Delhi District Court
State vs . Devender @ Chand on 26 May, 2011
1
IN THE COURT OF S.K. SARVARIA DISTRICT JUDGE
INCHARGE ADDITIONAL SESSIONS JUDGE:
ROHINI COURTS, DELHI
SESISONS CASE NO.16/2010/2009
State Vs. Devender @ Chand
S/o Sh. Hargovind
R/o V.P.O Ladrawan P.S Bahadurgarh
Sadar District Jhajjar (Haryana).
FIR No. 156/2009
Police Station Shabad Dairy
Under Section 363/366/376/506 IPC
Date of Institution: 28.01.2010
Date when arguments 24.05.2011
were heard
Date of Judgment: 24.05.2011
JUDGMENT
1. The SHO P.S Shahbad Dairy has challaned the accused to face trial for the offences under Sections 363/366/376/506 IPC. Ld S/vs Devender 2 Metropolitan Magistrate after supplying the copies of documents of the prosecution case to the accused by complying with Section 207 Cr.P.C has committed the case to the Court of Sessions as provided under Section 209 Cr.P.C. Keeping in view the provisions of Section 228 (A) IPC and the dicta of the Hon'ble Supreme Court in State of Karnataka Vs. Puttraja (2004 (1) SCC 475) and Om Prakash Vs. State of Uttar Pradesh 2006 Cri.L.J. 2913 the name of prosecutrix is withheld in this judgment.
BRIEF FACTS OF THE CASE
2. The prosecution case in brief is that on on 03.07.2009 complainant Sunita came to the police station and got recorded FIR by stating that she is a housewife and has three children. Her daughter Bhiwani aged 16 yrs is student. of class 10th. On 23/24.06.2009 in the night at about 3.00 a.m she woke up and found that her daughter bhiwani was not at home. she made search for her daughter from her relatives and on 24.06.2009 got recorded DD No.11A regarding her missing daughter. She suspected that her daughter is enticed and taken with him by her earlier tenant Devender @ Chand who belongs to Lar S/vs Devender 3 Ravan Haryana Sanjay S/o Bhoop Singh Village Mathindo Haryana who was also her tenant was also suspected by her to have colluded with Devender. On the basis of the statement of complainant, FIR under Section 363/34 IPC was registered in the police station and investigation was handed over to ASI Satbir Singh. During investigation to trace the prosecutrix W.T. message was got flashed on Doordarshan (CIC) CBI Cell, the photographs of prosecutrix were sent. Publication was got done and copy was sent to every police station. No incriminating material was found against Sanjay S/o Bhoop Singh and accused Devender @ Chand and prosecutrix were traced in Bhiwani but despite all possible efforts they could not be traced. On 01.11.2009 Inspector Vikram Singh arrested accused Devender @ Chand at Railway Station, Sonepat Platform No.2. The prosecutrix was also recovered. Their medical examinations were got conducted and the statement of prosecutrix U/s 164 Cr.P.C was recorded. Thereafter the prosecutrix was handed over to her mother Sunita as per the orders of Ld M.M. On confirmation of the commission of rape the offence under Section 376 IPC was added. During investigation the offence under Section 366 IPC and 506 (II) IPC was also added. On completion of investigation, the accused was challaned, as referred S/vs Devender 4 before.
CHARGES AND PLEA OF ACCUSED:
3. The prima facie case for the offences under Sections 363/366/376/506 IPC was found to be made out against the accused, so he was charged accordingly on 26.02.2010 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In support of its case the prosecution has examined 17 witnesses in all. To have assessment of the prosecution evidence, it would be appropriate to give a short resume of the statement of prosecution witnesses recorded in the court.
5. PW1 is HC Rajbir Singh who was working as duty officer at P.S Shahbad Dairy. He proved copy of FIR as Ex PW 1/A.
6. PW2 is HC Ishwar Dutt. He deposed that as per record on 01.11.2009 nine sealed pulandas were deposited by Inspector S/vs Devender 5 Vikram Singh in the malkhana. Entry was made at serial no.351. On 27.11.2009 all the sealed pulandas duly sealed with the seal of MB hospital, Pooth Khurd were sent to FSL Rohini through Ct. Guljari Lal No. 1995/OD vide RC No. 101/21/09. He proved the copy of relevant entries in register no.19 as Ex PW 2/A, photocopy of the entries in register no.21 as Ex PW 2/B and photocopy of acknowledgment from FSL as Ex PW 2/C.
7. PW3 is Smt. Saroj Devi, Assistant Teacher, Sarvodya Kanya Vidhalaya, Prahladpur, Delhi. She deposed that as per record Shivani D/o Satbir Singh was admitted in the school on 03.07.2004 and as per record her date of birth is 19.10.2003. This witness proved the photocopy of school record as Ex PW 2/A.
8. PW4 is Dr. Yudhveer Singh, Medical Officer, Maharishi Balmiki Hospital, Delhi. He deposed that on 01.11.2009 at 9.55 p.m, Shivani @ Pinki D/o Satbir Singh was brought to the hospital by lady Constable Kanta with the alleged history of sexual assault. The patient was conscious and oriented. Since it was a case of sexual assault, the patient was referred to HR Gyne for further opinion. The MLC is S/vs Devender 6 proved by this witness as Ex PW 4/A. This witness further deposed that on the same day, he also examined Devender @ Chand S/o Hargovind, aged 25 yrs male who was brought to the hospital by Constable Sushil. The patient was examined by him. There was alleged history of accused of sexual assault. No visible injury was found on local examination. On examination of the secondary sexual characteristic, he found that there was nothing to suggest that patient was incapable to perform sexual intercourse. Semen, blood sample and pubic hair were taken and separately sealed and handed over to the police.
9. PW5 is the prosecutrix. She deposed that she is student of Sarvodya Kanya Vidhyalya, Prahladpur and as per school record her date of birth is 19.10.1993. She knows the accused as he was a tenant in their house. Accused asked her several times to accompany him but she refused. Even he had beaten her in the presence of her mother for her refusal to accompany him. Her mother has some sleeping disorder and generally she takes medicine at night for sleeping. Her mother was sleeping after taking medicine. On 23.06.2009, she (PW5) was sleeping inside her room along with her siblings. Accused came to his S/vs Devender 7 room and pressed his mouth. He was having a cloth piece. He tied his mouth with that cloth. She fell unconscious. When she regained consciousness, she found herself in a car. She asked the accused as to where he was taking her. The accused who was having a knife threatened her that he would kill her then and there if she will raise alarm. She was so scared that she did not speak as the accused had tied a cloth on her mouth. He took her somewhere in room where he forcibly committed rape on her. Against her wishes, the accused established physical relations with her. He used to beat her mercilessly in that room and kept her confined in that room for some days. Again after some days, the accused changed the room after tying a cloth on her eyes and mouth so that she could not see the place where she was being taken. Again at the second place, she was confined for some days and accused used to commit sexual intercourse with her against her wishes. He also used to beat her. He was also not providing her food regularly. He used to provide her food as per his own wishes. In this way, he took her to 23 different places but she did not see or know the name of the places wherever she was taken because generally he used to take her out at night after tying her eyes with cloth. During this period, she was being beaten by him mercilessly. S/vs Devender 8 The accused used to extend threats to her that if she will not perform sexual intercourse with him, he would kill her as well as her mother.
It is further deposed by PW5 that the accused used to force her for marrying him but she always refused. One day, he took her to some office and performed marriage with her by obtaining her signature on some papers. He also took her to some Mandir where marriage was performed by Panditji. At the time of performing marriage with her, he extended threat that if she will not marry him, he would kill her as well as her family members. She used to insist that she wanted to go back but accused never permitted her to go back. He kept her in this condition for about four months. He did not allow her to telephone her mother. After four months, she fell very seriously ill so he telephoned her mother and asked her to come and meet them. He extended threat to her mother that she should come alone and if she would inform the police, she would be killed. Her mother came to meet them. The accused took her somewhere in a car. At that place her mother also came. After some time of the arrival of her mother, police also reached there and accused was apprehended by the police. Police got her medically examined. Her clothes were also taken into possession by the police. Her underwear was also taken into S/vs Devender 9 possession by the police. Her statement was also recorded before the Magistrate in Delhi which is proved as Ex PW 5/A.
10. PW6 is Smt. Sunita who is the mother of prosecutrix. She deposed that prosecutrix is her daughter and is about 16+ today. Between the night of 23/240609, she along with her daughter/prosecutrix along with other children were sleeping at their residence. When she woke up at about 5/6 am, she found her daughter/prosecutrix missing. She tried to trace out her daughter at her relatives but she (prosecutrix) was not found. On 24/06/2009, she went to the police station and lodged a missing report. She placed her suspicion about the missing of her daughter from the very beginning on accused Davinder. On 27/06/09, she again visited at the police station. Her statement was recorded by police which is proved as Ex. PW6/A. On 30/10/09, she received a telephone call from accused Davinder who told her that her daughter was not feeling well and if she want to see her, she has to reach at Platform no. 2, Sonipat. She informed the police officials regarding receiving of telephone. Thereafter she along with police officials reached at Railway Station, Sonipat and waited at Railway Station for about 30 to 60 minutes. S/vs Devender 10 After that she saw her daughter along with accused at Platform no. 2. She went there and talked with her daughter for about 15/20 minutes and then gave signal to the police officials, who also reached there. The accused and her daughter were apprehended. Both were taken to Police Station Shahbad Dairy. Thereafter her daughter and the accused were taken to Maharishi Balmiki Hospital for medical. After the medical examination, doctor handed over some sealed parcels to the IO which is proved as PW6/B. Accused Davinder was arrested vide arrest memo Ex. PW6/C and his personal search was also conducted.
On being put leading question to this witness by Ld Additional P.P for the State, she admitted it correct that she went to Railway Station, Sonipat on 01/11/2009 and accused was apprehended on the same day along with her daughter.
11. PW7 is Smt. Shakuntla. However, this witness has been dropped by Ld Chief Public Prosecutor being unnecessary.
12. PW8 is HC Shabhu Singh. He deposed that on 24/06/2009, he was posted at Police Station Shahbad Dairy as Duty S/vs Devender 11 Officer from 8:00 am to 4:00 pm. On that day at about 3:15 pm, one Smt. Sunita, wife of Satbir Singh came in the police station and lodged a missing report regarding her daughter/prosecutrix. He recorded the missing report vide DD No. 11A, copy of which is proved by this witness as Ex. PW8/A.
13. PW9 is Constable Jagdish. He deposed that on 01/11/2009, he was posted as above as DD writer. On that day at about 4:40 pm, he made departure entry of Inspector Vikram Singh, Additional SHO along with staff, HC Anand Singh, Ct. Sushil Kumar and Ct. Charan Singh for going outstation for investigation of the present case vide DD No. 30. The copy of original DD register is proved by this witness as Ex. PW9/A.
14. PW10 is Constable Gulzari Lal. He deposed that on 27/11/2009, he took nine sealed pulandas/parcels duly sealed with the seal of MB Hospital, Pooth Khurd from MHC(M) at the instance of IO ASI Satbir Singh vide RC No. 101/21/2009 and deposited the same with the FSL, Rohini. After depositing the said parcels, he came back with the copy of RC and receipt issued by FSL and handed it over to S/vs Devender 12 MHC(M). He proved the copy of the original RC register as Ex. PW10/A.
15. PW11 is HC Anand Singh. He deposed that on 01/11/2009 he along with Inspector Vikram Singh, Ct. Sushil and Ct. Charan Singh went to Sonipat Railway Station after receiving the information about accused Davender and prosecutrix. At the railway station, mother of prosecutrix i.e. the complainant Sunita was already found present. They all were properly briefed by the IO and were asked to take position in all four directions. After some time, at platform no. 2, complainant Sunita went towards one boy and girl and started talking them and she gave indication that the said boy was accused Davinder and the girl was her daughter/prosecutrix. At the instance of IO, they all apprehended the accused Davinder. The prosecutirx was examined by the IO in the presence of her mother and her statement was recorded U/s. 161 CrPC. The accused was arrested vide arrest memo Ex. PW6/C. His personal search was conducted which is proved by this witness as Ex. PW11/A. Accused made his disclosure statement vide Ex. PW11/B. Thereafter they all came back to Delhi and went to MB Hospital, Pooth Khurd, where lady Ct. Kanta S/vs Devender 13 was already found present as per the directions of the IO. The accused as well as the prosecutrix were got medically examined. The exhibits of accused after his medical examination were given by the doctor, which were seized by the IO vide seizure memo Ex. PW11/C. Statement of PW Sunita was recorded and she was discharged from the hospital. Thereafter, they all came back at the police station along with prosecutrix and accused. The prosecutrix was given in the custody of Lady Ct. Kanta in the police station and accused was sent to the lockup of sub PS S. P. Badli. The exhibits were deposited with the MHC(M). The statement of this witness was recorded by the IO.
16. PW12 is Constable Sushil Kumar. However, this witness is dropped by Ld Additional Public Prosecutor as he is the witness of same facts which have already been deposed by PW11 HC Anand.
17. PW13 is Sh. Naveen Gupta, Ld M.M, Rohini Courts, Delhi who has conducted the proceedings under Section 164 Cr.P.C. He proved the application marked to him for recording the statement of prosecutrix as Ex PW 13/A, proceedings conducted by him under Section 164 Cr.P.C as Ex PW 13/B, statement of prosecutrix as Ex PW S/vs Devender 14 13/C, certificate of true and correct account of statement as Ex PW 13/D and the application of IO for supply of copy of statement as Ex PW 13/E.
18. PW14 is Dr. Sunita Rani. She deposed that she is working as a Medical Officer (RCH) at Maharishi Balmiki Hospital for the last four years. She has seen MLC of prosecutrix bearing no. 3208 dated 1.11.2009. The prosecutrix was examined in the hospital by Dr. Pratima. Dr Pratima had worked with her. She identified the handwriting of Dr. Pratima at portion mark B to B on MLC Ex PW 4/A. She further deposed that as per the MLC, the hymen of the prosecutrix was ruptured.
19. PW15 is Dr. Pratima. She deposed that on 01.11.2009 she was posted as SR Gynae at Maharishi Balmiki Hospital, Puth Khurd. On that day prosecutrix was brought to the hospital for medical examination by lady Ct Kanta. She medically examined the prosecutrix and found that hymen was torn and vaginitis present. She prepared MLC which is proved as Ex PW4/A. The six samples as detailed from point Sr No. 1 to 6 at point X on MLC Ex PW 4/A were S/vs Devender 15 also taken and sealed and handed over to the investigating officer.
20. PW16 is Inspector Vikram Singh. He deposed that on 25.8.09 he was posted at police station Shahbad Dairy. On that day investigation of this case was marked to him. He perused the file and tried to trace victim as well as the accused. On 1.11.09 Smt Sunita mother of the prosecutrix informed him that the accused Devender along with her daughter were coming at Sonipat railway station to meet her as her daughter i.e victim is not feeling well. He sought permission of out station and lodged DD entry 30B which is proved as Ex PW 16/A. He organized raiding party along with HC Anand singh and Ct Sushil, Ct Charan Singh and they went to Sonipat railway station. Sunita was already present there. He instructed his team to take position near platform no.2 where Sunita was standing. He also briefed Sunita. This witness corroborated with the statement of PW11 HC Anand Singh with regard to arrest, disclosure statement and medical examination of accused Devender.
It is further deposed by this witness that after the medical examination of prosecutrix, doctor handed over to him six sealed pullandas and sample seal which he seized them vide memo Ex S/vs Devender 16 PW6/A. He also collected the MLCs and recorded statements of witnesses and thereafter went back to police station where the accused was locked up. He deposited the case property in malkhana. This witness further stated that during investigation the statement of prosecutrix under section 164 CrPC was also got recorded. Prosecutrix was handed over to her mother on the direction of the court and he lodged DD entry No. 16B. Thereafter the investigation of this case was handed over to ASI Satbir Singh.
21. PW17 is ASI Satbir Singh. He corroborated with the statement of PW6 Sunita with regard to missing report lodged by complainant as well as recording her statement. It is also deposed by this witness that he prepared rukka which is proved as Ex PW 17/A. He gave the rukka to duty officer at about 5.45 pm and left police station along with complainant for the spot. He made inquiries at spot from nearby persons but no clue could be found. After registration of FIR , Constable Bhupender gave him copy of FIR and rukka at spot. He recorded supplementary statement of complainant and statement of Ct Bhupender. Thereafter they came back to the police station. During investigation, he got flashed message on All India and NCR S/vs Devender 17 level regarding the prosecutrix. He had also given information to the missing persons squad. The photograph of the prosecutrix was obtained by him during investigation and hue and cry notice were also published.
It is further deposed by this witness that during investigation he made all sincere efforts to trace the prosecutrix and accused but could not get them. On 25/8/09 case was transferred to Insp Vikram for further investigation. He handed over the case file to Insp Vikram. On 27/11/09 on the instruction of IO, he asked MHCM to send the exhibits at FSL and accordingly MHCM Constable Guljari Lal sent the exhibits to FSL Rohini for depositing the exhibits. He proved the application for submitting FSL report as Ex PW 17/B and FSL report no. 2009/D41191 and Bio no. 1306/09 as Ex PW 17/C and Ex PW 17/D respectively. On 05.01.2010, he again received the case file for further investigation and on 06/01/2010 he recorded statement of prosecutrix under section 161 CrPC. On 24/1/2009, he obtained certificate regarding date of birth of prosecutrix from the Vice Principal Sarvodya Kanya Vidayala Prahlad Pur Delhi which is proved as Ex PW17/E. He seized the date of birth affidavit of the father of the prosecutrix from the aforesaid school on 20/01/2010 and proved its S/vs Devender 18 seizure memo as Ex PW 17/F. The attested photostat copy of affidavit is also proved by this witness as Ex PW 17/G. PLEA AND DEFENCE OF ACCUSED
22. In the statement U/s 313 Cr.P.C the accused has admitted that he was tenant of PW5 prosecutrix in the plot. He in relation to other incriminating evidence has either denied the prosecution case or has expressed his ignorance about the incriminating evidence emerging from prosecution case put to him by way of different questions. He has stated that the marriage with prosecutrix is registered marriage. They both went to Registrar Office and performed marriage with the consent of prosecutrix. Police obtained his signature on blank papers which were used later on into memos. He is innocent and has been falsely implicated in this case just to fill the lacuna. The accused did not lead any evidence in defence.
ARGUMENTS AND FINDINGS
23. Sh. Sanjay Kumar Ld Addl. P.P for the State has argued that in statement under Section 164 Cr.P.C prosecutrix has supported S/vs Devender 19 the prosecution case. The prosecutrix in the court has also supported the prosecution case on the charges framed against the accused. The age of the prosecutrix is 15 years 8 months and 3 days as on the date of commission of offences. The accused took prosecutrix forcibly by using stupefying object and shifted her from one place to another. The MLC report of the prosecutrix shows that her hymen was ruptured so the prosecution has proved its case against accused beyond reasonable doubt on the charges levelled against him.
24. Ms Suman Mahajan Ld counsel for accused has argued that there is four days delay in lodging of the FIR. Age of prosecutrix is above 18 yrs and she voluntarily entered into the marriage. The marriage was performed in Arya Samaj Mandir as well as before Marriage Registrar and there is documentary evidence on record. The age of prosecutrix according to the prosecution was 16 ½ yrs. The statement U/s 164 Cr.P.C and 161 Cr.P.C of prosecutrix is contradictory and in statement U/s 164 she has stated that she was threatened that her brother would be kidnapped while in the statement under Section 161 Cr.P.C she stated that accused threatened to kill her brother. It is argued that accused and prosecutrix remained together for S/vs Devender 20 5½ months so it was a consent affair between them and the prosecution story is false. The prosecutrix in the crossexamination has admitted that she was born in the hospital but her birth certificate is not produced and school leaving certificate is doubtful. She was major as on the date of incident so accused is entitled to be acquitted of all the charges.
25. I have heard the learned Additional Public Prosecutor Sh. Sanjay Kumar for the State and the learned counsel for the accused Ms Suman Mahajan and have gone through the record of the case and relevant provisions of law.
26. First of all, I take the most heinous offence charge of which against the accused i.e 376 IPC. The definition of rape is given in Section 375 IPC and consent of the prosecutrix for sexual intercourse exonerates the accused of the charge of rape provided she is 16 yrs old or older than that as per Clause Sixthly in Section 375 IPC.
27. As to the age of the prosecutrix, the Municipal Certificate S/vs Devender 21 recorded in the Municipality at or about the date of birth of the child is considered to be the most reliable evidence. In case of its non availability the oral evidence of parents of the prosecutrix and school record may throw light on the age of the prosecutrix. In the present case, PW3 has brought the school record copy of which is Ex PW 2/A which shows the date of birth of prosecutrix as 19.10.1993. The date of kidnapping of prosecutrix her age comes to about 15 yrs 8 months but in the FIR her age is given as 16 yrs. The allegations of alleged sexual intercourse/rape against the prosecutrix are after she was taken by accused to Noida and Panipat i.e during the period of 4 months they lived together after 23/24.06.2009 and there is no specific date of the alleged commission of rape. In any case, as per the school record, the prosecutrix was approaching the age of 16 yrs as on the date of alleged sexual intercourse by the accused during 4 months they lived together but according to statement of mother of prosecutrix and the FIR she was 16 yrs of age. The mother of prosecutrix PW6 Sunita has also stated in the examinationinchief that prosecutrix was 16+ as on the date of her statement. The prosecutrix, however, has given her age at the time of her statement before court on 07.05.2010 as 16 yrs and in the examinationinchef she has confirmed the date of birth as S/vs Devender 22 19.10.1993 as per school record but in the crossexamination she has stated that she was born in hospital and her brothers were also born in the hospital and they were living in a village. She has also stated that they have record of hospital but neither the record of hospital is produced nor her birth record from Municipality is produced. Further, the marriage certificate Ex PW 5/DC is produced in which her age is given as 19 yrs on 26.06.2009 and in the marriage registration certificate before Registrar of Hindu Marriage, Ghaziabad dated 26.06.2009 Ex PW 5/ED also . Obviously these two marriage certificates leads to the inference of her age being told by her before Arya Samaj Mandir and Registrar of Marriage above 18 yrs of age. But without giving her age above 18 yrs she could not contract marriage either in Arya Samaj Mandir or before Registrar of Hindu Marriage, so it can be presumed that she gave her age above 18 yrs so that marriage between her and accused is performed without any legal objection. In view of the totality of the facts and circumstances, the prosecutrix can be taken to be a bit above 16 yrs of age as on the dates of alleged offence of rape, even if it is taken that marriage before Arya Samaj Mandir or the Registrar of Marriage was performed by her by giving a wrong date of birth. More so, when in the preliminary S/vs Devender 23 examination Ex PW 13/B conducted by Ld M.M before recording her statement under Section 164 she has given her age around 16 yrs. Therefore, as far as the offence of rape is concerned, the prosecutrix in the light of above discussion was eligible for giving consent for sexual intercourse.
28. The next question which arises is whether in the given facts and circumstances of the case can it be said that she has consented for sexual intercourse with the accused? In the examinationinchief she has supported the prosecution case that she was forcibly taken by accused and was threatened. She was given some stupefying object and accused committed sexual intercourse with her from time to time during their stay together for 4 months against her wishes. He also forcibly performed marriage with her and obtained her signatures on some papers. But, the evidence on record and her cross examination shatters the story given by her in the examinationin chief. The prosecutrix may have given a wrong date at the time of her alleged so called marriage with accused before Arya Samaj Mandir or before Registrar of Hindu Marriage, Ghaziabad on 26.06.2009. But the fact that she and accused got married there in the manner provided S/vs Devender 24 shows that it was voluntary affair between accused and the prosecutrix for the simple reason that the natural presumption is that both before Arya Samaj Mndir, Dadri and Registrar of Marriage Ghaziabad the voluntariness and volition of the would be husband and wife is required to be ascertained before performing marriage. Further, in the crossexamination the prosecutrix has made the following statements: "I have stated to the police in my statement dated 01/11/2009 Ex. PW5/DB that I had left my house with Davender on his asking without informing anyone. It is correct that I have stated before the police that my mother came to know about my affair with Davender and thereafter, Davender was made to leave the house and even thereafter, I continued my talks with the accused. It is correct that I have stated before the police, after leaving my house that I stayed in Panipat in a rented house with accused, volunteer, accused had scared me to say so. I do not know actually where I had been taken away by the accused. I had stated before the police that thereafter accused had got job in HCL, Noida, as a driver and we shifted to Noida and I had also stated that even in Noida, at three four places we had stayed as husband and wife. I also stated to the police in my statement that during our stay at Noida, we had physical relations with S/vs Devender 25 our consent and even during that period, none of us had contacted our families. I had stated to the police that on 01/11/2009, accused had brought me to Sonipat Railway station for my meeting with my mother and from there, we were apprehended by the police. I do not know that the name of the owner of the house was Ranjeet where we had stayed in Noida at village Barola."
29. In view of the above statements made by the prosecutrix in crossexamination coupled with the fact that she got married with the accused before Arya Samaj Mandir as well as before Registrar of Hindu Marriage Ghaziabad the prosecutrix in the given facts and circumstances can be taken to be above 16 yrs of age but below 18 yrs of age, the sexual intercourse between prosecutrix and accused who were in love with each other was a consent affair, therefore, the prosecution has not been able to prove its case against accused for the offence under Section 376 IPC beyond reasonable doubt.
30. On account of the sexual intercourse of accused with the prosecutrix, there was no occasion of accused to extend any threat to the prosecutrix either to herself or to her brother. They seem to have S/vs Devender 26 gone together from the house and have lived together with consent. Therefore, charge under Section 506 IPC framed against accused is also doubtful
31. As regards offences under Sections 363 and 366 IPC for which the accused is charged with, the age for the purpose of offence of kidnapping which is ingredient of both these offences is the age of minority i.e upto 18 yrs of age.
32. In the light of above discussion, the prosecutrix was below the age of 18 yrs as on the dates of alleged offences and she being a female, technically speaking, she was kidnapped within the meaning of Section 361 IPC as she was unable to give consent to go with the accused for the purpose of offence of kidnapping. Even if she has gone with the accused willingly and lived with him at Noida, Uttar Pradesh and Panipat, Haryana she shall be deemed to have been kidnapped and taken out of the keeping of the lawful guardianship of her mother, therefore, technically the accused has committed the offence of kidnapping from lawful guardianship as defined in Section 361 IPC and made punishable under Section 363 IPC. S/vs Devender 27
33. Since the prosecutrix and accused got married in the Arya Samaj Mandir and before Registrar of Hindi Marriage in Ghaziabad, the purpose of kidnapping of accused was to marry the prosecutrix but she cannot be said to have been forced or seduced to illicit intercourse nor was compelled to marry with the accused. The Registrar of Marriage, obviously, before registration of marriage must have confirmed that it is a consent affair between the would be husband and wife so also the Arya Samaj Mandir authority. Therefore, though technically offence U/s 363 IPC is made out against the accused on account of her being a minor and below 18 yrs of age but the offence U/s 366 IPC is not established against the accused beyond reasonable doubt, therefore, charge u/s 366 IPC also fails against the accused but charge U/s 363 IPC is proved beyond reasonable doubt in the given facts and circumstances of the case.
RESULT OF THE CASE
34. In view of the above, I hold that prosecution has been able to prove its case against accused for the charge under Section 363 IPC. Therefore, accused is convicted of the said offence. As regard charges S/vs Devender 28 under Sections 506/376/366 IPC, the prosecution has failed to prove these charges beyond reasonable doubt. The accused is acquitted of these charges. Let the accused be heard on the point of sentence. Announced in the open Court on 24th day of May, 2011 (S. K. Sarvaria ) District Judge & Incharge Additional Sessions Judge Rohini Courts, Delhi S/vs Devender 29 IN THE COURT OF S.K. SARVARIA DISTRICT JUDGEVIII & INCHARGE ADDITIONAL SESSIONS JUDGE:
ROHINI COURTS DELHI SESSIONS CASE No. 16/2010/2009 State Vs Devender @ Chand S/o Sh. Har Govind R/o V&PO Ladrawan PS Bahadurgarh Sadar District, Jhajjar (Haryana) FIR No. 156/2009 Police Station Shahbad Dairy Under Section 363 IPC ORDER ON SENTENCE Vide my judgment of dated 24/05/2011, the convict/accused Devender was convicted under Section 363 IPC.
Sh. Sanjay Kumar, Learned Additional Public Prosecutor has argued for deterrent punishment to the convict.
Arguments on behalf of the accused/convict addressed by learned Amicus Curiae Ms Poonam Mahajan, Advocate are that accused is not a previous convict and he is poor person, having old parents and the accused/convict is only sole bread earner of his S/vs Devender 30 family. It is also argued that accused have four married sisters. It is also submitted that convict remained in judicial custody for about eleven months(11) and seventeen (17) days , so lenient view may be taken against him and he may be sentenced to the period of detention already undergone during the investigation and trial of this case.
I have heard the learned Additional Public Prosecutor for the State and learned Amicus Curiae Ms Poonam Mahajan, Advocate for the convict and have gone through the record of case. Keeping in view the young age of convict and the fact that he is not a previous convict and he and minor prosecutrix were in love with each other and it was a consent affair between them. The convict Devender is sentenced to the period of detention already undergone by convict and he is directed to pay fine of Rs. 2000/ ( Rs Two Thousand) . In default of payment of fine convict Devender shall undergo simple imprisonment for six months. The period of detention of accused/convict during investigation and trial of this case shall be set off against the term of imprisonment imposed against the convict by this order, as provided under section 428 CrPC.
S/vs Devender 31 Judgment and order on sentence be sent to server(www.delhidistrict courts. nic.in). Copy of judgment and order on sentence be supplied to convict/accused free of cost.
File be consigned to record room.
Announced in the open court on
this 26th day of May, 2011 (S. K. Sarvaria)
District Judge & Addl Sessions Judge/
Incharge/ North West Distt
Rohini Court/26.05.2011
S/vs Devender