Delhi District Court
State vs . Sher Singh on 16 September, 2013
State Vs. Sher Singh
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 05/11
ID No. : 02401R0613742010
FIR No. 120/10
PS : Patel Nagar
U/s: 363/366A/366/368/120B IPC
State
Versus
Sher Singh
S/o Sh. Avtar Singh
R/o T-2529/B, Gali No. 21-A
Baljeet Nagar,
New Delhi
.........Accused No. 1
Sh. Avtar Singh
S/o Sh. Badal Singh
R/o T-2529/B, Gali No. 21-A
Baljeet Nagar,
New Delhi
(Discharged vide order dated 12.10.2011)
...............Accused No. 2
Date of Institution : 01.11.2010
Date of committal : 01.02.2011
Date of Judgment reserved on : 04.09.2013
Date of judgment : 16.09.2013
SC No. 05/11 Page 1 of 22
State Vs. Sher Singh
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Raj K. Ruhil, Advocate, counsel for the accused.
J U D G M E N T:-
1. Briefly stated facts of prosecution case are that on May 25, 2010 Virender Kumar Pandey got recorded his statement (Ex.PW2/A) at Police Station Patel Nagar alleging that his daughter Nisha Pandey aged about 15 ½ years had left from the house on May 20, 2010 at about 3.30 PM after stating to her mother that she was going to market to buy vegetables but since then she did not return to the house. It was alleged that he had suspicion that his daughter had been kidnapped by the accused Sher Singh. On his statement, an FIR for the offence punishable under Section 363 IPC was got registered. Later on, on July 04, 2010 complainant made a supplementary statement stating that accused Sher Singh had kidnapped his daughter with an intention to marry with her, accordingly, Section 366A IPC was added. Thereafter, on July 16, 2010, a registered letter was received to the SHO wherein victim informed the SHO that she was in love with the accused and she had married with the accused. As victim was minor, Section 368 IPC was also inserted. It was alleged that on July 7, 2010, victim appeared before the Court of Sh. Ashu Garg, learned Metropolitan Magistrate and got recorded her statement under Section 164 Cr. P.C. (Ex.PW4/D) wherein she alleged that she was in love with the accused and she had married with the accused on June 06, 2010 and since then she was residing with the accused as his wife. She further alleged that her parents were against the said marriage and further stated that she was not forced by the accused to solemnise the marriage and accused had not committed any galat kaam with her and she had maintained physical SC No. 05/11 Page 2 of 22 State Vs. Sher Singh relations with the accused of her own free volition. She also alleged that she did not want to go with her parents as she had apprehension that they would kill her.
2. After completing investigation, challan was filed against the accused Sher Singh and his father Avtar Singh for the offence punishable under Section 363/366/366A/368/120B IPC.
3. After complying with the provisions of Section 207 Cr. P.C. case was committed to the Court of Sessions on January 17, 2011. Thereafter, case was assigned to the learned Predecessor of this Court on January 31, 2011. Accordingly, case was registered as Sessions Case No. 5/11.
4. Vide order dated October 15, 2011, accused Avtar Singh was discharged from all the charges. However, a charge for the offence punishable under Section 363/366 IPC was framed against the accused Sher Singh to which he pleaded not guilty and claimed trial.
5. In order to bring home the guilt of accused, prosecution has examined as many as following 13 witnesses:-
PW1 Const. Rajesh, duty officer, proved the FIR (Ex.PW1/A).
PW2 Virender Kumar Pandey, father of the victim.
PW3 Preeti Pandey, mother of the victim.
PW4 Nisha Pandey, victim.
PW5 Rajender Rai, friend of PW2.
PW6 Jasbir Kaur, Assistant Teacher, proved the date
SC No. 05/11 Page 3 of 22
State Vs. Sher Singh
of birth of victim.
PW7 S.I. Rishi Pal, duty officer, proved the FIR
Ex.PW1/A.
PW8 Conts. Dharambir, proved the arrest of accused
Avtar Singh.
PW9 Lady Const. Reena, formal witness.
PW10 Harish Chander, Sub-Registrar, Birth & Death,
proved the date of birth of victim.
PW11 S.I. Ganesh Kumar, investigating officer.
PW12 Dr. Puja Pathak, proved the MLC of victim.
PW13 Dr. Dinesh Singh, proved the ossification test
report of victim.
6. On culmination of prosecution evidence, accused was examined under Section 313 Cr. P.C. wherein he denied all the incriminating evidence and submitted that he has been falsely implicated in this case. He took plea that he had given ` 4,000/- to the father of victim and when he demanded the said loan, he did not return the same and threatened him if he demanded the said amount again, he would falsely implicate him. Accordingly, complainant had falsely implicated him in this case. However, he failed to lead any evidence in his defence.
7. Learned counsel appearing for accused sagaciously contended that prosecution case is based on the sole testimony of PW4 Nisha Pandey. It was submitted that PW4 was examined by the investigating officer. During investigation, her statement was also got recorded under Section 164 Cr. P.C. but she did not utter even a single word against the accused at both the occasions. However, when she entered the witness box, she attempted to set up a new case alleging that SC No. 05/11 Page 4 of 22 State Vs. Sher Singh she was enticed by the accused and thereafter she was kidnapped. She further deposed that accused had pressurized her for marriage. Initially, she deposed that she had not maintained physical relations with the accused but later on she deposed that she had maintained physical relations with the accused after marriage. It was contended that since the testimony of PW4 is contrary to her previous statements recorded by the investigating officer and under Section 164 Cr.P.C, no reliance should be placed on her deposition. It was submitted that other witnesses are not relevant to prove the culpability of the accused. It was contended that there are sufficient evidence on record to establish that victim had disclosed her age as 18 years and above before various authorities and there is nothing on record which may suggest that accused had any reason to disbelieve the claim of victim. It was contended that since victim herself represented 18 years before various authorities, accused could not kidnap her and there is no allegation that accused had abducted the victim. It was further contended that victim herself had left from her house by intimating her mother that she was going to buy vegetables whereas she did not go to market rather as per her deposition, she accompanied the accused and there is nothing on record which may suggest that accused had enticed the victim in any manner.
8. Per contra, learned Additional Public Prosecutor contended that since victim was between 15-16 years at the time of alleged incident, accused is liable for the offence punishable under Section 363 IPC as he had enticed the victim to leave her house without the consent of her parents. It was further contended that since accused married with the victim against her consent and will, accused is also liable for the offence punishable under Section 366 IPC. In support of his contention, no case law was cited by the learned Additional Public Prosecutor.SC No. 05/11 Page 5 of 22
9. I have heard rival submissions made by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
10. In order to prove the guilt of accused for the offence punishable under Section 363 IPC, prosecution is duty bound to fulfil the ingredients of kidnapping as defined under section 361 IPC and same runs as under:-
"Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
(emphasis supplied)
11. To prove that accused had kidnapped the victim, prosecution has to establish beyond the shadow of all reasonable doubts that accused had either took the victim or enticed her in any manner knowingly or having reason to believe that victim was minor i.e. below 18 years of age. Unless prosecution establishes that accused knew or had reason to believe that victim was below 18 years of age, prosecution would not be able to prove the guilt of accused for the offence punishable under Section 361 IPC.
12. Mens-rea is an important fact to constitute an offence. In the absence of mens-rea, it will not be possible for the prosecution to bring home the guilt of the accused. To prove mens-rea on the part of accused, prosecution has to establish beyond the shadow of all reasonable doubts that accused either knew or having reasons to believe that the victim was SC No. 05/11 Page 6 of 22 State Vs. Sher Singh below 18 years of age and despite that he either took the victim or enticed her out of her lawful guardianship without the consent of her guadians.
13. Once prosecution succeeds to establish the ingredients of Section 361 IPC. Prosecution will be required to establish following facts to bring home the guilt of accused for the offence punishable under Section 366 IPC:
(i) That accused had kidnapped the victim with an intention that she might be compelled or knowing it to be likely that she would be compelled;
(ii) to marry any person against her will; or
(iii) In order that she may be forced or seduced to
illicit intercourse; or
(iv) knowing it likely that she will be forced; or
(v) she would be seduced to illicit intercourse;
14. If prosecution succeeds to prove any of the above ingredients, accused shall also be liable for the offence punishable under Section 366 IPC otherwise prosecution would be failed to bring home the guilt of accused.
15. Instant case is based on the sole testimony of PW4, victim.
Firstly question arises as to whether conviction can be recorded on the sole testimony of victim or not. In this regard, I deem it appropriate to refer to some of the judgments.
16. In Madho Ram v. State of U.P., AIR 1973 SC 469 it was held that:
SC No. 05/11 Page 7 of 22State Vs. Sher Singh "Prosecutrix cannot be considered to be an accomplice. As a rule of prudence, however, it has been emphasized that Courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person, accused of abduction or rape, has not been falsely implicated. The view that, as a matter of law, no conviction without corroboration was possible has not been accepted. The only rule of law is the rule of prudence namely the advisability of corroboration should be present in the mind of the Judge or the Jury, as the case may be. There is no rule of practice that there must in every case, be corroboration before a conviction can be allowed to stand. As to what type of corroboration may be required when the court is of the opinion that it is not safe to dispense with that requirement, it has also been laid down that the type of corroboration required just necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence with which a person is charged."
In State of Himachal Pardesh v. Asha Ram, AIR 2006 SC 381, Apex Court held that:
"The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor SC No. 05/11 Page 8 of 22 State Vs. Sher Singh contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case"
In Sadashiv Ramrao Hadbe v. State of Maharastra (2006) 10 SCC 92, Apex Court held:
"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
In Radhu v. State of Madhya Pardesh, AIR 2007 SC 847, it was held that:
"It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor SC No. 05/11 Page 9 of 22 State Vs. Sher Singh construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, wrist, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.
(emphasis supplied)
17. It is limpid from the above judgments that victim is as reliable as other witnesses and conviction can be recorded on the uncorroborated testimony of victim/prosecutrix provided her testimony inspires confidence and appears to be trustworthy. Minor discrepancies in her testimony is not sufficient to disbelieve the victim.
18. In the light of the above proposition of law, testimony of PW4 i.e. victim will be analysed to ascertain as to whether her testimony inspires confidence or not? If not, whether there are sufficient evidence on record to corroborate her testimony?
19. First of all question arises as to whether accused knew that victim was minor or whether he had any reason to believe that victim was minor.
SC No. 05/11 Page 10 of 2220. In order to prove the age of victim, prosecution has relied upon the testimony of PW2, PW4, PW6 and PW10. PW2 (father of victim) deposed that her date of birth is November 25, 1994 and this fact is corroborated by PW4. PW6 Ms. Jasbir Kaur, teacher also deposed that as per school record her date of birth is November 25, 1994. This fact is also proved by PW10 Sub-Registrar, Birth & Death. Thus, from the testimony of said witnesses, it is established beyond the shadow of all reasonable doubts that victim was born on November 25, 1994. Since, the alleged incident had taken place on May 20, 2010, victim was about 15 years, 5 month and 26 days old at the time of alleged incident.
21. In this regard, the testimony of PW12 and PW13 are also relevant. PW12, Dr. Pooja, who examined the victim, deposed that victim had disclosed her age as 18 years and same was recorded in the MLC. PW13, Dr. Dinesh Singh, who conducted ossification test on victim at Itawa, deposed that victim had moved an application before the City Magistrate, Itawa for determination for her age. Accordingly, CMO was directed to conduct ossification test. He further testified that on June 03, 2010, victim Nisha Pandey appeared in the Radiologist Department and several x-rays were taken for the purpose of determining her age. After examining the entire record, CMO had opined that victim Nisha Pandey was 18 years old and he submitted his report Ex.PW13/D.
22. In this context, testimony of PW4 Nisha Pandey is also relevant. In her cross-examination, she admitted that she had disclosed her age as 18 years before the learned Metropolitan Magistrate at the time of making statement under Section 164 Cr. P.C. She also admitted that when she was taken to the hospital for medical examination, she informed the doctor that she was 18 years old and she had married with the accused SC No. 05/11 Page 11 of 22 State Vs. Sher Singh Sher Singh on June 06, 2010. She further admitted that she was taken to the hospital twice for medical examination. Firstly, on July 07, 2010 thereafter on July 10, 2010 and at both the occasions she disclosed her age as 18 years. She also admitted that she had appeared before the learned Chief Judicial Magistrate, Itawa. She also admitted that at the time of solemnising her marriage with the accused at Arya Samaj Mandir, she disclosed her age as 18 years. Thus, it is pellucid that victim herself had avowed before numerous authorities such as learned Chief Judicial Magistrate, Itawa, CMO Itawa, learned Metropolitan Magistrate, Doctors that she was 18 years old. However, she denied a suggestion that she had disclosed her age as 18 years to the accused and took the plea that accused knew her actual age but there is nothing on record which may prove that accused was aware about her actual age. Moreover, during ossification test conducted by CMO Itawa, her age was found 18 years and prosecution has relied upon the said document. Even prosecution has examined PW13 Dr. Dinesh Singh to prove the said report. If during ossification test, she was found 18 years old and victim herself professed before different authorities that she was 18 years, accused has every reason to believe that she was 18 years old particularly when prosecution failed to adduce any cogent evidence to establish that accused was aware about her actual date of birth.
23. No doubt, as per birth certificate, she was minor at the time of alleged incident but victim herself represented before various Authorities including before learned Metropolitan Magistrate at the time of making statement under Section 164 Cr. P.C. that she was major and her age was above 18 years. In these circumstances, it is difficult to believe that accused knew or he had any reason not to believe the victim when she claimed that she was 18 years old.
SC No. 05/11 Page 12 of 2224. In the light of the above discussion, I am of the considered opinion that prosecution has failed to establish that either accused knew previously or he had sufficient reason to believe that victim was below 18 years at the time of alleged incident.
25. Second question emerges for adjudication as to whether accused had enticed the victim or took the victim from her lawful guardianship. In this regard, the testimony of PW3 and PW4 are relevant.
26. It is undisputed fact that accused was driving school van whereas victim used to go to school in his van. From the testimony of PW3 and PW4, it is also established that victim stopped going to school in the van of accused as the said van was discontinued with effect from April 2010. PW4 admitted in her deposition that when she used to go to school in the van of accused, friendship was developed between her and accused and accused started loving her. In her cross-examination, she also deposed that she continued going to her school despite the fact that van was discontinued in the month of April 2010. She clarified that her parents had discontinued the van as they did not like the accused. Thus, it becomes abduntanly clear, when victim used to go to school in the van of accused friendship/interaction had developed between them. As her parents did not like the accused, they discontinued the van with effect from April 2010, however victim continued going to school.
27. PW4 in her examination-in-chief deposed that on May 20, 2010, accused asked her to come behind her house at 3 PM and when she reached there accused met her and asked that he would come back after 5-10 minutes driving as he had to purchase some goods. Accordingly, she SC No. 05/11 Page 13 of 22 State Vs. Sher Singh sat in his van but thereafter accused did not stop the van, consequently she asked the accused where he was going, accused told her that he wanted to marry her and he had already talked with her parents and they had permitted him for marriage. She further deposed that at that time she lodged protest by saying that she would not accompany unless her parents would permit her but he asked her to be seated in the van. In other words PW4 attempted to establish that she went to meet the accused on May 20, 2010 as accused had asked her to reach at the pre-determined place. Thereafter, accused enticed the victim to sit in his van by stating that he would come back within 5-10 minutes after purchasing some goods and her parents had permitted him to marry with the victim.
28. In her cross-examination, she deposed that accused had made a call on the mobile phone of her mother and the call was attended by her as her mother was at upper floor and accused knew this fact that phone shall be attended by the victim. She further deposed that she did not have a phone but her mother had a mobile phone. She further deposed that there was an Aunty, who used to do iron press on clothes and she knew that at that time, she was alone in the room and she would attend the call, consequently the said Aunty informed the accused and thereafter accused made a call to the victim. She further deposed that the name of said Aunty was Sanju. However, her mother PW3 in her cross-examination deposed that she had not received any call on May 20, 2010 on her mobile phone and accused Sher Singh had not made any call to her daughter on May 20, 2010 on her phone. She also admitted that Sanju was doing the job of ironing the clothes near her house. However, she clarified the activities of her house could not be watched by Sanju. If it was so, it means that PW4 had deposed falsely that Sanju had informed the accused that victim was alone in the room and the phone will be picked up by the victim and SC No. 05/11 Page 14 of 22 State Vs. Sher Singh thereafter accused made a call to the victim. If Sanju was unable to see the activities of the house of victim, it was not plausible for her to inform the accused that victim was alone and phone call shall be attended by the victim only. Moreover, prosecution has also failed to examine Sanju, thus, there is no scintilla of evidence to establish that accused had made a call to the victim at the information provided by Sanju.
28. PW4 in her cross-examination further deposed that she went to meet with the accused because he had called her despite the fact that her parents did not like him. In fact the said testimony is paradox in nature. If her parents did not like the accused why she had left from her house to meet with the accused. She further deposed that she had left from her house after intimating her mother that she was going to market to buy vegetables and her mother gave ` 50/- to buy vegetables. PW3 is also admitted in her cross-examination that victim had left from the house stating that she was going to market to buy vegetables and she had given ` 70/ - to ` 80/- to the victim. This proves that the victim had left from her house after telling lie to her mother that she was going to market to buy vegetables. As already discussed that there is no evidence on record to establish that accused had made a call to victim, it means that victim herself had left from her house on the false pretext that she was going to market to buy vegetables. In other words victim had left from her house with some pre- determined object otherwise there was no occasion for her to tell a lie to her mother. It is pertinent to mention here that it is not the prosecution case that accused had previously asked the victim to come at any pre-determined place and from there they would elope.
29. When victim appeared before the learned Metropolitan Magistrate to make the statement under Section 164 Cr. P.C., she no where SC No. 05/11 Page 15 of 22 State Vs. Sher Singh disclosed how the accused had enticed her. She no where disclosed that accused had asked her that he would come back after 5-10 minutes driving as he had to purchase some goods. She no where disclosed that at the instance of accused she had sat in his van. Similarly, when she was examined by the investigating officer, she did not state that she was enticed in any manner by the accused. Rather at both the occasions, she deposed that she was in love with the accused and she had married with the accused of her own volition without any pressure and her parents were against the said marriage. She further told that she did not want to live with her parents. Rather she intended to live with the accused.
30. On the basis of the said evidence, it is seldom to cull out that accused had enticed the victim in any manner. Rather it appears that victim of her own accompanied the accused as she was in love with the accused.
31. Once, it is proved that prosecution has failed to satisfy the ingredients of Section 361 IPC, accused cannot be held guilty for the offence punishable 363 and 366 IPC.
32. To attract the provisions of Section 366 IPC, prosecution has to establish that accused had kidnapped the victim with an intention that she may be compelled or knowing that she would be compelled to marry with any person against her will. It is admitted case of the prosecution that marriage was solemnised between accused and the victim. Now question arises as to whether marriage was solemnised against her will or not. In case Khalilur Rahman v. Emperor (Full Bench), AIR 1995, Kolkata 591 it was held:-
Every act done "against the will" of a person, no doubt, is done " without his consent," but an act done "without the SC No. 05/11 Page 16 of 22 State Vs. Sher Singh consent" of a person is not necessarily 'against his will'" which expression imports that the act is done in spite of the opposition of the person to the doing of it. Hence the provisions of S.90 are not to be applied to S.366 unless the intent of the accused is to compel the woman, whatever her age may be, to marry against her will, that is, in spite of her opposition to the marriage, or unless he knows that it is likely that she will be compelled to marry against her will, no offence under the first part of S.366, has been committed. Hence where the accused had kidnapped a little girl under 12 years of age with intention to give her in marriage a presumptio juris et de jure does not arise that the accused kidnapped that child with intent to compel her, or knowing that it to be likely that she will be compelled to marry "against her will".
(emphasis supplied)
33. In this regard, the testimony of PW3 and PW4 are relevant. PW4 in her cross-examination admitted that she had stated before the police that she had married with the accused Sher Singh and she wished to live with him and she did not wish to go with her parents as they were against her marriage. She further admitted that when she appeared before learned Metropolitan Magistrate to make her statement under Section 164 Cr. P.C, she informed the learned Metropolitan Magistrate that she was not under any kind of threat or pressure and further admitted that when her statement was recorded, she was alone with learned Metropolitan Magistrate in her chamber. She also admitted that she made a statement before the learned Metropolitan Magistrate that accused Sher Singh had never pressurized her and rather she asked the accused for marriage and further admitted that marriage was solemnised at Arya Samaj Mandir, Firozabad. She further admitted that she stated in her statement Ex.PW4/D SC No. 05/11 Page 17 of 22 State Vs. Sher Singh that Sher Singh had not committed any galat kaam with her and relations were maintained between them with her consent and further stated that she did not intend to go with her parents as she had apprehension that they would kill her and further stated that she was intended to live with her husband i.e. accused Sher Singh. She further admitted that she stated in Ex.PW4/D that she could understand her welfare and could take decision of her own life. She further admitted that she developed intimacy with accused Sher Singh and gradually started loving him. From her statement made before learned Metropolitan Magistrate and before police, it becomes clear that she was in love with the accused and she married with the accused of her own free will and accused did not pressurise her in any manner.
34. No doubt, the statement made before the police has no evidentiary value and similarly statement made under Section 164 Cr.P.C. is not a substantative piece of evidence. It is also undisputed fact that when victim entered the witness box, she deposed that she had not disclosed true facts before the learned Metropolitan Magistrate and further deposed that she was under the influence of accused Sher Singh. When victim stated so, she was informed that witness is liable for perjury, if it is found that witness has deposed falsely on oath. Upon this, victim stated that she knew that action can be taken against her for making a false statement. Thus, during her deposition, victim attempted to establish that previously she had made a false statement before the police as well as before the learned Metropolitan Magistrate as she was under the influence of accused Sher Singh. It is admitted case of the prosecution that her statement was recorded under Section 164 Cr. P.C. on July 07, 2010 whereas police recorded her statement on July 08, 2010. She appeared in the witness box on March 02, 2012 but during the said period, she did not deem it appropriate either to inform the investigating officer or Court that she had SC No. 05/11 Page 18 of 22 State Vs. Sher Singh divulged false facts in her statement under the influence of accused and now she intended to divulge true facts. In her cross-examination, she deposed that before appearing in the witness box on March 02, 2012, she told true facts to the police and this attempt was made about one and a half month ago prior to March 02, 2012. In other words, she intended to say that she attempted to disclose true facts to the police sometimes in the month of January 2012 but investigating officer did not record her statement. She categorically admitted that during July 2010 to March 2012, she had not made any other effort to divulge true facts either to the police or to the Court. It is admitted facts that from July 2010 to March 2012, she remained with her parents, it means that parents had sufficient time to persuade or influence the victim. If victim could make a false statement at the instance of accused as contended by learned Additional Public Prosecutor for the State why she cannot make a false statement at the instance of her parents. Needless to say that it is well settled law that witness cannot set up a new case during his or her testimony but in the instant case victim had made an attempt to establish a new case during her deposition. Since, the contradictions affect the core of prosecution case, I am of the opinion that no reliance can be placed on the testimony of victim. In this regard, the following judgements are quite relevant.
35. In State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 Apex Court has laid down the approach which should be followed by the Court at the time of appreciating evidence of a witness:
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the SC No. 05/11 Page 19 of 22 State Vs. Sher Singh deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross- examination is an unequal duel between a rustic and refined lawyer..................."
36. In State v. Saravanan AIR 2009 SC 152, it has been laid down that:
"Even otherwise, it has been said time and again by this Court that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. Further, on the general tenor of the evidence given by the witness, the trial court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the SC No. 05/11 Page 20 of 22 State Vs. Sher Singh totality of the situation, which has to be taken note of. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on minor variations and discrepancies."
(emphasis supplied)
37. In the light of above settled proposition of law, I am of the considered opinion that improvements made by PW4 in her deposition can not be ignored by labelling the same as minor contradictions. Rather, PW4 by making substantial improvements in her deposition made a futile attempt to set up a new case, which touched the core of prosecution case. If we ignore the above improvements from the deposition of PW4, rest of her deposition will not be sufficient to prove the culpability of accused in any manner.
38. PW3 in her examination-in-chief deposed that on May 22, 2010, she had received a call from victim and she told her not to search her as she was going to marry and thereafter she disconnected the phone. This shows that victim had every intention to marry with the accused. There is nothing on record which may suggest that accused had made a call to PW3 under any pressure. PW4 in her cross-examination categorically admitted that her parents did not like the accused and due to that reason they discontinued his van. PW3 is also admitted in her cross-examination that they were against the marriage as accused is Sikh and victim is Brahmin.
39. From the aforesaid discussion, it becomes crystal clear that there is no cogent evidence to establish that accused had kidnapped the victim with an intention that victim would be compelled to marry against her will. On the contrary it appears that victim was in love with the accused and she had left from her house without any inducement on the part of accused SC No. 05/11 Page 21 of 22 State Vs. Sher Singh and she married with the accused of her own free volition and will after disclosing her age as 18 years before numerous authorities including learned Chief Judicial Magistrate, Itawa and CMO, Itawa.
40. Taking into account the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of the accused for the offence punishable under Section 363/366 IPC beyond the shadow of all reasonable doubts, thus, I hereby acquit the accused Sher Singh from all the charges.
Announced in the open court On 16th September, 2013. (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI.
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