Delhi District Court
State vs . Rahul @ Sonu on 21 August, 2015
1
IN THE COURT OF SH. VINOD YADAV : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 60/15)
Unique ID case No. 02404R0131252015
State Vs. Rahul @ Sonu
FIR No. : 213/13
U/s : 363/366/376 IPC
& 4 of POCSO Act
P.S. : Ashok Vihar
State Vs. Rahul @ Sonu
S/o Sh. Hemant Sharma
R/o WP442, Wazirpur Village,
Delhi.
Date of institution of case 07.04.2015
Date of arguments : 21.08.2015
Date of pronouncement of judgment : 21.08.2015
JUDGMENT (ORAL) :
1. The facts of the case as borne out from the record are that on 22.07.2013, complainant Sh. Raju son of Sh. Panna Lal went to PS Ashok Vihar and got his statement recorded, wherein he stated that on 22.07.2013, at about 2.30 pm, his S.C. No. 60/15 : FIR no. 213/13 : PS Ashok Vihar : State vs. Rahul @ Sonu : Page No. 1 of 10 2 daughter (hereinafter referred as "prosecutrix P"), aged about 16 years, went missing from the house and he made efforts to trace her, but all in vain. He raised suspicion against accused Rahul @ Sonu s/o Sh. Hemant r/o Village Wazirpur, Delhi, to have enticed and taken away prosecutrix P. On the basis of the statement made by the complainant, the present case FIR was registered and investigation of the case was handed over to SI Ajay Kumar. During the course of investigation, SI Ajay Kumar made efforts to trace the prosecutrix P and the accused, but all in vain. On transfer of SI Ajay Kumar, further investigation was assigned to Ins. Surender Singh and on his transfer, further investigation was assigned to SI Radhey Shyam. On 31.03.2014, parents of the prosecutrix P produced her in the police post and SI Radhey Shyam made inquiries from her. Prosecutrix P refused for her internal gynecological examination. The statement of prosecutrix P was got recorded u/s 164 Cr.P.C. As per the school record, the prosecutrix P was minor at the time of marriage, the accused was arrested on 12.03.2015. After completing investigation, charge sheet was prepared and filed before this court by the IO, through SHO concerned.
2. After filing of charge sheet, copies of documents were supplied to the accused and thereafter, arguments on the point of charge were heard and on 10.04.2015, charges u/s 363/366 IPC and 3 (a) of Prevention of Children from Sexual Offences Act, 2012, (hereinafter referred to as "Act"), punishable u/s 4 of the Act, alternatively u/s 376 (2) (i) IPC were framed against the accused, to which, he pleaded not guilty and claimed trial.
S.C. No. 60/15 : FIR no. 213/13 : PS Ashok Vihar : State vs. Rahul @ Sonu : Page No. 2 of 10 3
3. The prosecution has examined seven witnesses in support of its case. A brief scrutiny of evidence recorded in the matter is as under.
4. PW1, Ms. Suhila Kumar, Nagar Nigam Prathmik Vidhyalaya, Wazirpur VillageI, Delhi110052, has produced on record the documents with regard to the date of birth of prosecutrix P, maintained by the school in due course, inter alia stating the date of birth of prosecutrix P to be 13.01.1996. She has proved the relevant documents in this regard as Ex. PW1/A to Ex. PW1/D. During crossexamination by learned defence counsel, PW1 termed it correct that at the time of admission of prosecutrix P in their school, her birth certificate issued by MCD or any other statutory authority was not furnished. She further termed it correct that school did not make any independent inquiry about the date of birth of prosecutrix P and stated that the school presumed the date of birth mentioned in the admission form and mark sheet of Nursery class of prosecutrix P to be correct.
5. PW2 W/Ct. Seema joined the investigations of the present case on 22.05.2014 and 23.05.2013 with the IO, at the time of getting the statement of prosecutrix P u/s 164 Cr.P.C recorded and at the time of counseling of prosecutrix PO at CWC, Kingsway Camp and deposed regarding the same. S.C. No. 60/15 : FIR no. 213/13 : PS Ashok Vihar : State vs. Rahul @ Sonu : Page No. 3 of 10 4
6. PW3, prosecutrix P did not support the prosecution case at all. The relevant portion of her testimony is as under : "xxxxxxx I do not want to say anything in this case. I am living happily with my husband and son in my matrimonial home. My in laws are living with me and I have no complaint against them also. My parents have also accepted my marriage with the accused. I was major at the time of marriage. I do not have any MCD Birth Certificate. My statement was recorded by the Police as well as by one Magistrate wherein I had specifically said that I got married with the accused with my own free will and consent.
On 22.07.2013, I was 19 years of age and hence I myself left my home with accused. I got married with the accused on 09.02.2014 and I have been living with accused since then as his wife. (photographs of marriage were proved as Ex.PW3/A1 to A5).
xxxx"
The prosecutrix P was crossexamined by learned Addl. PP, but nothing favourable supporting the prosecution, could come on record. During the said crossexamination, the prosecutrix P termed it correct that in her school record, her S.C. No. 60/15 : FIR no. 213/13 : PS Ashok Vihar : State vs. Rahul @ Sonu : Page No. 4 of 10 5 parents had got recorded her date of birth as 13.01.1996, but she volunteered to state that her aforesaid date of birth, got recorded by her parents in her school record, was on the basis of estimation and not on the basis of any actual birth certificate issued by MCD.
7. PW4 Ritu, mother of the prosecutrix P, deposed that on 31.03.2014, she had produced prosecutrix P before the police and police prepared a recovery memo Ex. PW4/A in this regard.
8. PW5 Raju, father of the prosecutrix P, deposed that on 22.07.2013, at about 2.30 pm, prosecutrix P went missing from his house without disclosing to anyone and despite efforts, she could not be traced. He further deposed that he suspected accused Rahul @ Sonu, with whom prosecutrix P used to talk and the accused was also not present in his house and hence, he lodged a complaint Ex. PW5/A against the accused before the police. He further deposed that in the month of March 2014, prosecutrix P came home with accused after their marriage and keeping in view the circumstances, both the families have accepted their marriage.
During crossexamination by learned defence counsel, the witness termed it correct that he had mentioned the date of birth of prosecutrix P in her school on estimation and that he did not get the birth of prosecutrix P registered before the office of subRegistrar. He further stated that he did not have any other documentary proof to show that prosecutrix P was born on 13.01.1996. S.C. No. 60/15 : FIR no. 213/13 : PS Ashok Vihar : State vs. Rahul @ Sonu : Page No. 5 of 10 6
9. PW6 Ct. Manoj joined the investigation of the present case with IO W/SI Rama Saroha on 12.03.2015 and deposed that on entrustment of DD No. 36B at about 11.10 am, he along with SI Rama Saroha went to village Wazirpur and made inquiry about accused Rahul @ Sonu and thereafter, they went to the house of the complainant, where they met prosecutrix P, who told that she was wife of Rahul. He further deposed about arrest of the accused at the pointing out of the prosecutrix PO vide arrest memo Ex. PW3/B and about his personal search vide memo Ex. PW6/A. He further deposed about medical examination of the accused vide MLC Ex. PW6/B.
10. PW7 W/SI Suman Bajaj only conducted formal investigation in the present case and made efforts to search the accused and deposed regarding the same.
11. In the present case, with a view to prove guilt of accused, total sixteen witnesses were cited by the prosecution, out of which, seven witnesses were examined. Considering the testimonies of PW3 prosecutrix P and her parents examined as PW4 and PW5, recording of evidence of remaining witness was not found judicious. I have perused the record carefully. The accused himself has admitted the registration of the FIR, his potency test and statement u/s 164 Cr.P.C. There is no witness, who can link the accused with the commission of offence and, therefore, no useful purpose would have been served by recording further evidence. Accordingly, prosecution evidence was closed. Recording of statement of accused was dispensed with for want of incriminating evidence. S.C. No. 60/15 : FIR no. 213/13 : PS Ashok Vihar : State vs. Rahul @ Sonu : Page No. 6 of 10 7
12. Arguments have been addressed by learned Additional PP as well as learned defence counsel.
13. I have heard the arguments from both the sides and also perused the case file carefully.
14. The learned Addl. PP has very vehemently argued that even if, the prosecutrix P has not supported the case of prosecution, considering her age as borne out from documents Ex. PW1/A to Ex. PW1/D, she was minor at the time of incident and her consent if any, was immaterial and the accused is guilty of committing the offences for which, he stands charged in the matter.
15. Per contra, the learned defence counsel has disputed the age of the prosecutrix P as mentioned in documents Ex. PW1/A to Ex. PW1/D, on the ground that the parents of the prosecutrix P had not produced any certificate issued by the Municipal Corporation or any other statutory authority with regard to the date of birth of the prosecutrix P. He further submitted that prosecutrix P did not support the prosecution case in her statement u/s 164 Cr.P.C and during her evidence before this court and as such, it is prayed that accused be acquitted of the charged offence.
16. It is apparent from record that no certificate of birth of the prosecutrix P, is S.C. No. 60/15 : FIR no. 213/13 : PS Ashok Vihar : State vs. Rahul @ Sonu : Page No. 7 of 10 8 on record. The entries of the date of birth got recorded in the school record of prosecutrix P were as per the whims and fancies of her father. Father of the prosecutrix P was examined as PW5 and during his crossexamination, he admitted that he had mentioned the date of birth of prosecutrix P in her school record on the basis of estimation. In the case of Birdi Mal Singhavi vs. Anand Purohit, 1988 Supp. SCC 601, it has been held that no evidentiary value can be given to Date of Birth entry in absence of material on which entry is made.
17. A perusal of the entire evidence recorded in the matter, further reveals that the accused had not done any overt act in either taking away or enticing the child victim from the lawful guardianship of her parents.
18. In the present case, prosecutrix P was at the verge of maturity, when she voluntarily eloped with the accused. The prosecutrix P has been examined as PW3 and she has totally exonerated the accused of all allegations and submitted that no offence of kidnapping or rape was committed with her by the accused. She rather stated that she had herself left her home with the accused as she used to love him and wanted to get married with him. She further stated that she married the accused on 09.02.2014 and is blessed with a son from this wedlock. Thus, as far as the factum of rape or taking away of the prosecutrix P for the purpose of said marriage is concerned, there is not even an iota of evidence on record.
19. In this regard, it would be relevant to refer to the case titled as " S. S.C. No. 60/15 : FIR no. 213/13 : PS Ashok Vihar : State vs. Rahul @ Sonu : Page No. 8 of 10 9 Varadarajan Vs. State of Madras (reported as AIR 1965 SC 942)", wherein while distinguishing between " taking" and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India that : " There is a distinction between " taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian."
20. It has also been held in para 8 of judgment titled as Bunty vs. State (G.N.C.T.) of Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011 by the Hon'ble Delhi High Court of Delhi as under : "8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had travelled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...."
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21. In the present case also, the element of 'taking away' or 'enticement' is found to be lacking. In view of the material on record, it appears that prosecutrix P was willing and consenting party and it seems that everything had happened with her sweet will. In these circumstances, the factum of kidnapping of prosecutrix does not stand proved. If the law laid down in the aforesaid authorities is applied to the facts of the present case, then it would be absolutely clear that the accused is not on the wrong side of law in the matter.
22. In view of the above discussions, it is hereby held that the prosecution has failed to establish the charges against the accused. Accused stands acquitted. His bail bond stands canceled and surety stands discharged. Endorsement, if any, either on the documents of surety or accused stands canceled.
23. File be consigned to Record Room.
(Announced in the open ) (Vinod Yadav)
(Court on 21.08.2015) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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