Delhi District Court
State vs . Umesh on 29 January, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 196/2013
Unique Case ID: 02404R0242652013
State Vs. Umesh
S/o Satish
R/o VPO : Salampur Biwi
PS : Saro, Distt.: Karganj
Uttar Pradesh.
(Acquitted)
FIR No. : 321/2012
Police Station : Vijay Vihar
Under Section : 363/366 Indian Penal Code
Date of committal to Sessions Court : 28.11.2013
Date on which orders were reserved : 29.01.2014
Date on which judgment pronounced : 29.01.2014
JUDGMENT (ORAL)
Brief Facts:
(1) As per the allegations, on 24.8.2012 at about 3:00 AM at House No. 01/2, Budh Vihar, PhaseI, Delhi, the accused accused Umesh kidnapped the prosecutrix 'A' (name of the girl withheld being case under Section 363/366 IPC), out of the lawful guardianship of her parents with intent to seduce her to illicit intercourse or to compel her for marriage.
State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 1 of 46
Case of Prosecution in brief:
(2) The present FIR had been registered on the complaint of Suman who alleged that on 24.8.2012 at about 3:00 AM (night) when she woke up to fill water, four persons knocked her door from outside and when she opened the door, those persons caught hold of the hand of her daughter 'A' and pulled her out of the house while they pushed her (complainant) inside the house and put the latch from outside and went away taking her daughter with them. Suman further alleged that she raised an alarm but nobody in the gali came out of their houses on which she called her parents on telephone who came and opened the door from outside and also reported the matter to the police by dialing 100 number.
(3) During investigations, the prosecutrix 'A' was recovered from district Mahapaya Nagar, Uttar Pradesh. Pursuant to a secret information, the accused Umesh was arrested. After completing the investigations the charge sheet was filed in the court.
CHARGE:
(4) Charge under Section 363/366 Indian Penal Code was settled against the accused to which he pleaded not guilty and claimed trial.
State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 2 of 46
EVIDENCE:
(5) In order to discharge the onus upon it, the prosecution has examined as many as fifteen witnesses:
Public Witnesses:
(6) PW5 Suman has deposed that she is residing at O12, Budh Vihar, Phase I, New Delhi along with her family and on the intervening night of 2324.08.2012 she was in her house. According to her, at about 3 AM she got up for fetching water and while she was fetching the water due to some noise her daughter Arti, aged about 17 years also woke up and she went to the Bathroom, while she herself was still in the kitchen having water. She then heard the knocking on the door and on opening the same, she found four persons standing the door who pushed her inside on which she fell down and all those four persons then caught the hand of the prosecutrix and pulled her out after which they latched the door from outside and took prosecutrix with them. Witness has further deposed that she started banging the door from inside and on hearing her cries her eldest son and her husband who were on the first floor came down on which she told them what had happened and she then made a telephone call to her mother who is resident of the same area.
According to her, after about five minutes her mother came and open the latch of the door from outside and she informed her about the State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 3 of 46 incident and they tried to search for her daughter prosecutrix but she could not trace after which her husband made a call at 100 number pursuant to which the complaint was recorded and the FIR was registered. She has proved her written complaint which is Ex.PW5/A bearing her signatures at point A. She has stated that since it was dark, she could not see the faces of those persons. Witness has further deposed that on the next day police visited the spot and prepared the site plan and she also handed over the photograph of prosecutrix to the police and photograph of prosecutrix is Ex.PW5/B. (7) In her crossexamination by Ld. Defence counsel, witness has deposed that at the time the four persons came to their house it was around 2:303AM and the lights inside were switched on. She has stated that there is a 40 Watts bulb which is installed in the varanada and remains on through out a night. According to her, the four boys who had come were in naked faces and it was possible for her to see their face but she could not see their faces when she opened the door. She has explained that her house is constructed on a 25 sq. feet land and all the houses around her house are also built on 25 sq. feet land. Witness has further deposed that all the houses around her house i.e. on right, left, front and back side are occupied. Witness has admitted that if one speaks loudly or shouts inside the house, it can be heard by the neighbors. Witness has stated that the State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 4 of 46 first time she made a call was to her mother and not to the police. Witness has further deposed that no neighbors had gathered on hearing her cries and she did not make a call to the police first and chose to call her mother because even previously she had filed a complaints against some persons i.e. Harish, Parveen and Sunder and she used to make frequent calls to the police. Witness has denied the suggestion that her daughter prosecutrix was major more than 18 years of age at the time of the incident. Witness has denied the suggestion that her daughter / prosecutrix was having an affair with Umesh and had gone of her own due to which reason she never made a call to the police first. Witness has further deposed that she had got the prosecutrix admitted in the school but she cannot tell who had filed the affidavit. She has explained that her daughter / prosecutrix was born in Delhi at home and she had not given any information to the Anganwari or to the Municipal corporation. She admits that she had taken the benefit from the Delhi government in the LADLI Scheme and has further explained that she had taken this benefit in respect of both his daughters i.e. prosecutrix and Geeta who is the younger daughter. Witness has further deposed that she did not give the documents with regard to the said schemes to the police and has voluntarily explained that she has brought the date of birth certificate issued by Government of Delhi on 17.11.1994, which she has placed on record as Ex.PW5/DX1. According to her, the namkaran State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 5 of 46 ceremony of her daughter took place much later i.e. after the rituals of chathi etc. and has voluntarily explained that her name was given at home only and it is the dai who had got this certificate prepared. Witness has further deposed that she did not give all these details to the police when her statement was recorded. Witness has denied the suggestion that she had deliberately concealed these details relating to birth of her daughter / prosecutrix as it would have exposed her lies. Witness has denied the suggestion that she has mention the wrong age of prosecutrix in the school record by giving the wrong year of birth in the information given at the time of admitting her at school. Witness has denied the suggestion that she has given false details to the police regarding the incident as she was not in favour of alliance of prosecutrix with the accused. Witness has stated that prosecutrix is now married and has explained that she was married on 08.02.2013 i.e. after two months of her recovery. Witness has denied the suggestion that prosecutrix was married forcibly by them to a person of their choice after she was recovered.
(8) PW7 Darshan Singh has deposed that he has four children i.e. two daughters and two sons and Ravi is his eldest son, prosecutrix is his second child. According to him on the intervening night of 23/24.08.2012 he was sleeping on the first floor and around 3:00 AM his wife Suman who was on the ground floor came upstairs and told to him whatever happened and whatever she has witnessed. State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 6 of 46 Witness has further deposed that thereafter he came down and tried to open the door but same was bolted from outside, then his wife made a call to his father in law and mother in law who were residing in the vicinity and within 510 minutes of making call by his wife, his in laws came and they opened the bolt from outside and then opened the door. Witness has further deposed that they have told them the entire episode on which his wife made a call at 100 number and police came and made inquiry from them and his wife gave the written statement to them and his statement was not recorded on that day. According to him after 45 days his daughter made a call to him from somewhere and told him on telephone that a case which they have filed previously against Harish and Parveen should be withdrawn and only then they would leave her but he told her that unless they leave her, he will not withdraw the complaint because in case if they kill her after he withdraw the complaint what he will do. He has stated that he did not withdraw the said complaint and prosecutrix was not released.
(9) Witness has further deposed that thereafter 45 days prosecutrix again telephoned him and informed that they were not leaving her and thereafter he filed a complaint against them before Hon'ble High Court where a case against Sunder is pending. According to him thereafter he received a telephone call from Police Station Vijay Vihar and Investigating Officer of the case told him State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 7 of 46 that prosecutrix have been recovered and he did not went to Police Station because he was given beatings earlier by three police personals. Witness has further deposed that on next day he again received telephone from police station where he was informed that they are going to produce prosecutrix in the court on the next day and he appeared before concerned MM where his daughter /prosecutrix was produced and he told to the Magistrate that the age of prosecutrix is less than 18 years but he was not given the custody of his daughter and he was directed by the Magistrate to take the custody of his child from Child Welfare Committee, Sector 1, Rohini and Police recorded his statement.
(10) In his cross examination by Ld. Addl. PP for the State, statement Ex.PW7/PX1 has been read over to the witness which he denies having made so before to the police. Witness has denied the suggestion that his statement was recorded to the effect that on 24.08.2012 his daughter was enticed by accused Umesh who kidnapped her. Witness has denied the suggestion that he was intentionally concealing these facts.
(11) In his crossexamination by Ld. Defence Counsel, witness has deposed that he did not tell the police about the fact that on the intervening night of 23/24.08.2012 he was sleeping on the first floor and at around 3 AM his wife Suman who was on the ground floor came upstairs and told to him whatever happened and whatever State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 8 of 46 she has witnessed. According to him he did not tell the police that thereafter he came down and tried to open the door but same was bolted from outside on which his wife made a call to his father in law and mother in law who were residing in the same vicinity. Witness has denied the suggestion that he did not give this information to the police because no such thing has happened or that he has created this story at a later stage on tutoring. Witness has further deposed that he raised an alarm but no neighbor came to open the door. Witness has denied the suggestion that no alarm was made by him because there was no such incident of bolting the door from outside or coming of any persons to his house or taking his daughter away with them and that is why no neighbor came. Witness has further deposed that he had told to the police in his statement that he raised an alarm but no neighbor came at the spot but when confronted with the statement Ex.PW7/PX1 where it is not so recorded. Witness has further deposed that his statement was recorded after 67 days of the incident. Witness has denied the suggestion that no such incident took place and that is why the same has not been narrated by him in his statement U/s 161 Cr. P.C. which is Ex.PW7/PX1. Witness has further deposed that he had told the police that his daughter had made a call to him and he had also given them the number but he does not recollect from which she had made a call and then states that she had made a call to him on 9640394849 which is in his name and is from State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 9 of 46 Idea and has further deposed that he was not sure of date but it was perhaps on 28.08.2012 and he had given all these details to the police. However, when confronted with the statement Ex.PW7/PX1 where these facts are not so recorded and it is total improvement. Witness has denied the suggestion that he had not given these details to the police or it is for this reason that these facts do not find recorded in his statement Ex.PW7/PX1. Witness has further deposed that he has studied till class 6th and had not made any written complaint to the senior officers of the police. He states that he had seen Umesh coming to the house of his neighbors residing in front of his house on a couple of occasions. Witness has further deposed that he did not entertain any suspicion on Umesh and therefore he did not give his name to the police and has voluntarily explained that he had his suspicion on other persons and he had given their names to the police. According to him he did not give his mobile set to the police to verify the received calls from the log details. Witness has denied the suggestion that he did not give this mobile to the police as he had not received any call and he had now created this story as an after thought. Witness has admitted that when his daughter was recovered she was wearing a saree and appeared to be married. Witness has further deposed that he did not make any complaint to any senior officers regarding beatings given to him by police officers and has voluntarily explained that he was afraid / scared. Witness has further State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 10 of 46 deposed that he also did not get his medical examination conducted after the alleged beating. Witness has denied the suggestion that he did not made any complaint to the senior officers or get his medical done because there was no such incident. According to him he had told his counsel who was pursuing the High Court Writ petition about the incident but he did not inform the Hon'ble High Court about the said beatings and has voluntarily explained that his counsel did not prepare the entry pass from him. Witness has further deposed that he also did not file any application in the said writ petition regarding the said incident of beating and has voluntarily explained that he had no money to file a separate petition. According to him the said writ Petition is still pending disposal in the Hon'ble High Court and his lawyer i.e. Sh. Subhash Chand Saluja, Sh. Manvir Singh, are contesting the same on his behalf. Witness has denied the suggestion that he has deliberately created this incident of beating only to substantiate his case before the Hon'ble High court and that is why he has never mentioned these details either to the police or to the competent MM or to the Delhi High Court. Witness has admitted that even on the day of his deposition before the court he has come to the court along with his private counsel Sh. B.L. Gupta. However, Sh. B. L. Gupta, Advocate has clarified to the court that he is not counsel of the complainant in the Delhi High Court matter and had been recently engaged just a day earlier to evidence and is not aware State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 11 of 46 of the facts of details of either the present case as the file was not given to him by the complainant nor of the previous cases as no such documents were shown to him.
(12) Witness has admitted that his daughter / prosecutrix was not handed over to him by the Ld. MM as she was not willing to go with them and has voluntarily explained that they were asked by the Ld. MM to move the application before the CWC. According to him his daughter was handed over to him after about 1015 days and has voluntarily explained that he was not sure of the date but it was perhaps on 05.11.2012 i.e. after about 2 ½ months of the incident. Witness has denied the suggestion that he did not go to the police station after her recovery by the police even after information of the police to him intentionally because he was very well aware that his daughter had gone with the accused Umesh with her own consent and was staying with him at his native village after getting marry to him. Witness has denied the suggestion that he has deliberately mentioned the wrong year of date of birth of his daughter to seek benefit for her in the various government schemes like LADLI, JachaBacha card etc and education etc. Witness has further deposed that his wife had accompanied his daughter to the hospital where her medical examination was got conducted and has voluntarily explained that it was not in the present case but was in the first case which was got registered by them against other persons. Witness has admitted that State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 12 of 46 he and his wife had also come to the court when statement of his daughter Us/ 164 Cr. P.C. was recorded and has voluntarily explained that they had asked for the custody of their daughter but they were asked to move the application before CWC. Witness has admitted that he and his wife had also gone to CWC to meet his daughter. Witness has denied the suggestion that accused Umesh had no connection with other previous cases pending against other persons in the area i.e. Sunder, Harish and Parveen. Witness has denied the suggestion that he and his wife had put pressure on his daughter and that is why she was sent to the CWC by the Ld. MM. (13) Witness has denied the suggestion that being his daughter prosecutrix was having an affair with Umesh and had gone of her own due to which reason he never made a call to the police at first instance. Witness has further deposed that his wife had got prosecutrix admitted in the school and he cannot tell whether the affidavit was filed or date of birth certificate was given as document of age and his daughter prosecutrix was born in Delhi at Budh Vihar at home. According to him no information was given to the Anganwari or to the Municipal corporation by him and has voluntarily explained that it was given by the Nurse/dai. Witness has further deposed that he had taken the benefit from the Delhi government in the LADLI scheme and has voluntarily explained that he had taken the benefit in respect of both his daughters i.e. State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 13 of 46 prosecutrix and Geeta who is the younger daughter. Witness has further deposed that he did not give the documents with regard to the said schemes to the police and has voluntarily explained that neither the police asked, nor he gave. Witness has further deposed that the namkaran ceremony of his daughter took place much later i.e. after the rituals of chathi etc. and has voluntarily explained that her name was given at home only and it is the dai who had got this certificate prepared. According to him he did not give all these details to the police when his statement was recorded. Witness has denied the suggestion that he had deliberately concealed these details as it would have exposed his lies. Witness has denied the suggestion that his wife has mention the wrong age of prosecutrix in the school record by giving the wrong year of birth in the information given at the time of admitting her at school. Witness has denied the suggestion that he has given false details to the police regarding the incident as he was not in favour of alliance of prosecutrix with the accused Umesh. Witness has denied the suggestion that he was already aware that his daughter had married Umesh and she was regularly telephoning him but he withheld these facts from the Investigating Officer. Witness has admitted that prosecutrix is now married and has explained that she was married on 08.02.2013 i.e. after two months of her recovery. Witness has denied the suggestion that prosecutrix was married forcibly by them to a person of their State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 14 of 46 choice after she was recovered.
(14) PW8 Nek Ram has deposed that he is resident of Village Salempur BB, Police Station Soru, district Kasganj, UP and he is a Pardhan of the said village and Umesh and his father Satish is resident of their village and his father Satish is a pujari in the Mandir and he has two sons i.e. Umesh and Mahesh. According to him the Delhi police came and made inquiries from them regarding a girl and some villagers informed that the girl had come with Umesh and stayed in the house of Dr. Jogender but thereafter had gone away some where. In his crossexamination by Ld. Defence counsel, witness has deposed that he had neither seen any girl with Umesh nor he had seen Umesh.
(15) PW9 Bobby has deposed that he is resident of Village Salempur BB, Police Station Soru, District Kasganj, UP and he is a Pardhan of the said village and residing there with his family. According to him Umesh is the son of his Tau, Satish. Witness has further deposed that the Delhi police had come to the village and made inquiries regarding one girl and he came to know that some girl had come with his cousin Umesh but he neither seen her nor Umesh. In his crossexamination by Ld. Defence counsel, witness has admitted that he had neither seen the accused nor the girl and therefore he cannot give the details.
State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 15 of 46 (16) PW10 Ravi is the brother of the prosecutrix who has deposed that he is residing at O1/2, Budh Vihar, Phase I, Delhi address along with his family. According to him, it was either on 23 September or August, exact he does not recollect of the year 2012 he was sleeping on the roof along with his father when he heard the voices of his mother and also the noise of banging of door and he came down with his father and his mother was crying. Witness has further deposed that she informed them that the door had been locked from outside by somebody who had pulled prosecutrix outside and had taken her away. According to him she could not tell him the details of the person who had taken prosecutrix away and his mother made a 100 number call after which he noted down the complaint in terms of whatever his mother had stated which complaint is Ex.PW5/A and is in his handwriting.
(17) In his crossexamination by Ld. Defence Counsel, witness has admitted that he had not seen any incident and he has written the complaint on the basis of whatever his mother had told him. Witness has admitted that the above complaint Ex.PW5/A does not bear his signatures any where. Witness has further deposed that he had given this complaint to the police in the morning and whatever his mother had disclosed to him he has mentioned everything in the complaint.
State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 16 of 46 (18) PW13 is the prosecutrix 'A'. She has deposed that in the intervening night of 23/24.08.2012 she was at her father's house at B2, Budh Vihar Phase II, Delhi and she had got up for attending to the call of nature while her mother was filling up the water from tap, somebody knocked the door. According to her, when she opened the door, four persons were outside whose names were Harish, Parveen, Umesh and one more person whose name she do not know. Witness has further deposed that accused Umesh whom she has correctly identified and these persons then threatened her and also threatened to kill her family members if she raised an alarm and forcibly put her in an auto / TSR. According to her, thereafter Harish, Parveen came back whereas Umesh and the fourth person took her to some place near Ghaziabad where she was kept for 22½ hours after which Umesh took her to village Kashganj in UP near Aligarh where he kept her for one night. Witness has further deposed that then he took her to Mathura where she was kept for two days and thereafter she was taken to Sadabad near Mathura, UP and there she thinks (shayad) he kept her for about one month. According to her, on 11.10.2012, police reached to Sadabad and while they were taking her through market when she was recovered by police and on 12.10.2012 she was brought to Delhi. Witness has further deposed that thereafter she was sent to Nari Niketan and from Nari Niketan/Asha Kiran her father brought her back. State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 17 of 46 (19) On a leading question by the Addl. PP, the witness has stated that she had also given a statement to Ld. MM previously and has voluntarily stated that she was under fear and pressure when she gave the statement. The said statement is Ex.PW13/A bearing her signatures at point A. (20) In her crossexamination by Ld. Addl. PP for the State, witness has admitted that after she was brought to Delhi by the police, she was taken for her medical examination to Dr. BSA Hospital. Witness has admitted that she had told the doctor who had examined her vide MLC Ex.PW13/PX1 that she had gone with the accused of her own "maine kaha tha, mein apni marzi se gaye hu". Witness has admitted that she had told the doctor that she did not want her internal as well as external examination conducted "mein apne bahri weh andorni janch nahi karana chati hu" as mentioned at point encircled Y. Witness has admitted that thereafter she was produced before the court and the Ld. MM recorded her statement in his chamber where only she and the Ld. MM were present and neither the accused nor her family were present. Witness has admitted that the Ld. MM had asked her if she was under pressure, fear or threat or coercion and she had told him that she was under no fear or pressure only thereafter that her statement was recorded. Witness has admitted that she had told the Ld. MM that she had State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 18 of 46 gone with the accused Umesh voluntarily and had got married to him vide document Ex.PW13/PX2. On the asking of the court, the document Ex.PW13/PX2 was shown to the witness and she identified her signatures at point A and her joint photograph with the accused encircled B and her own photograph at point C. Witness has admitted that this document Ex.PW13/PX2 also bears the signatures of the accused Umesh at point D. Witness has also admitted that this document bears her thumb impressions at point E1 and E2. Witness has admitted that she had told the Ld. MM that she had voluntarily stayed with the accused as her wife for about 1 ½ months and did not want to go back with her father on account of which she was sent to Nirmal Chaya. Witness has further admitted that after about two months she was married with Lalit who had been chosen by her parents. (21) In her crossexamination by Ld. Defence Counsel, witness has admitted she is a witness in a case against Parveen, Harish and Sunder U/s 363 IPC and has voluntarily explained that her parents had lodged this complaint on which FIR No. 187/09 Police Station Vijay Vihar was registered. Witness has further admitted that Parveen, Harish and Sunder has also filed a case against her parents but she was not aware of any other civil or criminal cases pending against her parents and these persons. State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 19 of 46 Witness has admitted that her father's house is situated in a thickly populated residential area and her house as well as adjoining houses are constructed on 25 sq. yards land. Witness has admitted that if there is an alarm or loud voice in one house specially during night, the neighbors can hear the same. According to her, she had raised an alarm at night when she was kidnapped. Witness has admitted that the gali in front of her house is a small gali and TSR does not come there and can only come till the end of the gali. Witness has further deposed that the TSR was parked after about three houses and she had raised an alarm when she was being dragged by these persons and it took about 510 minutes for the accused to drag her outside the house and took her in the auto. Witness has further deposed that she had told the auto driver that she was being kidnapped and has voluntarily explained that the said person also known to the accused. Witness has further deposed that she cannot tell the details regarding appearance of the auto driver. Witness has admitted that there is a police post of Budh Vihar but the accused had taken her through the market. According to her she had raised alarm while passing through the market and she was told by the accused Umesh that they had reached Ghaziabad and has voluntarily explained that when ever accused used to take her any where she used to tell her where she had brought her. Witness has further deposed that it took them one hour to reach Ghaziabad and they had crossed the Yamuna bridge while State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 20 of 46 going to Ghaziabad and they had taken the route of Tihar Jail to reach Ghaziabad. When the court asked the witness to inform if she knows where Tihar Jail was and whether has she visited Tihar Jail previously and the witness explained that her Mausi stays there and that is why she knew its location.
(22) Witness has admitted that large number of police personals are posted on the gate of Tihar Jail and also on the border of Delhi and Ghaziabad and has voluntarily explained that the auto wala was taking her to Ghaziabad at a very high speed. According to her, the auto driver did not stop at the border post nor she made the payment of any toll tax and she had raised an alarm at border when they cross Delhi to enter Ghaziabad and in Ghaziabad she was kept in a house at Seelampur. Witness has further deposed that it was a pakka makan and there was a family staying in the said house and the accused was addressing the lady over there as her bhabhi. She has further deposed that she had told this lady that she had been kidnapped by the accused but did not raise any alarm and has voluntarily explained that the accused did not allow her and threatened her in case if she raised an alarm with the neighbors. She has denied the suggestion that she did not raise any alarm because she had gone with the accused voluntarily. Witness has further deposed that the accused had taken her to her village at Kashganj, near Aligarh by bus and she did not raise any alarm in the bus nor State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 21 of 46 she told the driver, conductor or other person that accused was taking her with him forcibly and they reached Kashganj at night and even at Kashganj she did not raise any alarm and has voluntarily explained that the accused had kept her locked in a room. She has further deposed that she went to Mathura from Kashganj in a bus and she did not raise any alarm even at the bus stand of Kashganj or Mathura bus stand or in the bus and has voluntarily explained that she was under threat by the accused. Witness has further deposed that in Mathura they stayed in a hotel and she did not inform the hotel persons that accused had brought her forcibly. Witness has also admitted that there was a phone in the hotel. Witness has further deposed that she had not taken her mobile phone with her and has voluntarily explained that she had left the same at her home. Witness has further deposed that it was bearing No. 9540394849 which belonged to her father and the mobile number 9971315516 belongs to the accused and she used to make a call to her father. Witness has denied the suggestion that she and her family members were using mobile No. 9711996457 or it belonged to her brother and has voluntarily explained that her brother uses the number 9266141531. Witness has admitted that she had made a call to her parents on their mobile phone and informed them that she had got married with accused Umesh and has voluntarily explained that she was State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 22 of 46 compelled to do so by accused Umesh. Witness has admitted that Umesh provided with clothes and food and has voluntarily explained that the clothes belongs to her Mami and she used to cook the food herself. Witness has further deposed that she only used to do the household work but never went to market/ bazar. Witness has admitted that she used to speak to the accused from the mobile of her father bearing No. 9540394849 and she used to give him a missed calls after which accused Umesh used to make a call to her on which she then used to speak with him for long durations and has voluntarily explained that she used to received threats on the phone that in case if she do not call up, they will kill her and therefore she used to give the missed call. Witness has denied the suggestion that she was having an affair with the accused on account of which she used to give him missed calls and speak to him.
(23) While the witness / prosecutrix was still under examination, she told the court that she wanted to speak to the accused for two minutes after which she will tell the truth to the court but the court declined the request as she was still under cross examination and the Ld. Counsels appearing for the complainant, for the DCW and for the accused and so also the Ld. Addl. PP has objected to the same and the cross examination was continued thereafter.
State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 23 of 46 (24) A question was put to the witness that when she was sent to Nari Niketan and when released from there why she had refused to go with her parents on which the witness explained that since she remained in the company of accused for about one and a half months and she was in fear that her parents may gave her beatings or would not give her any shelter.
(25) Witness has admitted that her parents had met her at Asha Kiran after which she had gone with them. She has further admitted that neither Harish, nor Parveen nor Sunder, nor any other person had come to her house along with Umesh and she had gone with Umesh of her own and neither Harish, nor Parveen nor Sunder had anything to do with the same. She has denied the suggestion that she was more than 18 years of age when she had eloped with the accused. She has admitted that even previously she was coming to the court and has voluntarily explained that it was previous case against Harish and others where she had given her statements. Witness has further deposed that at that time she had given her age as 14 years. Witness has denied the suggestion that even in the early case she had eloped and has voluntarily explained that at that time she was actually raped. Witness has admitted that in the earlier case only Sunder has been convicted and the other two has been acquitted. Witness has denied State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 24 of 46 the suggestion that she and her father are involved into extortion activities or that even in the earlier case, the two accused who has obliged her father has been acquitted and only one accused has been convicted and has voluntarily explained that main allegations were only against one accused whereas the other two used to threatened her. She has denied the suggestion that in the present case as well her father wanted to extort money from the accused in the earlier case as well as the present accused and that is why she has come up with a new story in the court at his instance.
Police / Official Witnesses:
(26) PW1 HC Dharmender has tendered his examinationin chief by way of affidavit, which is Ex.PW1/1 wherein he has relied upon DD No. 9A copy of which is Ex.PW1/A, copy of FIR which is Ex.PW1/B and endorsement on rukka which is Ex.PW1/C. In his crossexamination by Ld. Defence Counsel, witness has denied the suggestion that the entry with regard to the time made in the rukka is incorrect or that the FIR has been anti timed. (27) PW2 W/Ct. Mamta has tendered her examinationin chief by way of affidavit which is Ex.PW2/1 bearing her signatures at point A and B. In her crossexamination by Ld. Defence Counsel, witness has deposed that she think the mother of the prosecutrix was with her when she was taken to the hospital and also when she was State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 25 of 46 brought to the court for recording the statement U/s 164 Cr. P.C. Witness has admitted that the prosecutrix was repeatedly telling her mother and also to the police officials that she had gone with the accused voluntarily of her own and she wanted to remain with him. Witness has admitted that the prosecutrix was repeatedly telling everybody that she is more than 18 years of age and her mother had given the wrong date and year of her birth.
According to her, she cannot tell if she was also saying that her mother wanted to forcibly marry her to some other person and has voluntarily explained that she only know that she did not want to go back with her mother.
(28) PW3 W/Ct. Raj Bala has tendered her examinationin chief by way of affidavit, which is Ex.PW3/1. In her cross examination by Ld. Defence Counsel, witness has admitted that at the time of recovery of prosecutrix, she was repeatedly saying that she had voluntarily married with the accused of her own and she only wanted to stay with her husband i.e. accused Umesh. Witness has admitted that prosecutrix was saying that she is major and is more than 18 years of age. Witness has admitted that the prosecutrix was saying that she was very happy in the company of the accused but she do not recollect her saying that her mother was compelling her to marry some other person of her choice. State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 26 of 46 According to her, at the time when the prosecutrix was recovered she did not appear to be under any pressure and has voluntarily explained that she appeared to be cheerful and also appeared to be newly married as she was wearing a saree, chura, sindoor etc. (29) PW4 Ct. Velayudhan has tendered his examinationin chief by way of affidavit, which is Ex.PW4/1 bearing his signatures at point A and B and he rely upon arrest memo of accused Umesh which is Ex.PX5 bearing his signatures at point A, his personal search which is Ex.PX6 bearing his signatures at point A. In his cross examination by Ld. Defence Counsel, witness has deposed that no disclosure statement of the accused was recorded in his presence. (30) PW6 Suman Lata has brought the summoned record pertaining to admission of Arti, D/o Darshan Singh in their school, i.e. Govt. Girls Senior Secondary School, Avantika. According to the records prosecutrix took admission in their school on 01.04.2008 vide admission No. 5032. Copy of admission and withdrawal register is Ex.PW6/A. According to the witness, prosecutrix took the admission in their school on the basis of school leaving certificate of her previous attended school i.e. Nagar Nigam Prathmik Vidhayala, Phase I, Budh Vihar. Witness has further deposed that the date of birth in her previously school leaving certificate is mentioned as 04.11.1994 and the photocopy of School leaving State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 27 of 46 certificate is Ex.PW6/B. (Original record seen and returned). (31) In her crossexamination by Ld. Defence Counsel, witness has deposed that she cannot tell the document on the basis of which the date of birth was entered in the record of the primary school as the SLC does not specify the same.
(32) PW11 Ct. Narender has tendered his examinationin chief by way of affidavit, which is Ex.PW11/1 bearing his signatures at point A and B and he relied upon the DD No. 48 which is Ex.PW11/A bearing his signatures at point A. This witness was not cross examined by Ld. Defence Counsel, despite opportunity granted.
(33) PW12 Ct. Suresh has tendered his examinationinchief by way of affidavit which is Ex.PW12/1 bearing his signatures at point A and B wherein he has stated that in the intervening night of 23/24 August, 2012 he along with the IO reached the spot. In his crossexamination he has deposed that he along with IO reached the spot at 3:00 AM (midnight) i.e. in the intervening night of 23/24 August, 2012 and at that time only complainant Suman was found present there and no male member was present there. He admits that during the half an hour he stayed there, no male member of the family reached there. He has no knowledge that Suman was into disputes with her neighbours and there was a complaint case pending State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 28 of 46 in which she and her husband were the complainants and the witness. According to the witness, he reached back to the spot after registration of the FIR at around 5:00 AM and even till that time no male members including the husband and son of the complainant Suman was present nor any neighbour had gathered.
(34) PW14 Sh. Ajay Nagar, MM, Rohini Courts, has deposed that on 15.10.2012 he was posted as MM at Rohini Courts. On that day the Ld. Link MM has marked him the application filed by IO SI Sanjeev Dalal for recording of statement of prosecutrix under Section 164 Cr.PC which application is Ex. PX2. The witness has deposed that on the same day he conducted the proceedings under Section 164 Cr.PC which are Ex.PX3 (collectively) and the statement of prosecutrix 'A' is Ex.PW13/A which bears his attestation and signatures point encircled 'A'. According to the witness, after completion of proceedings under Section164 Cr.P.C. the IO filed an application for obtaining the copy of the proceedings which application is Ex.PX4 which application was allowed vide his order at point X bearing his signatures at point A and after the proceedings were concluded the same were directed to be put in a sealed cover.
(35) In his cross examination the witness has deposed that before recording the statement he had ensured that the prosecutrix was making the statement voluntarily and was not under any State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 29 of 46 pressure, fear or influence. According to the witness the prosecutrix had repeatedly told him that she wanted to go with her husband i.e the husband Umesh and not with her parents. (36) PW15 SI Sanjeev Kumar has deposed that on 24.8.12 he was posted at Police Station Vijay Vihar as Sub Inspector and on that day he was in the area of the Police Station Vijay Vihar in connection with some call and there at about 3:00 AM he received telephonic information from the Duty Officer regarding DD No. 48. According to him, as such he along with Ct. Suresh who was already with him reached at H.No. O1/2,Budh Vihar, Phase1 and there Suman W/o Darshan Singh along with 23 other persons met him. Witness has further deposed that Suman handed over him a written complaint regarding kidnapping of her daughter 'A' Ex.PW5/A and he made his endorsement on the statement /complaint of Suman and prepared the therir Ex.PW15/A signed by him at point X and handed over the same to Ct. Suresh. Witness has further deposed that he went to Police Station Vijay Vihar and after getting the FIR registered, came back at the spot and handed over him copy of FIR and original tehrir and he prepared the site plan Ex.PW15/B signed by him at point X at the instance of Suman. Witness has further deposed that he collected the photograph of 'A' Ex.PW5/B from the complainant Suman and thereafter he passed the information State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 30 of 46 regarding kidnapping of 'A' on Zipnet, to missing persons squad. He has further deposed that he collected the documentary proof of age of 'A' from Govt. Girls Secondary School, Avantika, Rohini, Delhi and he made inquiries from alleged persons namely Harish and Parveen. (37) According to him from secret sources he came to know that prosecutrix was in touch with one Umesh and used to talk to him on telephone no. 9971315516 from the cell phone of her father bearing no. 9540394849 and he obtained the CDR of cell phone no. 9540394849 and found that there were number of calls of long duration between these two cell phones even at odd night hours. Witness has further deposed that on verification the address of said Umesh was found to be of village Salempur, Biwi, Kashganj, U.P. and on 31.8.12 he alongwith other police staff conducted a raid at the above mentioned residence of Umesh but he was not found there and he confronted one Nekram and Bobby residents of the said village with the photograph of prosecutrix 'A' and they informed him that the said girl was with Umesh on 27.8.12 when Umesh had visited the said village. Witness has further deposed that he recorded the statements of witnesses and came back to Police Station Vijay Vihar. (38) Witness has further deposed that on 12.10.12 he received a telephonic call from an unknown person that prosecutrix is present in Police Station Shadabad, Distt Mahamaya Nagar, U.P. and after receiving this information he alongwith WCt. Raj Bala reached at State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 31 of 46 Police Station Shadabad and from there they took prosecutrix with them and came back to Police Station Vijay Vihar. According to him on 13.10.12 he recorded the statement of prosecutrix and also moved an application before the Court for recording of her statement U/s 164 Cr.P.C.
(39) Witness has further deposed that pursuant to the secret information, accused Umesh present in the court (correctly identified) was arrested on 13.10.13 at 9.30p.m. from near old Police Chawki, Budh Vihar, Phase1 vide arrest memo Ex.PX5 and his personal search was conducted vide memo Ex.PX6. Witness has further deposed that accused produced the documents pertaining to his marriage with prosecutrix and same were made part of record and thereafter the sections of law i.e. 363/366 IPC were substituted in place of Sec. 365 IPC and accused was produced before the court on 14.10.13 and was remanded to judicial custody. Witness has further deposed that on 15.10.13 he got the statement of prosecutrix recorded U/s 164 Cr.P.C and thereafter he prepared the charge sheet and filed the same in the Court.
(40) In his crossexamination by Ld. Defence Counsel, witness has admitted that in the initial investigation the neighbours did not confirm the allegations made by the parents of the prosecutrix. Witness has admitted that the inquiry from the neighbours confirmed that the prosecutrix had herself eloped with State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 32 of 46 one of the boy residing in the neighbours. Witness has further deposed that her parents however keep on insisting that neighbor Harish and Praveen were responsible and had kidnapped her. He has admitted that the place where the house of the prosecutrix is situated is a small gali with large number of houses in the neighborhood and lot of people sleep outside during the summer season. Witness has admitted that even on 24.8.12 he came to know that large number of persons of the gali used to sleep outside the house and he made inquiries from them but they did not confirm of having seeing or hearing anything. According to him he came to know that the prosecutrix was maintaining a mobile phone and has voluntarily explained that her parents did not disclose this fact to him and he came to know about it on making the inquiries from the school when he came to know that she was regular in touch with her parents. He has deposed that it was also reflected from the call record of the parents of the prosecutrix that on the very next day of her elopement she had contacted her family by using the mobile of the father of the accused Umesh. Witness has admitted that when the prosecutrix was recovered from Police Station Shadabad, Distt. Mahamaya Nagar, U.P. she was reluctant to accompany them to Delhi and claimed that she was married to the accused Umesh and staying with him voluntarily and with her own consent and has voluntarily explained that she also refused to get her internal examination conducted when State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 33 of 46 she was taken for medical examination and also refused to go back to her fathers house and was then sent to Kasturba Gandhi Trust by the CWC where she gave the name of the accused as her husband and refused to gave the name of her father. Witness has admitted that when they came to know about the whereabouts of the prosecutrix from their own sources her parents refused to accompany them to U.P. and they had to go there of their own and has voluntarily explained that they had refused to give any cooperation to them. According to him when the medical examination of the prosecutrix was conducted they had called the mother of the prosecutrix but she refused to come and also when she was produced in the Court for her statement U/s 164 Cr.P.C. her mother was informed but her mother refused to come to the court. Witness has admitted that when the prosecutrix was recovered she did not appear to be under any pressure or stress and also appeared to be married and has voluntarily explained that she was wearing a sari, sindoor and choora and she was repeatedly telling the lady Ct.Raj Bala that she was married and wanted to stay with her husband. Witness has further deposed that he did not get the document on the basis of which the date of birth was given by the parents to the school checked and has voluntarily explained that he did not find any documentary record of date of birth and it was mentioned in the school record that the date of birth was mentioned on the school record on the basis of what was stated State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 34 of 46 by the parents of the child. Witness has admitted that the prosecutrix at the time of her recovery was repeatedly saying that she is a major and her parents have deliberately shown her as a minor for purposes of getting benefit from the govt and has voluntarily explained that she also showed him, her declaration of marriage duly notarized showing her marriage with the accused where she is shown to be major aged 19 years which declaration is Ex.PX2. Witness has admitted that soon after her recovery when the prosecutrix went back to her parents house they got her married with another person of their choice and she is now residing with her husband.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
(41) After completing the prosecution evidence, statement of accused was recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material was put to him which he has denied.
(42) The accused has stated that he is innocent and has been falsely implicated in this case. According to him he is not aware about the date of birth of the prosecutrix. He has stated that he and the prosecutrix were having a love affair on account of which she herself eloped with him on 2324.8.2012 and at that time she told him that she was a major i.e. more than 18 years of age. According to him, on the intervening night of 2324.8.2012 prosecutrix made a State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 35 of 46 telephone call to him and called him outside the gali on which he went there and then she informed him that her parents had come to know about their affair and she pressurized him to take her anywhere. The accused has further stated that in this he took her at the house of his relatives Budh Vihar where they stayed overnight and in the early morning they sent to Seelampur where his relatives were residing and thereafter he took her to his native village and on 11.9.2012 they got married after which they started residing at husband and wife at the village of is Mama at Shadabad. According to the accused, the prosecutrix had informed him that she was aged about 19 years which fact she had even mentioned in her affidavit which is Ex.PX2.
FINDINGS:
(43) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel for the accused and also considered the testimonies of various witnesses examined by the prosecution. My findings are as under:
(44) At the very outset, in so far as the identity of the accused Umesh is concerned, it is not disputed. He has been correctly identified in the court by the prosecutrix. Even otherwise he does not dispute his identity.
State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 36 of 46 (45) Secondly in so far as the age of the prosecutrix is concerned, the case of the prosecution is that on the date of incident she was a minor (seventeen years nine months) her date of birth being 4.11.1994. Her school record has been duly proved by the Principal of the school Mrs. Suman Lata (PW6) showing her date of birth as 4.11.1994. The witness (PW6) has proved the said entires in the record but is is writ large from the above that the said entries have been made on the basis of the information given by the parents of the prosecutrix. The Investigating Officer (PW15) has stated that he has not made inquiry regarding the correctness of these entries and has voluntarily added that it was on the basis of the information given by earlier information given by the parents of the prosecutrix and hence assuming that the date of birth of the prosecutrix 'A' is 4.11.1994, it is apparent that at the time of incident when she had gone with the accused she was aged about 17 years 9 months at the time of her elopement and when she returned in the month of October 2012, she was aged around 17 years 11 months.
(46) Thirdly it is borne out from the testimony of the prosecutrix 'A' that initially she came up with absolutely new story with regard to her kidnapping by her neighbour including the accused and also denied that she had voluntarily gone with the accused on account of her love affair but later she broke down in her cross examination and admitted that she was having an love affair State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 37 of 46 with the accused Umesh and had voluntarily gone with him which facts she had also disclosed to her parents on telephone. She has also admitted that after she was recovered, she refused to go with her parents and therefore she was sent to Nari Niketan and has explained that she was scared of her parents as she had stayed with the accused for about one and a half month.
(47) Fourthly the prosecutrix has also admitted that she did not permit her internal examination and did disclose to the doctor about any criminal force being used upon her and rather at the time of her medical examination, the prosecutrix of her own insisted upon giving the name of accused Umesh as per husband rather than giving the name of her father.
(48) Fifthly even before the Ld. MM in her statement under Section 164 Cr.PC the prosecutrix informed the Ld. MM about her relationship with the accused and the fact that she had gone with the accused of her own and also stayed with him as his wife and did not want any action against him. The Ld. MM Sh. Ajay Nagar has been examined as PW14 and has admitted that the prosecutrix while making her statement under Section 164 Cr.PC did not appear under any fear and has made statement voluntarily which statement was recorded by him vide Ex.PW13/A wherein she had informed that she had gone with the accused Umesh with her own and was residing with him.
State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 38 of 46 (49) Sixthly the prosecutrix has further admitted that even previously she had been appearing in the court in the other case and has explained that earlier there was some incident when her parents had lodged a complaint on which an FIR under Section 187/09 was registered at Police Station Vijay Vihar against the accused Parveen, Harish and Sunder under Section 363/376 IPC. She has also explained that in the said case, two accused have been acquitted whereas Sunder had been convicted but she has denied the suggestion that she and her father were involved in extortion activities by filing false rape cases against various persons. (50) Seventhly on 12.10.2012 she was recovered from the house of the accused and it is also evident that after she was brought to Delhi and taken to the hospital for her medical examination, she did not consent for internal examination and herself gave the name of accused Umesh as her husband rather giving the name of her father. (51) Eighthly the Investigating Officer (PW15) has also in his crossexamination explained that even when the prosecutrix 'A' was sent to Kasturba Gandhi Trust by the CWC, she had been refusing conceding to give the name of her father and has given the name of accused as her husband. He has further explained that the prosecutrix throughout was insisting that she was a major and had married the accused of her own and in this regard she has placed her reliance upon the declaration Ex.PX2 bearing her signatures. State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 39 of 46 (52) Ninethly assuming for a moment that whatever the complainant i.e. the mother of the prosecutrix, her father and so also the prosecutrix have now stated before this court is correct, even then the circumstances as they emerge from record, do not confirm the said versions which even otherwise does not appear probable. It is not possible that four persons would enter into the house of the prosecutrix situated in a thickly populated residential area, kidnap the young prosecutrix in the presence of her mother and other family members and no alarm would be raised or no call would be made to the police at the first instance. It is also strange that despite there being sufficient light in the room, the complainant who is the mother of the prosecutirx, does not give the identity of such kidnappers at the first instance despite the fact that she before the court claims that they were her neighbours who were involved in the earlier criminal case. It is also strange that the prosecutrix who is at the verge of attaining majority, despite sufficient opportunity raises no alarm nor seeks help. The claims so made by the complainant who is the mother of the prosecutrix and her father are highly suspicious and makes the version of kidnapping doubtful but rather on the contrary confirms the falsity of the said claims made by the parents of the prosecutirx. It is unbelievable that a mature girl who was at the verge of attaining majority did not raise any alarm despite the fact that there was sufficient opportunity for her to have done so and to State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 40 of 46 have made attempts to save herself, which she did not do. It is this conduct of the prosecutrix, which raises a needle of suspicion on the claims made by the complainant regarding kidnapping. Reference in this regard is also being made to the case of "Sunil Vs. State of Government of N. C. T. Delhi, decided on 25.5.2008 by Hon'ble Ms. Justice Aruna Suresh, Delhi High Court and Sonu Vs. State (NCT of Delhi) 2010 (3) Crimes: 42 (Delhi), where under similar circumstances the benefit of the same is given to the accused. (53) In view of the above, it is difficult to hold that the accused had taken away the prosecutrix from the lawful guardianship of her parents by using force and inducement upon her, since it is writ large that the prosecutrix had herself gone with the accused, rather she accompanied the accused and stayed with him. (Reference is being made to the cases Krishan Kumar Malik Vs. State of Haryana, reported in 2011 AIAP (Criminal) 604, Supreme Court and S. Varadarajan Vs. State of Madras, AIR 1965 Supreme Court 942 (V 52 C 150).
(54) Lastly W/Ct. Rajbala (PW3) and so also the Investigating Officer SI Sanjeev Kumar (PW14) in whose presence the prosecutrix was recovered, have corroborated each other to the extent that when the prosecutrix was recovered, she was wearing sari and sindoor on her head claiming that she had married with the State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 41 of 46 accused. In fact the Investigating Officer has stated that the parents of the prosecutrix were most noncooperative during the investigations and it was only when he put the mobile phones of the prosecutrix and her parents on tracking that he came to know that she was in contact of her parents through the mobile of the father of accused and later when he (IO) himself informed her parents regarding the presence of prosecutrix at Shadabad, District Mahamaya Nagar, U.P., the refused to accompany him, thereby establishing that the testimonies of the parents of the prosecutrix are not reliable and impels me to conclude that the case in hand in fact is of elopement of the prosecutrix aged 17 years 9 months with accused Umesh and not of kidnapping as is made out to be.
(55) In so far as the aspect of consent of the prosecutrix is concerned, I may observe that in the case of S. Varadarajan Vs. State of Madras reported in AIR 1965 Supreme Court 942 (V 52 C
150) the Hon'ble Supreme Court had observed that:
"........ she was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. 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 of herself and acting on her own than perhaps an illiterate girl hailing from a rural area......."
State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 42 of 46
(56) In the present case the prosecutrix 'A' was Seventeen Years and Nine Months of age at the time of the elopement and Seventeen Years Eleven Months of age at the time of her recovery and was at the verge of attaining majority. Even previously she had been involved in another similar case bearing FIR No. 187/09 Police Station Vijay Vihar where allegations under Section 363/376 IPC have been made against three other neighbours residing in the same area. It has been established that the prosecutrix of her own will had gone to the house of accused Umesh and stayed at his house for about more than one and a half months. Since the prosecutrix 'A' refused to get her internal examination conducted, therefore there is neither any allegations nor any medical evidence to confirm the aspect of making of physical relations.
(57) From the evidence which has come on record the facts which now emerge confirm that the prosecutrix 'A' aged about 17 years and 10 months (at the time of her recovery) and the accused Umesh were in love and there being an opposition to their affair by the family of the accused, they decided to get married which unfortunately did not happen. On the complaint of the mother of the prosecutrix 'A' namely Suman, the case was registered since the prosecutrix was below 18 years of age. The prosecutrix 'A' initially refused to go with her father and was sent to Kasturba Gandhi Trust. State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 43 of 46 (58) There was no exploitative situation on the part of the accused. Rather, the misuse and abuse of legal process if any was on behalf of the complainant i.e. mother of the prosecutrix who came in the way of the marriage between his young daughter and the accused and in order to compel her to fall in line with his dictates and marry a person of his choice for which he got instituted these legal proceedings against the accused. Our Legal System is most unfair to the youngsters in love and it is ironical indeed that the Statutory Laws in our country is without any just exception and criminalize innocent love. A hardened criminal involved in serious crimes such as Rapes, ManSlaughter, Dacoity etc. is treated at par with the one who is punished for falling in love with a woman at the verge of attaining majority. This happens only because the existing Statutory Laws of our Country do not providing for any Window Period in case of elopement of youngsters (where the girl is a minor) where there is a non exploitative situation. Under the given circumstances, nobody stands to gain if the Court takes a strict hypertechnical view. Exceptions and allowances have to be made while considering the age of consent/ protection keeping in view the changing social attitudes and social sensibilities and the situation particularly in Rural India where early marriage is a norm and acceptable in diverse cultures and religions and particularly where the age gap between the youngsters are within the acceptable limits and no exploitative State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 44 of 46 coercive situation is reflected.
(59) This being the background and the prosecution having failed to establish and prove the allegations against the accused and having failed to bring on record any evidence against him either ocular or circumstantial or medial or forensic or any other evidence to connect him conclusively to the commission of the offence, benefit of doubt is being given to the accused Umesh who is hereby acquitted of the charges under Section 363/366 Indian Penal Code. He is on bail. His surety be discharged as per rules. (60) However, before ending, I may observe that from the evidence on record it has emerged that the complainant Suman who is the mother of the prosecutrix and Darshan Singh the father of the prosecutrix had not only deliberately furnished incorrect information to the police regarding kidnapping of prosecutrix by four persons knowing the same to be the false and also mislead the Investigating Officer and tried to implicate persons i.e. Harish, Sunder and Praveen who had no concern with the incident only because they were into a litigation with them earlier but also made false statements on oath in this regard before this Court and this they did knowing that their daughter the prosecutrix 'A' had voluntarily eloped with Umesh and was in contact with them on their mobile phone which information also they deliberately concealed from the Investigating Officer. This is an offence punishable under Chapter IX of IPC (Of false State Vs. Umesh, FIR No. 321/12, PS Vijay Vihar Page 45 of 46 evidence and offences against Public Justice). I hereby direct the SHO concerned to register an FIR under appropriate Sections / provisions of law and cause investigations of the same as per law which registration should be within 48 hours of receipt of copy of this judgment, under intimation to this court. One copy be placed before the Illka Magistrate, through the CMM concerned for purposes of compliance.
(61) File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 29.01.2014 ASJ (NW)II: ROHINI
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