Delhi District Court
State vs Akshay Kumar S/O Sugreev Yadav on 12 October, 2012
IN THE COURT OF MS. NISHA SAXENA:
ADDL.SESSIONS JUDGE03(NE): KARKARDOOMA
COURTS: DELHI.
SC No.02/12
Unique ID No. 02402R0009612012
Date of institution:07.01.2012
Date of transfer:15.02.2012
Date on which reserved for order:08.10.2012
Date of delivery of order:12.10.2012
State Vs Akshay Kumar S/o Sugreev Yadav
R/o 288, Bapu Nagar, PS Sadar, District
Sri Ganga Nagar, Rajasthan.
FIR No. 371/11
PS Kh. Khas
U/s 363/366 IPC
JUDGMENT:
1. The factual matrix of the prosecution case is that Sudershan Yadav (father of the prosecutrix) lodged FIR that his daughter (the prosecutrix) aged about 15 ½ years, height 4 ½", shallow complexioned, round face, medium built, wearing light blue salwar suit left home at about 12.30 p.m. on 29.10.2011 without telling anyone. They tried to trace her out but could not find her. Now he had suspicion that some unknown person had enticed his daughter and his daughter may be traced out and legal action FIR no. 371/11, PS Khajuri Khas 1/20 may be initiated. The FIR disclosed an offence u/s 363 IPC. SI Sudhir (IO) tried to trace her out but no clue could be found. Thereafter IO SI Sudhir Kumar flashed a wireless message and also uploaded the information regarding kidnapping of the prosecutrix on zip net. On 7.11.2011, complainant Sudershan Yadav came to the PS and informed that his daughter (the prosecutrix) was recovered at PS Sri Ganga Nagar, Rajasthan and he had a talk with his daughter on telephone. IO took permission to go out station and alongwith Const. Roshini and complainant Sudershan Yadav reached at PS Sri Ganga Nagar where complainant identified his daughter (the prosecutrix). Statement of prosecutrix u/s 161 Cr.P.C. was recorded in which she disclosed that she contacted accused Akshay Kumar on phone who was resident of Ganga Nagar, Rajasthan. On phone she told Akshay Kumar to meet her at Delhi. Accused Akshay Kumar asked her to accompany him to his village and told her that they would marry there. The prosecutrix accompanied accused Akshay Kumar to Ganga Nagar and there she told accused that they would marry after a few days. She also disclosed that the accused had not committed sexual intercourse FIR no. 371/11, PS Khajuri Khas 2/20 upon her. Accused Akshay Kumar was also arrested by the local police u/s 109 Cr.P.C. and was sent to judicial custody. On 9.11.2011, Akshay Kumar was released on bail. Accused was apprehended in this case and information was given to his elder sister Sita. His disclosure statement was recorded. On 10.11.2011 they came back to Delhi. Prosecutrix was sent for her medical examination at GTB Hospital where the prosecutrix and her mother refused for medical examination. Offence u/s 363/366 IPC was disclosed against the accused and after completing other necessary formalities, charge sheet was filed against him.
2. Accused was charged for the offence punishable u/s 366 IPC. To the charge he pleaded not guilty and claimed trial.
3. Prosecution has examined 9 witnesses in support of its case.
● The material prosecution witnesses are PW3 (the prosecutrix), PW2 Sudershan Yadav (father of the prosecutrix / complainant) and PW4 Saraswati Devi (mother of the prosecutrix).
● To prove that the prosecturix was a minor on the date of incident prosecution has examined PW1 Ravi Kant Rai, FIR no. 371/11, PS Khajuri Khas 3/20 TGT Hindi Govt. Girls Sr. Secondary School, Sonia Vihar, Delhi, who disclosed the date of birth of the prosecutrix as per their record as 15.6.1996. He proved the entries relating to admission of the prosecutrix as Ex.PW1/A, photocopy of the transfer certificate as Ex.PW1/B, student detail as Ex.PW1/C and photocopy of the identity card of the prosecutrix as Ex.PW1/D. ● The other witnesses examined by the prosecution are police officials. PW5 SI Sudhir Kumar is the IO of the case who went to Ganga Nagar to recover the prosecutrix with PW6 H.C. Roshini and PW3 Sudershan Yadav. He recorded statement of the prosecutrix u/s 161 Cr.P.C.vide mark P3/A, arrested accused Akshay and recorded his disclosure statement. PW7 Const. Shanta Rawat accompanied the prosecutrix for medical examination and brought prosecutrix from Kilkari Rainbow Girls Home at Tahir Pur, for her statement u/s 164 Cr.P.C. PW8 Const. Virender Singh is the formal witness and PW9 SI Dinesh Kumar filed the charge sheet.
4. The defence counsel did not dispute the genuineness of FIR no. 371/11, PS Khajuri Khas 4/20 MLC of accused Akshay Kumar, MLC of prosecutrix, statement of prosecutrix u/s 164 Cr.P.C. recorded by Ld.M.M., Sh.Ankur Jain, OPD sheet of the prosecutrix and the FIR Ex. PW2/A. The documents were accordingly exhibited as Ex. C1, Ex. C2, Ex. C3 and Ex. C4 and the corresponding witnesses i.e. Dr. Abhinav JR GTB Hospital, Dr. Shikha Sharma, SR GTB Hospital, Dr. M.P. Ram, Dr. Vikash Negi, Sh. Ankur Jain, Ld. MM, KKD Courts, Delhi and HC Jagbir, Duty Officer were dropped from the array of witnesses.
5. Statement of accused was recorded u/s 313 Cr PC in which he denied the prosecution case and pleaded innocence and stated that he has been falsely implicated in the present case.
6. I have heard Ld. Addl. PP for the State and Mr. M.K. Sharma for the accused and gone through the entire record.
7. The chronological sequence of the events as disclosed by the prosecution are as follows: at 12.30 PM The prosecutrix went missing 29.10.11 at 16.05 hrs FIR was registered 02.11.11 FIR no. 371/11, PS Khajuri Khas 5/20 08.11.11 The prosecutrix was recovered from PS Sri Ganga Nagar, Rajasthan at 12.30 pm Her medical examination was got conducted 10.11.11 11.11.11 Her statement u/s 164 Cr.P.C. Ex. C3 was recorded
8. First, issue which needs to be considered by the court is whether the prosecutrix was a minor on the date of incident, I would like to advert to the testimony of PW1 Ravi Kant Rai, TGT Hindi, Govt Girls Sr. Secondary School, Sonia Vihar, Delhi who was examined to prove the date of birth of the prosecutrix as 15.06.1996. PW1 Ravi Kant Rai stated that he had been working as TGT Hindi in Govt. Girls Sr. Secondary School, Sonia vihar, Delhi since 2004. He had brought the summoned record comprising of admission register and paste file. As per school record, the prosecutrix was admitted in the school on 09.04.09 in class 6 B. She had shifted to the above mentioned school from M.C Primary School, Sonia Vihar, Delhi vide a TC certificate dated 25.03.09. As per the record she had passed class V from MC Primary School. As per the original transfer certificate document on record the date of birth of the FIR no. 371/11, PS Khajuri Khas 6/20 prosecutrix was 15.6.1996. The entries relating to admission No.3047 of the prosecutrix was Ex.PW1/A. Photo copy of the TC is Ex.PW1/B. The student details were given by the school by the Vice Principal Mrs. Kalawati Bohra whose signature he identified at point A. The document was proved as Ex.PW1/C. (Mode of proof was not disputed by the Ld. Defence Counsel). The Vice Principal Mrs. Kalawati Bohra was working in the school and she was his wife. The photocopy of the identity card of the prosecutrix was Ex.PW1/D. The said I card of the student had been issued from the school. The witness has not been cross examined and therefore it is established by the record that prosecutrix's date of birth was 15.06.96 and she was a minor being 15 years 4 months and 14 days on the date of incident. Ex.PW1/A is the entry made in the admission register in which the name of the prosecutrix is shown against admission no. 3047 and her date of birth as 15.6.96. Transfer certificate pertaining to the year 200809 Ex Pw1/B reflect the date of birth of the prosecutrix as 15.06.96. The student detail Ex. PW1/C also shows the date of birth of the prosecutrix as 15.06.96. The copy of I card is Ex.PW1/D in which also the FIR no. 371/11, PS Khajuri Khas 7/20 prosecutrix date of birth is shown as 15.6.96. Therefore the best evidence which could have been produced by the school has been placed to substantiate that the prosecutrix was a minor on the date of incident. The documents Ex. PW1/A, Ex.PW1/B, Ex.PW1/C and Ex. PW1/D are issued by the Govt. officials in discharge of their official duty and there is no reason to disbelieve the same on account of presumption attached to it u/s 35 r/w section 114 (e) of the Evidence Act. Section 35 of Indian Evidence Act is reproduced as under: Relevancy of entry in public [record or an electronic record] made in performance of duty: An entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact.
Section 114 (e) of Indian Evidence Act is also reproduced as under: Court may presume existence of certain FIR no. 371/11, PS Khajuri Khas 8/20 facts: The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustration
The court may presume
(e) That judicial and official acts have
been regularly performed;
Although no entry regarding date of birth of the prosecutrix from the office of Registrar Births and Deaths has been produced in this case yet the school record produced in this case clearly indicates that her age was less than 16 years on the date of occurrence. Precisely her age was 15 years 4 months and 14 days on 29.10.11 i.e. the date of incident. In Umesh Chandra Vs State of Rajasthan, 1982 SCC (Crl.) 36, their Lordships of the Hon'ble Apex Court have held that the entries in the school register and admission forms regarding the date of birth constitute good proof of age and where these entries are antelitem mortem, there was no reason to disbelieve them. Pw3 (the prosecutrix) also stated in her cross examination by the FIR no. 371/11, PS Khajuri Khas 9/20 prosecution that she used to study in Govt. Girls Senior Secondary School in class 7th in 2011. Her date of birth was 15.06.1996. She admitted that she was studying in class 8th in the year 2011.
9. Now the main thrust of the prosecution story lays upon the statement of the prosecutrix, if the statement of the proseuctrix is found convincing and truthful the prosecution may nail the accused. In her testimony before the court PW3 (the prosecutrix) stated that she had a quarrel with a neighbour and she left her house in anger and went to Anand Vihar. She boarded a bus for Rajasthan and accused met her at Bapu Nagar. Thereafter she was taken to some police station. From there she made a telephone call to her father and thereafter her father brought her back and she did not know anythings else. Nobody had told her whatever she had deposed in the court and she had nothing else to say. From the examination of this witness it can be gathered that she was not enticed or compelled by the accused to accompany him rather she has stated that in the anger she went to Anand Vihar and boarded a bus for Rajasthan due to quarrel with a neighbour. She was cross examined by the FIR no. 371/11, PS Khajuri Khas 10/20 prosecution as she had been resiling from her previous statement. She admitted in her cross examination by the prosecution that she knew the accused about two months prior to the incident and she also used to have conversation with him. She did not remember if she had spoken to accused Akshay on 29.10.11 on mobile and called him at Sonia Vihar and accordingly he came to Sonia Vihar to meet her. She could not admit or deny the suggestion whether she had called him at Sonia Vihar on the aforesaid date. Attention of the witness was drawn to statement mark P3/A from portion A to A1 where it was so recorded. She had not stated that accused Akshay told her that he wanted to marry her and thereafter he had taken her with him to Sri Ganga Nagar at Rajasthan. She was confronted with statement mark P3/A from portion B to B1 where it was so recorded. She denied the suggestion that she had stated that accused Akshay told her that he wanted to marry her and thereafter he had taken her with him to Sri Ganga Nagar at Rajasthan. She admitted that she and the accused had not married till then but preparations for marriage were going on but before the marriage could be solemnized the police arrived FIR no. 371/11, PS Khajuri Khas 11/20 and took her and the accused to PS Sri Ganga Nagar. She admitted that she was sent to Manav Kalyan Samiti Sanstha at Sri Ganga Nagar by the police. Accused Akshay was sent to jail. She admitted that the local police of Delhi had reached Ganga Nagar Rajasthan and recorded her statement. She admitted that her statement was also recorded by the magistrate already Ex. C3 and signed by her at point A. Whatever she narrated before the Magistrate in her statement in Ex. C3 was true and correct and no part of it was false. She had narrated before the Magistrate in her statement that on 29.10.11 she had made a telephone call to accused Akshay and had called him and he told her that they should go outside. She also told him that he should show his house to her. Thereafter she went to his house and accused stayed with his mother and she resided with his sister. She admitted that accused proposed to her for marriage and she told him that he should wait for 23 days and thereafter the police arrived and they were apprehended. She admitted that telephone call was made to her father on which her father and Delhi police came to Ganga Nagar and thereafter they returned back to Delhi. She admitted her signature on Ex. PW2/G. In her FIR no. 371/11, PS Khajuri Khas 12/20 cross examination a specific question was put to her as under: Q. I put it to you that at the beginning of your examination in chief today in the court you stated you had left her house in anger and accused did not have any role to play in it, was that statement correct or the subsequent part where you have made certain allegations against the accused ?
Ans. The beginning part of my statement recorded today in the court is correct.
She was reexamined by the Ld. Addl. PP wherein she stated that subsequent part (as shown in the cross examination by State) was false.
10. PW2 is Sudershan Yadav (father of the prosecutrix) who stated that on 29.10.2011, his daughter (the prosecutrix) went from the house at about 12.30 p.m. without informing them anything. He tried to search for her but he did not find her. He had gone to the PS on 2.11.2011 to lodge the present complaint and the present FIR Ex.PW2/A was recorded on his statement. On 7.11.2011 he received a telephone call from Ganga Nagar from a police station and the caller asked him if his daughter had gone missing and he told him that his case was already registered in the PS at Delhi. They informed that his daughter (the prosecutrix) had been recovered and she was presently in FIR no. 371/11, PS Khajuri Khas 13/20 the PS at Ganga Nagar. He immediately left for Ganga Nagar and reached in the morning of 8.11.2011. He had gone to the PS. The local police of PS Khajuri Khas had also accompanied him comprising of SI Sudhir Kumar and Lady H.C. Roshini. The local police carried out the necessary proceedings and his daughter accompanied him and documents regarding the handing over were prepared which are Ex.PW2/B and Ex.PW2/C. He identified his daughter in Ganga Nagar. She was accordingly brought to Delhi. Accused Akshay was also present in the local PS at Ganga Nagar and he was also arrested vide his arrest and personal search memo Ex.PW2/D and Ex.PW2/E. He also made a disclosure statement Ex.PW2/F. He handed over the custody of his daughter to Lady Ct. Santa Rawat in PS Khajuri Khas on 10.11.2011 and a memo in this regard was prepared which is Ex.PW2/H and same was signed by him at point A. Her medical examination was also conducted. In his cross examination he stated that he had never seen the accused prior to his visit at Ganga Nagar. He had seen him for the first time in the PS Ganga Nagar. His daughter had told him that accused Akshay had not done any 'galat kaam' FIR no. 371/11, PS Khajuri Khas 14/20 with her. He had come to know the name of accused as Akshay in the PS.
11. In her statement u/s 164 Cr PC which has been proved as Ex. C3 the prosecutrix stated that: "Dinank 29.10.11 ko hamne Akshay naam ke ladke ko phone kiya aur oose bulaya aur ghumne jaane ke liye kehne laga, aur maine oose bola ki woh mujhe apna ghar dikhaye, phir hum ooske ghar chale gaye aur woh apni mummi ke paas rha aur main ooski didi ke paas, oosne mujhe shaadi ke liye bola to maine oose bola ki 24 din rook jaate hai, phir hume police ne aake pakad liya, phir wahan se papa ko phone kiya jo yahan se police lekar gaye, phir ham Delhi aa gaye"
English translation :"On 29.10.11 I made a telephone call to a boy namely Akshay Kumar. I called him and asked him to take me out. I asked him to show me his house. We went to his house. He stayed with his mother while I stayed with his sister. He proposed me for marriage. I asked him to wait for 24 days. Police caught us. Thereafter a call was made to my father and police took us back and we came back to Delhi".
12. PW4 Saraswati (mother of the prosecutrix) stated that she FIR no. 371/11, PS Khajuri Khas 15/20 along with her daughter (the prosecutrix) had gone to GTB hospital for her medical examination and in the hospital she and her daughter refused for her medical examination. Thereafter she had come to KKD court with the IO and her daughter. The prosecutrix was sent to Kilkari Girls Home. On 11.11.11 she had gone to Kilkari Girls Home from where her daughter (the prosecutrix) was brought to KKD court wherein the statement of her daughter was recorded in the court. Thereafter her daughter was sent to CWC Tahirpur and from CWC the custody of her daughter was handed over to her.
13. Therefore, none of the prosecution witnesses have made any allegation against the accused that it was he who kidnapped the prosecutrix or enticed prosecutrix with an intent to compel her to marry him against her will. In her statement u/s 164 Cr PC the prosecutrix stated that she called the accused and asked him to take her home and also asked him to show his house whereas in the testimony of the prosecutrix she stated before the court that due to a quarrel with the neighbour she left her house in anger and boarded a bus for Rajasthan from Anand Vihar and went to Bapu Nagar where the accused met him. She FIR no. 371/11, PS Khajuri Khas 16/20 categorically stated in her cross examination by the state that she had not stated that accused Akshay told her that he wanted to marry her and thereafter he had taken her with him to Ganga Nagar at Rajasthan. She was confronted with statement mark P3/A from portion B to B1 where it was so recorded. The prosecutrix has changed her stand time to time and therefore she is not a credible. There is nothing to show that the accused kidnapped the prosecutrix from the lawful guardianship of her father or enticed her in any manner. The prosecution is required to prove the case against the accused beyond reasonable doubt. There is nothing on record that there was some kind of inducement held out by the accused or an active participation by him in the formation of the intention of the minor to leave the house of her guardian. In order to hold that accused enticed away the prosecutrix, it is necessary to have some evidence to the effect that accused had given her some temptation or promise or assurance or allurement which had the effect of an irresistible force upon the prosecutrix.
14. In S. Varadarajan V. State of Madras, AIR 1965 SC 942, the Hon'ble Supreme Court while dealing with the case of a FIR no. 371/11, PS Khajuri Khas 17/20 minor girl who was on the verge of attaining majority and who herself telephoned the accused to meet her and finding him waiting with a car, got into that car of her own accord, held that the accused was not guilty of taking out the girl out of the lawful guardianship of her father as there was no suggestion that the act was done by force or anything like that on the part of the accused.
15. Section 366 IPC is an aggravated form of offence u/s 363 IPC. If a person kidnaps a minor girl with intent that she may be compelled or knowing it to be likely that she would be compelled to marry any person against her will, the accused may be punished under this section. The basic condition for the applicability of section 366 is that the person charged must have committed an offence of kidnapping as defined in section 363 IPC.
16. The kidnapping has been defined u/s 361 of the IPC as under: "Whoever takes or entices any minor under 16 years of age if a male, or under 18 years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or FIR no. 371/11, PS Khajuri Khas 18/20 person of unsound mind, without the consent of such guardian is said to kidnap such minor or person from lawful guardianship."
17. The most important ingredient of this section is taking or enticing away a minor or a person of unsound mind from keeping of the lawful guardian. Before a person is said to have kidnapped a minor there must be some proof of his having done something which led to removal of the minor from the keeping of her guardian. The statement of the prosecutrix does not indicate how the accused was the proximate or the immediate cause of the prosecutrix going out of the keeping of her parents. It is not shown that the accused took some active step in persuading or inducing the prosecutrix to leave her home. The prosecution also failed to prove that some arrangements for the marriage were done before the prosecutrix was recovered from the custody of the accused.
18. Section 366 IPC requires two things :
(i) The criminal intimidation or abuse of authority or by compulsion inducing any woman to go from any place.
(ii) Such going must be with intent that she may be, or with FIR no. 371/11, PS Khajuri Khas 19/20 knowledge that, it is likely that she will be, forced or seduced to illicit intercourse, with some person or that she may be compelled to marry someone.
Both the important ingredients of section 366 IPC is missing in the prosecution case.
19. The testimony of the prosecutrix is strewn with inconsistencies and discrepancies and therefore her statement does not inspire much confidence and the prosecutrix was found changing her version from stage to stage. Her testimony does not appear to be convincing and truthful.
20. Taking into consideration the inherent probabilities and material contradictions referred to above in the prosecution story no implicit reliance can be placed on the testimony of the prosecutrix. I am of the considered opinion that the prosecution has not been able to bring home charge against the accused beyond reasonable doubt, I hereby acquit the accused. He be released from custody if not required in any other case. File be consigned to record room.
Announced in open court (Nisha Saxena)
Dated:12.10.2012 Addl. Sessions Judge03(NE):
KKD Courts, Delhi
FIR no. 371/11, PS Khajuri Khas 20/20