuggi on 22032010 and induced her to come at 100 number bus stand. She denied that accused asked her to accompany her to the village for marriage. She denied that accused had married State Vs. Shiv Kumar @ Kallu ; FIR No. 136/10 Page 11 of 19 with her in the village. She was confronted with her statement u/s 161 Cr. P. C. where the aforesaid facts are duly recorded. During crossexamination by the defence, she admitted that she had gone for roaming with accused many times. She stated that she was neither threatened nor was under any fear at the time of recording of her statement Ex. PW7/A u/s 164 Cr. P. C. She admitted that she gave the said statement at her own. She admitted that in her statement Ex. PW7/A she stated that she was having a love affair with the accused but it was stated by her that they had decided to get married. She denied having stated in Ex. PW7/A that she was having the feeling that her brother would not be ready for this marriage and therefore she and Shiv Prasad left their respective houses and then went to the house of Shiv Prasad at village Jyorah, Chattarpur, MP. She denied having stated in Ex. PW7/A that they got married at village Jyorah. She denied having stated in Ex. PW7/A that she was in love with accused Shiv Prasad and therefore ran away with him to MP and married with him and resided with him as husband and wife. However, in her statement u/s 164 Cr. P. C. she had stated that there was no fault of accused Shiv Prasad. She admitted that she had neither stated in her statement u/s 161 Cr. P. C. nor u/s 164 Cr. P. C. that State Vs. Shiv Kumar @ Kallu ; FIR No. 136/10 Page 12 of 19 accused had committed sexual intercourse or unnatural sex with her against her wish. She stated that she had once talked with her brother from the phone of accused. According to her, house of accused at village Jyorah was a two room house where his mother and sister were also living. She admitted that she had stayed with accused at the house of his Chacha at Kabarai, Distt. Mahoba for 3--4 days. She admitted that they had stopped at Jhansi and took tea and breakfast there. She stated that she made no complaint to the police at village Jyorah. She admitted that she had not made any complaint of sexual intercourse and anal sex either to the police or to the court or any other authority before her statement in court on 19022011.
13. It is true that a person can be convicted for kidnapping and sexual assault on the sole testimony of the Prosecutrix. However, that statement should be broadly believable to find out if the Prosecutrix was kidnapped and subjected to forcible sexual assault against her wishes. I do not find such facts in the present case.
14. The statement of Prosecutrix does not inspire any State Vs. Shiv Kumar @ Kallu ; FIR No. 136/10 Page 13 of 19 confidence to rely upon it to convict the accused. She has made completely different statements, one u/s 164 Cr. P. C. before Ld. Metropolitan Magistrate and other before this Court. In her statement u/s 164 Cr. P. C. she completely exonerated the accused by saying that it was not the fault of accused. Prosecutrix admitted that her statement u/s 164 Cr. P. C. was given voluntarily without any fear or threat. There are material inconsistencies and improvements in the statements given by the Prosecutrix before the Court from the one given u/s 164 Cr. P. C. The fact that accused had committed sexual intercourse and unnatural sex with her came for the first time from the mouth of Prosecutrix in her testimony in court. She made no complaint about this till the recording of her statement in court. Thus, the allegation of forcible sexual intercourse and anal sex by the accused seems to be an afterthought and is not believable.
15. In the case of Pawan Kumar and Anr. Vs. State and Ors. The Hon'ble High Court held that in order to constitute the offence punishable u/s 363 IPC, there has to be taking or enticing of a minor from the lawful guardianship of her parents/ guardian. If the minor, of her own, abandons the guardianship of her parents State Vs. Shiv Kumar @ Kallu ; FIR No. 136/10 Page 14 of 19 and joins a boy, without any role having been played by the boy in her abandoning the guardianship of her parents and without her having been subjected to any kind of pressure, inducement, etc, and without any offer or promise from the accused, no offence punishable u/s 363 IPC will be made out when the girl is aged more than 16 years and is mature enough to understand what she is doing. Of course, if the accused lays a foundation by inducement, allurement etc., and that influences the minor or weighs with her in leaving her guardian's custody and keeping and going with the accused then it is difficult to accept that the minor had voluntarily come to the accused.
16. If the testimony of Prosecutrix is to be believed, the accused first took her in an auto and then in a train and kept her at his house in village where his mother and sister were also residing. If the accused was taking her forcibly and against her wish, she could have raised alarm and informed the fellow passengers in the train or informed the police in the village. There is no allegation that Prosecutrix was kept confined in a room in the village and had no liberty to move out. She could have reported the matter to any of the neighbourers, to the village Panchayat or State Vs. Shiv Kumar @ Kallu ; FIR No. 136/10 Page 15 of 19 to the police or could have made an effort to escape. She stayed with accused for more than one month but did not lodge any protest and made no attempt to flee. If accused had taken away and kept the Prosecutrix against her consent, he would not have allowed her to talk to her brother from his phone. In Shyam & Anr. Vs. State of Maharashtra, 1995 Crl. L. J. 3974, the Prosecutrix was a teenage girl though she had not touched 18 years of age. She claimed during trial that she was kidnapped under threat. The evidence produced during trial showed that she was seen going on the bicycle of accused. Hon'ble Supreme Court noted that it was not unknown to her with whom she was going and therefore it was expected of her then to jump down from the bicycle or put up a struggle and in any case raise alarm to protect herself. As no such steps were taken by her, Hon'ble Supreme Court felt that she was a willing party to go with the appellant of her own and therefore, there was no taking out of the guardianship. The appellants were acquitted of the charge u/s 366 IPC.
17. In State of Karnataka Vs. Sureshbabu, 1994 Crl. L. J 1216 (1), it was found that the girl went with the accused State Vs. Shiv Kumar @ Kallu ; FIR No. 136/10 Page 16 of 19 voluntarily. It was held by the Hon'ble Supreme Court that the requirement of Section 366 IPC is that taking or enticing away a minor out of the keeping of the lawful guardianship was an essential ingredient of the offence of kidnapping. It was held that in such a case, it is difficult to held that the accused had taken her away from the keeping of her lawful guardian and something more has to be shown in a case of this nature, like inducement.
18. In Mahabir Vs. State 55 (1994) DLT 428, the appellant and the prosecutrix were known to each other. The appellant took the prosecutrix to a place outside Delhi where they stayed for about fifteen days and had sexual intercourse with each other. The appellant was convicted under Section 366 and 376 of IPC. The Hon'ble Court noticed that she had gone to Railway Station, had stood there with the appellant who also went to purchase tickets and then she had travelled with him in a compartment shared by other persons. She had then gone to a house in a tonga and yet she did not lodge any protest and made no attempt to flee despite having ample time and opportunity. The learned Single Judge noted that on the day of reckoning, she surely had crossed mark of sixteen years and since she was all State Vs. Shiv Kumar @ Kallu ; FIR No. 136/10 Page 17 of 19 along a willing party, the appellant was acquitted of both the charges against him. Thus, despite the prosecutrix being less then eighteen years of age, the appellant was acquitted not only of charge under section 376 but also of the charge u/s 366 of IPC.
19. In Piara Singh Vs. State of Punjab 1998 (3) Crimes 570, the High Court found that the prosecutrix was more than sixteen years of age at the time of this incident, though, the case of the prosecution was that she was fourteen years old at that time. Since the High Court came into conclusion that no force was used in having sexual intercourse with him, the appellant was acquitted not only of charge u/s 376 but also of charge u/s 366 and 366A of IPC. In this case also, the Prosecutrix was not found to be more than eighteen years of age.
20. The present case stands on a much stronger footing as the Prosecutrix was on the verge of attaining the age of 18 years. She was only 7 days short of attaining the age of 18 years and was therefore mature enough. She herself has stated in Court that accused had not offered to marry her, thus there was no enticement. The fact that she did not raise any alarm and State Vs. Shiv Kumar @ Kallu ; FIR No. 136/10 Page 18 of 19 made no hue and cry and made no effort to escape from the accused, proves that she at her own abandoned the guardianship of her parents and joined the company of accused.
21. In my view, no offence punishable u/s 363/366 IPC is made out against accused merely on account of his having accompanied the Prosecutrix with her consent. The offence u/s 376/377 IPC is also not made out as no such allegation was made by the Prosecutrix before recording of her statement in court and therefore the said allegation appear to be an afterthought. I am, therefore, of the opinion that Prosecution has failed to prove its case against accused beyond doubt. Accused is accordingly acquitted. File be consigned to Record Room.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT ON 28112011.
State Vs. Shiv Kumar @ Kallu ; FIR No. 136/10 Page 19 of 19