Delhi District Court
State vs Accused on 7 February, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS
JUDGE, (SPECIAL FAST TRACK COURT) KARKARDOOMA
COURTS, SHAHDARA, DELHI
Unique Case I.D. No.02402R0189732011
SC NO. 40/13 Date of Institution :22.10.2011
FIR No.264/10 Date of Argument :06.02.2013
PS Khajuri Khas Date of Order :07.02.2013
U/S 363/366/376 IPC
State Versus Accused
Balbeer
S/o Ram Baran Sharma
R/o E-11/628, Nehru Vihar,
Dayalpur, Delhi-94.
JUDGMENT
The facts in brief of the prosecution case are that on 29.10.2010 at about 2 p.m., accused Balbir kidnapped a minor girl __X__, here in after referred to as the prosecutrix, aged about 16 years, daughter of Late Sh. Shyam Sunder out of lawful guardianship of her brother Sh. ___Y___ without his consent by enticing and adducing her either to compel her to marry with him or to seduce illicit intercourse. Sh. ____Y___ brother of prosecurtix reported the matter to the police on the basis of which FIR No. 264/10 u/s 363 IPC against accused was recorded. He doubted that Balbir and his sister prosecutrix were known to each other and Balbir might have enticed and took her SC No.40/13 State vs. Balbeer Page 1 of 24 away. Wireless telephone message was flashed. Notice regarding missing of prosecutrix was published in newspaper on 11.11.2010. When prosecutrix and accused were passing, brother of prosecurtix saw them. They were apprehended. Accused was arrested and his arrest memo and personal search memo were prepared. The prosecutrix and accused both were taken to GTB Hospital on 12.11.2010. The prosecurtix was medically examined by Dr. Divya and her MLC was prepared. Dr. P.K. Phukan examined accused Balbir and prepared his MLC. Prosecutrix did not give her consent for her internal medical examination. Samples of blood and semen of accused were collected by the doctor and handed over to Ct. Ramkaran who took him for medical examination. The samples were seized by the IO. The prosecurtix was also produced before Ld. M.M. for recording of her statement u/s 164 of the Code of Criminal Procedure, here in after referred to as the Code. The IO after completion of investigation filed a charge sheet against accused for his trial for the offences punishable u/s 363/366 IPC.
2. On appearance Ld. M.M. supplied copies of documents to the accused and committed this case to the court of sessions and it was assigned to Sh. R.P.S. Teji, Ld. Additional Sessions Judge, Karkardooma Courts, Delhi.
SC No.40/13 State vs. Balbeer Page 2 of 243. Vide order dated 01.11.2011 it was opined that a prima facie case u/s 363/366 IPC was made out against the accused, therefore, charge for the said offences against the accused was framed and it was read over to him. He pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined Lady Ct. Pinky as PW1; Smt. ___Z___ sister of prosecutrix as PW2 (incorrectly mentioned as PW1); and Prosecutrix, __X__ as PW3.
5. As prosecurtix in her examination in chief, inter alia, stated that accused committed sexual intercourse with her without her consent, therefore, a separate charge for the offence punishable u/s 376 IPC was framed and read over to accused in vernacular language. He pleaded not guilty and claimed trial.
6. After completion of statement of prosecurtix as PW3, prosecution also examined HC Jagbir Singh as PW4; Lady Ct. Sapna as PW5; Ct. Ram Karan as PW6; Sh. _______Y______ of prosecutrix as PW7; Dr. Divya as PW8; and SI Yogesh Kumar as PW9.
SC No.40/13 State vs. Balbeer Page 3 of 247. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
8. Prosecution also examined Ms. Shuchi Laler, Ld. M.M. as PW10; Ct. Kishan Kumar as PW11; Dr. P.K. Phukan, CMO, GTB Hospital, Delhi as PW12; and SI Anuj Kumar as PW13.
9. After closing of prosecution evidence statement of accused u/s 313 Cr.P.C. was recorded. Accused admitted that he was having love affairs with the prosecurtix and he had also promised to marry her on 28.10.2010. He denied the evidence that he enticed prosecurtix on 28.10.2010 and explained that in fact she herself came to his house and she promised to marry him and therefore, they eloped. He also admitted that they stayed at the house of friend of accused at Bhajanpura but it was explained that they stayed alongwith families. He also admitted that on 11.11.2010 he was arrested and his arrest memo and personal search memo was prepared and thereafter he was medically examined and his samples were taken. He also admitted that the prosecutrix was produced before Ld. M.M. for recording of her statement u/s 164 of the Code SC No.40/13 State vs. Balbeer Page 4 of 24 and that he was correctly identified by the witness. He denied rest of the incriminating evidence put to him and pleaded that witnesses have deposed incorrectly as __Z__ sister of the prosecurtix asked him to get half portion of the plot transferred in the name of prosecurtix. He refused to accept that demand and therefore, he was implicated in this false case. Although accused opted to lead defence evidence yet no evidence in defence of accused was adduced.
10. I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for accused and perused file.
11. It has been argued by Ld. Defence Counsel that there is delay of about 11 days in reporting the matter to the police. It has been established on record that prosecutrix was 19 years of age at the time of alleged occurrence. In the statement u/s 164 of the Code, prosecutirx did not incriminate the accused. There were love affairs between the accused and the prosecutrix. Prosecurtix refused to undergo internal medical examination. There are material contradictions in the testimonies of prosecution witnesses. He submitted that accused is entitled for acquittal.
SC No.40/13 State vs. Balbeer Page 5 of 2412. In support of his arguments, he relied on a case Sonu v. State (NCT) of Delhi, 2010 [2] JCC 1337, wherein Delhi High Court observed that:
"11. Prosecutrix being more than 16 years of age and having accompanied the appellant of her own free will and accord; she being a consenting party, ingredients of the offence under Section 376 IPC are not attracted in this case. Accordingly, appellant is acquitted of the offence under Section 376 IPC.***
13. Prosecurtix having herself accompanied the appellant to his village staying with him for about one week, it cannot be said that appellant had taken her away from the protection of her lawful guardian within the meaning of Section 361 IPC. Reliance is also placed on S. Veradarajan vs. State of Madras, reported in AIR 1965 SC 942.
14. Ingredients of offence under Section 366 IPC are also not attracted in this case in absence of any evidence to show that appellant had taken prosecurtix with him by using force or inducement. The statement of prosecurtix shows that she willingly accompanied the appellant to his village and stayed with him there.
15. Accordingly, I am of the view that no offence under section 366 IPC is made out. Appellant is acquitted of the charges under Sections 363/366 IPC as well."
13. Ld. Defence Counsel further relied on a case, Manish Singh v. State Govt. of NCT & Ors., 2006(1) RCR (Criminal), wherein Delhi High Court observed that:
"9. In these circumstances, continuation of criminal proceedings arising out of FIR No.217/03 under Section 363 IPC Police Station Sarojini Nagar would be an exercise in futility. Besides, it would also be detrimental to the matrimonial life of the couple and of the infant. Lalita being around 17 years of age, on the verge of majority, having SC No.40/13 State vs. Balbeer Page 6 of 24 reached the age of discretion, had accompanied Prabhu of her own volition without any kind of enticement or inducement or force from any one. There was, thus, no taking away or enticing of a minor out of the keeping of a lawful guardian. Essential ingredients of the offence of kidnapping are missing."
14. Ld. Defence Counsel further relied on a case, Sagar Kumar v. State of Haryana, 2011(1) RCR (Criminal) 621, wherein Punjab and Haryana High Court observed that:
"17. Admittedly, the prosecution has not proved any document certificate on record whereby it can be ascertained that the prosecurtix was minor on the day of occurrence. As per the statement of Dr. B.B. Aggarwal, PW2 the prosecutrix was abou 15 ½ to 16 years with variation of up to two years on either side. From the testimony of Dr. Renu Sharma, PW12, the secondary sex charaters of the prosecurtix were found well developed which suggests that the variation as pointed out by Dr. B.B. Aggarwal, deserved to be counted towards higher side of her age. Accordingly, the prosecurtix was more than 16 years of age.***
21. The appellant was also about 18 years of age at the time of occurrence. From the cumulative reading of the facts on record, it appears that both of them had some affair and the prosecutrix eloped with the appellant which is apparent from the material improvements she has made in her statement while deposing before the Court.
22. Resultantly, the appeal in hand is allowed and the appellant is acquitted of the charges framed against him."
15. On the other hand it has been argued on behalf of Ld. Additional Public Prosecutor for the State that prosecution has proved its case and accused is liable to be SC No.40/13 State vs. Balbeer Page 7 of 24 held guilty and convicted.
16. In order to prove its case that accused committed an offence u/s Section 363 IPC, prosecution has to prove firstly, that accused took or enticed the prosecutrix out of keeping of her lawful guardian; secondly, that the prosecutrix was a minor that is under 18 years of age; and thirdly, that it was done by the accused without the consent of her guardian.
17. In order to prove its case that accused committed an offence of kidnapping, abducting or inducing women to compel marriage, etc. punishable u/s 366 IPC, prosecution has to prove firstly that the prosecutrix was either kidnapped or abducted by the accused and secondly, the prosecutrix was abducted and kidnapped with the intention that the prosecutrix may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced to do illicit intercourse.
18. In order to prove its case against the accused for the offence of rape punishable u/s 376 IPC, prosecution has to prove firstly, that sexual intercourse was committed with the prosecutrix; secondly, that sexual intercourse was SC No.40/13 State vs. Balbeer Page 8 of 24 committed with her forcibly against her will; and thirdly that he was the accused Balbeer who committed sexual intercourse with her forcibly against her will. Let us examine the prosecution evidence on these aspects:
19. On perusal of file, scrutinizing and evaluating the evidence and considering the arguments, I come to the conclusion that prosecution has failed to prove its case against accused for the offences punishable u/s 363/366/376 IPC. The reasons which support my decision are firstly that statement of prosecurtix is self contradictory. In her statement made before Ld. Metropolitan Magistrate u/s 164 of the Code, she stated that she was aged about 19 years. On 28.10.2010 she eloped with Balbeer with her own wish who was her lover. They had applied for registration of marriage. Date before previous day was the date for registration. They stayed three days at the house of friend of Balbeer at Bhajanpura. Thereafter, they stayed five days at Begumpur, Rohini. When they came to attend court they were seen by her brother. Balbeer did not make any physical relation with her. They were about to marry. Her family members assured her for her marriage with Balbeer after 8 months. In the court on 13.03.2012, she deposed that at the time of incident she was aged about 17 ½ years. She was having SC No.40/13 State vs. Balbeer Page 9 of 24 love affairs with accused Balbeer who was residing in her neighbourhood. On 28.10.2010 accused Balbeer promised to marry her and suggested to accompany with him. Accused on the pretext of marrying her, eloped with her after enticing her. He did not do any wrong with her. She remained with accused for three days at the house of his friend at Bhajanpura and thereafter they stayed at Begumpur, Rohini for five days. Balbeer used to keep her at different places. On 11.11.2010 she and Balbeer were coming to Dayalpur from Shastri Park but they were apprehended at Khajoori Khas Chowk. Her statement was recorded by the police and her statement was also recorded by Ld. Metropolitan Magistrate. She identified her signatures on the statement recorded u/s 164 of the Code at point A. Therefore, she stated that accused Balbeer had also committed sexual intercourse with her without her consent. Thus, she deposed before Ld. Metropolitan Magistrate that Balbeer did not commit any wrong act with her but in the court at the stage of concluding of her examination in chief she stated that Balbeer also committed sexual intercourse with her. She also deposed differently regarding her age. In the statement u/s 164 of the Code, she disclosed her age as 19 years but in the statement recorded in the court she disclosed her age as 17 ½ years.
SC No.40/13 State vs. Balbeer Page 10 of 2420. Secondly, in cross examination PW3 stated that she studied up to 5th class from Har Prasad Raja Ram Adarsh Inter College at Baha, District Agra, U.P. She was issued certificate from that school and that certificate might be available at her house. That certificate showing her correct age was not filed in the court. She also replied elusively by stating that she did not know the date of birth written in that certificate. This goes in favour of the accused.
21. Section 114 (g) of Indian Evidence Act provides that:
114. Court may presume existence of certain facts.
The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume-- ***
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; ***"
22. As date of birth certificate has not been filed and it was available at the house of prosecutrix, therefore, it is held that contents of date of birth certificate were not SC No.40/13 State vs. Balbeer Page 11 of 24 favourable to the prosecutrix. In other words, it is held that she was not minor as per the date of birth certificate, that is why the said certificate was withheld and it was not filed before this court. This provides benefit to the accused.
23. Thirdly, there are also other evidence on record showing that prosecutrix was not minor at the time of alleged incident. The matter was reported by brother of prosecutrix on 10.11.2010 by recording his statement Ex.PW7/A. Thereafter, wireless telephone message was flashed and notice Ex.PW13/A was published in newspaper, "Dainik Jagran" dated 15.12.2010 on page 10 wherein the date of prosecutrix has been mentioned as 20 years. Thus, three different date(s) has come on record, one is 17 ½ year, other is 19 years and third is 20 years.
24. My attention goes to a case reported as Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, it was inter alia held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."
The principles of law laid down in above case are applicable on the facts of present case and therefore, it is SC No.40/13 State vs. Balbeer Page 12 of 24 held that accused is entitled to get benefit of doubt as in the present case two views, one, leads to the conclusion that prosecutrix was 17 ½ years of age at the time of occurrence and another she was 20 years of age at the time of occurrence are possible.
25. Fourthly, there is no scientific evidence on record to support the prosecution case. As per the statement of prosecutrix recorded by Ld. Metropolitan Magistrate u/s 164 of the Code, accused did not commit any wrong act with her. The prosecutrix was medically examined on 12.11.2010. She did not give her consent for her internal medical examination. Her sister __Z___ who was examined as PW2 was with her. She also did not give consent for internal medical examination of the prosecutrix. Consequently, no scientific evidence could come on record to support the prosecution case that she was in fact raped or the accused committed sexual intercourse with her with or without her consent. This has further created doubt about the genuineness of the prosecution case.
26. My decision support by a case Sanya alias Sanyasi Challan Seth v. State of Orissa, 1993 CRI. L.J. 2784, wherein it was observed by Orissa High Court that:
SC No.40/13 State vs. Balbeer Page 13 of 24"In the absence of any medical opinion which could have corroborated the sole testimony of the prosecutrix, it would not be safe to maintain the conviction. Although it is well settled that the lone testimony of the victim lady can be made the sole basis for conviction and no corroboration is necessary in case the same is accepted as true and free from suspicion, yet as has been mentioned above, because of the inherent defect in presenting the prosecution case, the same is not free from doubt. As has been held in many cases all that is required is that, there must be some circumstance which should not support the version of the victim lady by way of corroboration. But all those elements are lacking in the case. The witnesses are found to be related to each other and there is no independent witness although I find from the materials on record that there were also few others including Sureshwar who were accompanying P.W. 1 but not examined. The medical evidence is also absent with regard to the opinion as to the fact of rape. For the reasons above the conviction is liable to be set aside."
[Emphasis supplied]
27. My decision further finds support by a case Lachhman and another v. State, 1973 CRI. L.J. 1658, wherein the Himachal Pradesh High Court held that:
"It is a very well-settled rule that in rape cases the evidence of the complainant must be corroborated. A charge of rape is a very easy charge to make and a very difficult one to refute, and in common fairness to accused persons, the courts insist on corroboration of the complainant's story. However, the nature of the corroboration must necessarily depend on the facts of each particular case. Where rape is denied, the sort of corroboration one looks for is medical evidence showing injury to the private parts of the complainant, injury to other parts of her body, which may have occasioned in a struggle, seminal stains on her clothes or the clothes of the accused or on the places where the offence is alleged to SC No.40/13 State vs. Balbeer Page 14 of 24 have been committed; and in all cases importance is attached to the subsequent conduct of the complainant. Whether she makes a charge promptly or not is always relevant. (Emperor v. Mahadeo Tatya, AIR 1942 Bom 121 (FB). In Mahla Ram v. Emperor (AIR 1924 Lah 669), also it has been held that where there is no independent evidence in support of the statement of the complainant that she was raped by the accused it would be most dangerous to base a conviction on her uncorroborated testimony alone." [Emphasis supplied]
28. Fifthly, as per statement of brother of prosecutrix ____Y____ Ex.PW7/A the occurrence took place on 29.10.2010. The prosecutrix was admittedly recovered on 10.11.2010. Accused was arrested on the same day. Prosecutrix and accused were medically examined on 12.11.2010. The notice in the newspaper, Dainik Jagran, New Delhi edition of 15.10.2010 regarding search of missing prosecutrix was published. This creates confusion as to why this publication was published on 15.12.2010 when prosecutrix had already been recovered. This further creates doubt about the truthfulness of the prosecution case.
29. Sixthly, there is unexplained delay in reporting the matter to the police. As mentioned above, the prosecutrix eloped with the accused on 29.10.2010. Brother of prosecutrix namely ____Y____ reported the matter to police by making his statement Ex.PW7/A on SC No.40/13 State vs. Balbeer Page 15 of 24 10.11.2010. Wireless telephone message was also flashed on 10.11.2010. There is no evidence on record to show that matter was reported to police and DD Entry to that effect was recorded. There is no explanation in the statement of brother or prosecutrix or sister of the prosecutrix for not reporting the matter to police promptly. This has further created doubt about the truthfulness of the prosecution case.
30. My decision finds support by principles of law laid down in a case Jagdish v. State, (Delhi), 1987(1) R.C.R. (Criminal) 613 : 1987(1) AICLR 465, wherein the Delhi High Court observed:
"8. This inference is further fortified from the delay of 46 hours and 45 minutes in the lodging of the First Information Report after the alleged occurrence. Regarding the importance of the lodging of the First Information Report at the earliest, the Supreme Court authority reported as Thulia Kali v. The State of Tamil Nadu, 1972 S.C.C. (Crl.) 543, is highly instructive wherein it held as follows at page 547 :- "First Information Report in a Criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the stand point of the accused. The object of insisting upon prompt lodging of the report to police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay SC No.40/13 State vs. Balbeer Page 16 of 24 in lodging the first information report quite after results in embellishment which is a creature of after-thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore essential that the delay in the lodging of the first information report should be satisfactorily explained.
9. In that case there was delay of more than 20 hours in lodging the F.I.R. though the police station was only at a distance of two miles and it was held that this circumstance would raise considerable doubt regarding the veracity of the case and it was not safe to base conviction upon to."
31. Seventhly, as stated above, prosecutrix in her statement made to Ld. Metropolitan Magistrate u/s 164 of the Code herself stated that she was having love affairs with accused and she eloped with him. They wanted to marry with each other. They also went to court for registration of marriage but could not do so as they were apprehended. In the court, as PW3, she also deposed that she was having love affairs with the accused who was residing in her neighbourhood. Accused promised to marry her and suggested to accompany him and she went with him. In these circumstances it is unbelievable that she did not go with him voluntarily. Thus on the basis of evidence on record, it is held that prosecution has failed to prove that accused either compelled or forced or by deceitful SC No.40/13 State vs. Balbeer Page 17 of 24 means induced the prosecutrix to accompany with accused. This has demolished the prosecution case.
32. My decision in this regard finds support by a case Uday vs. State of Karnataka, AIR 2003 SC 1639. In that case the prosecutrix was a grown up girl studying in a college. She was deeply in love with the accused/appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to it. She thus freely exercised a choice between resistance and assent. The Apex Court held that:
"The consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a 'misconception of fact'. A false promise is not a fact within the meaning of the Code. There is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. The Court must, in each case, SC No.40/13 State vs. Balbeer Page 18 of 24 consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them"
33. In re, Anthony alias Bakthavatsalu, AIR 1960 Mad 308, it was observed :
"A woman is said to consent only when she agrees to submit herself while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former."
34. The principles of law laid down in case of Uday v. State of Karnataka, (Supra), and In re, Anthony alias Bakthavatsalu (Supra), are applicable on the facts of the present case and therefore, it is held that the prosecution could not prove lack of consent of the prosecutrix or that accused abducted her or made physical relations with her without her consent or on false assurance of marriage.
35. As discussed above, the prosecutrix made inconsistent and self contradictory statements. This further has created doubt about the truthfulness of her testimony.
SC No.40/13 State vs. Balbeer Page 19 of 2436. My attention also goes to a case Ashok Narang v. State, 2012 [1] JCC 482 wherein the Delhi High Court observed that:
"104. If one integral part of the story put forth by witness was not believable, then the entire case failed. It is settled law that where witness makes two inconsistence statements in their evidence either at one stage of both stages, the testimony of said witness becomes unreliable and unworthy of credence and in the absence of special circumstances; no conviction can be based on the evidence of said witnesses."
37. My decision on this aspect further finds support by the principles of law laid down in case of Babu Lal and Others v. State, 1994 JCC 111 wherein, the Delhi High Court observed that:
"10. As far as these appellants, namely Babu Lal, Arjun Das and Leela Ram are concerned, there are material contradictions in the statements of the two injured, Om Parkash and Bhagwan Das who are the real brothers. The other alleged eye witnesses have also contradicted themselves on the most material points and the contradictions cannot be said to be minor and have occurred on account of passage of time. Moti Lal, PW13 on whose statement the case was registered has also not supported the case of prosecution in as much as he has denied that he has seen the incident or he saw these appellants giving injuries to the injured.*** There are serious lapses in the prosecution story in connecting these appellants with the offence. The story put up by the prosecution as far as these appellants are concerned, is unbelievable and doubtful."SC No.40/13 State vs. Balbeer Page 20 of 24
38. My decision on this aspect further finds support by the principles of law laid down in case of a case Labh Singh v. State of M.P., IX-1986(3) Crimes 176, wherein the accused was acquitted for the offence punishable u/s 376 IPC on the ground that there were material contradictions in the prosecution case which were causing doubt on the prosecution story.
39. Eighthly, the accused has succeeded in creating doubt in prosecution case so he is entitled to get benefit of doubt.
40. My decision finds support by the case Ajmer Singh and another v. State of Haryana, II-1989(1) Crimes 424, it was held by P&H High Court that:
"It is not necessary for the accused to substantially prove their plea. Suffice it to say that if the accused succeeds in creating a doubt, they would be entitled to benefit of it."
41. Ninethly the testimonies of other prosecution witnesses are formal in nature e.g. PW1 only handed over the prosecutrix to her sister ___Z___. PW2 who is sister of prosecutrix took her to the hospital. PW4 proved copy of FIR as Ex.PW4/A and rukka as Ex.PW4/B. PW5 took the prosecutrix to hospital for medical examination. PW6 is the SC No.40/13 State vs. Balbeer Page 21 of 24 witness regarding arrest of accused and taking him to hospital for his medical examination. PW7 is another sister of prosecutrix who is also not a witness of incident but witness of recovery of prosecutrix in the company of accused and recording of statement of prosecutrix u/s 161 of the Code. PW2 is the doctor who medically examined prosecutrix. PW9 is IO who is also not a witness of occurrence. PW10 is Ld. Metropolitan Magistrate who recorded statement Ex.PW3/A of prosecutrix u/s 164 of the Code. PW11 is a Constable who took the original tehrir and computer copy and handed over to the IO. PW12 is the doctor who examined the accused. PW13 is another IO who conducted further investigation. Thus, these witnesses are of formal in nature and in the absence of reliable and trustworthy testimonies of the prosecutrix and other material witnesses they are unable to prove the case of the prosecution beyond reasonable suspicion and shadow of doubt.
42. Tenthly the principles of law laid down in Sonu v. State (NCT) of Delhi, (supra), Manish Singh v. State Govt. of NCT & Ors., (supra), and Sagar Kumar v. State of Haryana, (supra), support the arguments of Ld. Defence Counsel.
SC No.40/13 State vs. Balbeer Page 22 of 2443. Eleventhly, the prosecution evidence could not established the ingredients of Section 363 or 366 or 376 IPC.
44. Lastly, it is one of the basic principles of criminal jurisprudence that let hundreds of criminal may go unpunished but one innocent person should not be punished. It would be just fair and appropriate, if accused is given benefit of doubt as the prosecution has failed to prove its case against him beyond any reasonable suspicion or shadow of doubt.
CONCLUSION
45. In view of the above reasons, discussion and evidence on record and particularly discussed here in above, it is held that the prosecution has failed to prove beyond reasonable suspicion and shadow of doubt that prosecutrix was a minor below 18 years of age on the date of occurrence. Therefore, it is held that prosecution could not prove its case against accused for the offences punishable u/s 363 IPC or that accused Balbeer either committed offence of kidnapping, abducting or inducing the prosecutrix to compel her marriage, etc. punishable u/s 366 IPC or committed rape on the prosecutrix punishable SC No.40/13 State vs. Balbeer Page 23 of 24 u/s 376 IPC. Consequently, by giving benefit of doubt to the accused, he is acquitted for the offences punishable u/s 363/366/376 IPC.
46. However, accused is directed to furnish his personal bond for a sum of Rs.25,000/- with one surety of like amount as per provisions of Section 437A of the Code for a period of six months.
47. After furnishing of surety bonds file be consigned to Record Room.
Announced in the Open Court Dated:07.02.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.40/13 State vs. Balbeer Page 24 of 24