Delhi District Court
State vs Dinesh Chand S/O Suresh Chand, on 26 July, 2012
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : NORTH EAST /
KARKARDOOMA COURTS: DELHI.
Case ID Number. 02402R0163372012
Sessions Case No. 44/2012
Assigned to Sessions. 08.06.2012
Arguments heard on 25.07.2012
Date of Judgment 26.07.2012
FIR No. 10/2011
State Vs Dinesh Chand s/o Suresh Chand,
1. r/o Village Kotha Chamoli, Garhwal,
P.S. Ghirali, Distt. Uadham Singh
Nagar, Uttrakhand.
Police Station Seemapuri
Under Section 363/366/376 IPC
JUDGEMENT
1. Vide this judgment I shall dispose off this case in which Station House Officer of Police Station Seemapuri had filed a challan vide FIR No.10/2011 dated 15.01.2011 u/s 363/366/376 IPC for the prosecution of accused Dinesh Chand in the court of ld. Metropolitan Magistrate and section 207 Cr. P.C. had already been complied with by Ld. M.M. Since, this court is designated court for trial of the cases pertaining to child victims, hence this case was sent by Ld. District Judge/Incharge, North East District, Karkardooma Courts to this court for trial. Keeping in view of section 228 (A) IPC and directions of Hon'ble Supreme court SC No.44/2012 State Vs. Dinesh Chand 1/16 in "State of Karnataka Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of U.P. 2006, CRLJ. 2913", the name of prosecutrix is not being given in the judgment.
2. In brief, the facts of the case are that on 15.01.2011 at about 9:10 p.m. Sh. Robin Mandal, father of victim had reached at police station Seemapuri and got recorded his statement to the police stating therein that his daughter/prosecutrix aged about 13 years was found missing from his house, upon which FIR No.10/2011 u/s 363 IPC Ex.PW3/B was registered against unknown person. During the course of investigation police had arrested accused Dinesh Chand after about period of one year.
CHARGE:
3. On the basis of material available on record this court vide order dated 23.07.2012 framed a charge against accused Dinesh Chand for the offences punishable u/s 363/366/376 IPC to which accused did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
4. In order to prove its case prosecution has examined 04 witnesses namely PW1 -
Prosecutrix, PW2 Smt. Rina Mandal - mother of prosecutrix, PW3 Sh. Robin Mandal - father of prosecutrix and PW4 W/ASI Shakun.
5. PW1 Prosecutrix is a material witness being victim. This witness has been got SC No.44/2012 State Vs. Dinesh Chand 2/16 declared hostile by Ld. APP for the State as this witness has not supported the prosecution on any count. This witness has deposed that on 05.01.2011, she was 16 ½ years old when she had left the house with accused and accused took her to Rudrapur, Uttrakhand where they got married in a temple. She has further deposed that accused had not taken her against her wish and he did not compel her to marry with her rather she forced him to marry with her. She had further deposed that since then she is residing with him as his wife willingly and one female baby born out from their wedlock.
6. This witness has been cross examined by the Ld. APP for the State and her statement u/s 164 Cr.P.C. Ex.PW1/A, statement to police Ex.PW1/B and MLC Ex.PW1/D were confronted. This witness had denied all the suggestions which were put to her by Ld. APP for the State.
7. In her cross examination by ld. defence counsel, this witness admits that she had gone along with accused of her own and that she had insisted accused to marry her as she was in love with him. This witness further admits that accused never committed any wrong act against her wish.
8. PW2 Smt. Rina Mandal, mother of victim is a material witness. This witness has been got declared hostile by Ld. APP for the State as this witness has not supported the prosecution on any count.
SC No.44/2012 State Vs. Dinesh Chand 3/16
9. This witness has deposed that on 05.01.2011 she along with prosecutrix had left their house at about 7:00 a.m. For their work as maid towards Dilshad Garden, Delhi and in the way, she found her daughter missing and when her daughter did not return to their house in evening then she started search of her daughter here and there but in vain till 810 days and on 15.01.2011 she along with her husband had gone to police station Seemapuri where her husband lodged a missing report against unknown person. This witness had given a photograph mark 'X' of her missing daughter to the police.
10.This witness has further deposed that on 07.03.2012 she had received a telephone call of accused Dinesh that he along with her missing daughter was residing at his native village. This witness has further deposed her daughter had never joined school.
11.This witness has been cross examined by the Ld. APP for the State and her statement Ex.PW2/B was confronted. This witness had denied that actual date of birth of prosecutrix is 12.10.1997 as mentioned in her birth certificate mark 'X'. This witness had denied all the suggestions which were put to her by Ld. APP for the State.
12.PW3 Sh. Robin Mandal, father of victim is a material witness and on whose statement present case was registered. This witness has also been got declared hostile by Ld. APP for the State as this witness has not supported the prosecution SC No.44/2012 State Vs. Dinesh Chand 4/16 on any count.
13.This witness has deposed that on 05.01.2011 at about 07:00 p.m. he reached at his house and it came into his notice that his daughter was missing. He and his family members made search of victim here and there but in vain, on 15.01.2011 he had lodged a missing report of prosecutrix at police station Seemapuri and one photograph of prosecutrix mark 'X' had been delivered to police.
14.This witness has been cross examined by the Ld. APP for the State and his statement Ex.PW3/A was confronted. This witness had denied all the suggestions which were put to him by Ld. APP for the State.
15.In his cross examination by ld. Defence counsel, this witness admits that on the day of missing prosecutrix was 16 ½ years old and prosecutrix was residing happily at her matrimonial house along with her baby when they had reached there on 07.03.2012.
16.PW4 W/ASI Shakun is a material witness being 2nd I.O. This witness has deposed that on 13.03.2012, further investigation of this case was assigned to her by the oral order of senior police official and she had collected present case file from previous I.O/SI Vikas and by that time accused Dinesh Chand was in custody and statement of prosecutrix u/s 164 Cr.P.C. had been recorded. This witness has further deposed that on the same day, prosecutrix was produced before CWC, SC No.44/2012 State Vs. Dinesh Chand 5/16 where, concerned official conducted proceeding and she along with her baby was released in favour of her mother.
17.This witness has further deposed that on 17.05.2012 she had got victim medically examined in GTB Hospital and on next day, she had taken exhibits of this case to FSL for DNA test.
18.In her cross examination by ld. Defence counsel, this witness denied that age of the prosecutrix was more than 17 years when she got her medically examined in GTB Hospital. This witness has further deposed that she cannot say whether prosecutrix was willing to live with her husband (accused in this case) or not.
19.On being found not supporting the case by these witnesses being the material witness, as no purpose would be served by further trial of this case. Accordingly, P.E. was closed. Request of Ld. APP for the State to examine the other Pws has been declined.
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
20.After prosecution witnesses, statement of accused u/s 313 Cr. P.C. was recorded wherein accused had denied all circumstances and evidence put to him and claimed to be innocent and that was implicated falsely. Accused has deposed that he had married with Lipika Mandal and they have a female baby. Accused has not SC No.44/2012 State Vs. Dinesh Chand 6/16 preferred to lead any D.E.
21.Thereafter, case was fixed for arguments.
ARGUMENTS:
22.Ld. APP for State argued that present accused has been prosecuted under section 363/366/376 IPC.
23.Ld. APP for the State further argued that age of victim is 13 years as per documents available on record.
24.Ld. APP for State further argued that official witness has supported the case of prosecution. Hence, he has prayed to convict the accused under the section for which he has been charged.
25.On other hand Ld. defence counsel for accused argued that victim was aged about 16 ½ years as on day when she had left her house with accused and now they had married to each other.
26.Ld. counsel for accused further argued that presently prosecutrix is aged about 17 ½ years.
27.Ld. counsel for accused further argued that accused is in JC from 07.03.2012 and SC No.44/2012 State Vs. Dinesh Chand 7/16 no age certificate/birth certificate of prosecutrix has been placed on record.
28.Ld. counsel for accused further argued that no school record could be brought on record pertaining to actual date of birth nor birth certificate of prosecutrix has been brought on record to ascertain the age of prosecutrix. Since prosecutrix in her examination in chief has deposed that she was 16 ½ years old when she had left the house with accused.
29. since victim is living with accused and victim has not supported the case of prosecution on any point of time being material witness. Hence, ld. counsel for accused has prayed for acquittal of accused Gulshan. PERUSAL OF RECORD:
30.Argument heard. Record perused. On perusal of record it is revealed that on the statement of complainant PW3 Sh. Robin Mandal present case was registered and victim/prosecutrix in her statement u/s 164 Cr. P.C. had not leveled any allegations of either nature against accused Dinesh Chand and claimed that she had left her house with accused for Rudrapur her own will. In her statement u/s 164 Cr.P.C. she has deposed that she had got married with accused Dinesh Chand at Rudrapur.
31.On perusal of record, it is further revealed that MLC Ex.PW1/C of prosecutrix shows age of prosecutrix as 15 years and in her MLC prosecutrix had not put any allegation against accused. Further, MLC of prosecutrix shows no external injury. SC No.44/2012 State Vs. Dinesh Chand 8/16
32.On perusal of record, it is further revealed that as per birth certificate issued by Office of the Maslandapur II Gram Panchayet mark - 'X', date of birth of prosecutrix is 12.10.1997.
33.Before reaching at any conclusion let the relevant sections i.e. 363/366/376 IPC be reproduced, which are as under : Section 363 IPC: "Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Section 366 IPC "Kidnapping, abducting or inducing woman to compel her marriage, etc - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to find, and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid." Section 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a SC No.44/2012 State Vs. Dinesh Chand 9/16 term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever,
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii)on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution' or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) Commits rape on a woman when she is under twelve years of age; or
(g) Commits gang rape, shall be punished with rigorous imprisonment for a term which SC No.44/2012 State Vs. Dinesh Chand 10/16 shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection. Explanation 2 "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.
34.Having given careful consideration to the statement of material witnesses ie. PW1 prosecutrix, PW2 and PW3, it is revealed that these witnesses have not supported the prosecution case on any count and they have not made any allegation against the accused in support of prosecution. Even in her statement u/s 164 Cr.P.C. PW1 Prosecutrix has deposed that she was in love with accused Dinesh Chand and she had left the house for Rudrapur with accused with her consent. Further, PW1 Prosecutrix in her statement u/s 164 Cr.P.C. has not levelled any allegation against accused regarding committing of rape upon her. Otherwise also from the conduct of prosecutrix it appears that prosecutrix was of more than 16 years. SC No.44/2012 State Vs. Dinesh Chand 11/16
35.Since the present case was registered on the statement of PW3 Sh. Robin Mandal who is the father of victim/prosecutrix and as per his statement she was 16 ½ years old on the day of incident but no documentary proof of date of birth he could placed on record. PW3 has placed a certificate issued by the Office of the Maslandapur II Gram Panchayet, P.O. Salua No.3, Govt. Colony, North 24 Parganas, mark - 'X', which shows date of birth of prosecutrix is 12.10.1997 but same cannot be treated as actual birth certificate for the purpose of date of birth of prosecutrix. Even, complainant could not produce any relevant document pertaining to the date of birth of victim upon which her exact date of birth can be assessed. Merely saying that victim was less then 16 ½ years old at the time of incident is not sufficient unless same is corroborated by any documentary evidence.
36.Hon'ble Gauhati High Court in case "Mihir Das Vs. State of Tripura, 2006 Cri.L.J. 1500", has held that :
"Indian Penal Code, 1860, Section 366 - Kidnapping - Kidnapping - Proof - Evidence on record showing that victim aged 16 years on her own consent travelling with appellant, her boy friend and cannot be said that it amounts to taking her out keeping of her lawful guardian - Kidnapping can be said to have taken place only when she was detained against her will for purpose of pressurising her to agree to his proposal of marriage - Victim, nowhere in her statement disclosed that appellant put pressure on her to marry her boy friend - Held, that the appellant cannot be said to be guilty of kidnapping victim and consequently this appeal merits for acceptance - Appeal allowed."SC No.44/2012 State Vs. Dinesh Chand 12/16
37.Hon'ble High Court of Rajasthan in case "Sukhwant Singh Vs. State of Rajasthan, 2006 (2) Crimes 265," has held that :
"Criminal - Acquittal - Benefit of Doubt - Sections 366 and 376 of Indian Penal Code, 1860 (IPC) - Present appeal filed against order of conviction under Sections 366 and 376 of IPC - Held, testimony of prosecutrix cannot at all be said to be reliable, trust worthy or worthy of credence so as to place reliance - Her testimony did not inspire any confidence - Therefore, it was too difficult to accept truthfulness of version of prosecutrix that any sexual assault as alleged was committed on her - Therefore it must be concluded that prosecutrix in case was one on whose testimony no reliance can be placed There was no evidence either direct or circumstantial which could lend assurance to her testimony - Conduct of prosecutrix reveals that she had gone voluntarily with Appellant - There were no signs of recent inter course, it must be hold that culpability of Appellant did not established - Prosecution was obliged to prove on basis of evidence that there was some such undue force on prosecutrix either to marry Appellant or to have intercourse with him - Prosecution has failed to prove beyond doubt that there was undue force on prosecutrix either to marry Appellant or to have intercourse with him - Conduct of prosecutrix reveals that she voluntarily boarded in truck at her own accord of which Appellant was driver and had also paid amount as against fare - Evidently she planned her departure and had willingly gone away with Appellant in is truck - It further indicates that there was no threat or inducement either in regard to her leaving place or in regarding to accompanying Appellant - Conviction of Appellant under Section 366 IPC also cannot be sustained Appeal allowed and conviction set aside and Appellant acquitted."
38.Since the evidence of prosecutrix shows that she did not support to case of prosecution and prosecutrix had denied that accused had made physical relation with her against her wish. Hence, offence u/s 376 IPC is not made out against the accused.
SC No.44/2012 State Vs. Dinesh Chand 13/16
39.Further, PW2 prosecutrix has also deposed that she had visited Rudrapur along with accused and performed marriage with accused Dinesh Chand with her consent and a female baby child has been born out from said wedlock. Hence, offence u/s 366 IPC is also not made out against the accused.
40.It is correct that evidence of hostile witness cannot be washed out in toto but in the present case PW1, PW2 and PW3 even in their cross examination by Ld. APP for the State have not supported the case of prosecution. If anything had happened wrong with prosecutrix then she could come out with those facts. Since prosecutrix had not levelled any allegation regarding rape nor she had stated that accused kidnapped the prosecutrix with intention to marry against her will or in order that she might be forced to illicit intercourse. In order to bring home the guilt of accused u/s 366 IPC it is necessary for prosecution to prove that accused induced the prosecutrix with intend that prosecutrix may be seduced to illicit intercourse. Since all these requirements of law has not been complied with by prosecution. Hence, charge u/s 376/366 IPC is not made out against accused Dinesh Chand beyond reasonable doubt. Hence, it would also not be in the interest of justice to convict the accused. Accordingly, this court acquit accused Dinesh Chand from charges u/s 366/376 IPC beyond reasonable doubt.
41.As far as section 363 IPC is concerned, in order to sustain the charges under this section the age of victim must be proved by the prosecution. Since it is not SC No.44/2012 State Vs. Dinesh Chand 14/16 disputed that victim/prosecutrix was 16 ½ years old on the day when she had left her house along with accused and to establishing the age of victim no documentary evidence has been placed on record by the prosecution showing that prosecutrix was more than 18 years on the day when accused had kidnapped her.
Section 361 IPC. Kidnapping from lawful guardianship. 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.
Explanation. The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
Exception. This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such actis committed for an immoral or unlawful purpose.
42.Hon'ble Supreme Court in case titled as "Kuldeep K. Mehato v State (1998) 6 SCC 420", wherein it has held that :
"Accused carried the prosecutrix, who was then below 18 years, in a tempo to another place and silenced her at the point of a dagger. Hence, offence of kidnapping was made out. However, in the absence of evidence to indicate that the accused kidnapped the prosecutrix with the intention of marrying her against her will or in order that she might be forced to illicit intercourse, conviction under section 366 cannot be sustained."SC No.44/2012 State Vs. Dinesh Chand 15/16
43.Since it is admitted position that no documentary proof pertaining to date of birth of prosecutrix has been placed on record. However, it is admitted by the prosecutrix/victim that she was 16 ½ years old on the day when she was kidnapped by accused. Accordingly, this court comes to the conclusion that prosecution has proved its case against accused Dinesh Chand u/s 363 IPC beyond reasonable doubt. Hence, accused Dinesh Chand is convicted u/s 363 IPC. PRONOUNCED IN THE OPEN COURT ON THIS 26.07.2012 (RAMESH KUMARII) ASJ01/ NORTH - EAST KARKARDOOMA COURTS, DELHI SC No.44/2012 State Vs. Dinesh Chand 16/16 IN THE COURT OF SH. RAMESH KUMAR - II, ADDITIONAL SESSIONS JUDGE - 0I : North East / KARKARDOOMA COURTS: DELHI.
FIR No. 10/2011
State Vs Dinesh Chand s/o Suresh Chand,
1. r/o Village Kotha Chamoli, Garhwal, P.S.
Ghirali, Distt. Uadham Singh Nagar,
Uttrakhand.
Police Station Seemapuri
Under Section 363/366/376 IPC
ORDER ON SENTENCE:
26.07.2012
Pre: Ld. APP for the state.
Convict in JC.
Sh. R.K. Chanda, ld. counsel for convict.
Ld. APP for the State submits that since the offence u/s 363 IPC has been proved against the convict Dinesh Chand. Hence, he be convicted for maximum sentence as per law.
On the other hand, ld. counsel for convict has prayed that convict is in JC and facing trial regularly. Ld. counsel for convict further submits that convict and prosecutrix are living together and they are having one minor child and for looking after the minor child, convict be released on undergone. Ld. counsel for convict further stated that convict belongs to a poor family. Ld. counsel for convict has requested for lenient view and requested to release the convict for the sentence SC No.44/2012 State Vs. Dinesh Chand 17/16 already undergone.
Arguments heard. Record perused. From the perusal of record it has been established that accused has been held guilty for kidnapping of victim from lawful guardianship of her parents and during these days victim is residing at the house of convict and they are having one minor child. Although it is correct that convict was the offender but is also correct that victim is residing at the house of convict as his wife. Further, it is also not disputed that the convict is in JC for period of about five months and he is also having minor baby from prosecutrix. Keeping in view the welfare of minor child, further sentence would serve no purpose. Hence it would justifiable to release the convict on undergone. The ends of justice will meet if convict Dinesh Chand is sentenced to a period of already undergone and fine of Rs.500/ for offence u/s 363 IPC in default convict shall undergo S.I for one month. Fine of Rs. 500/ paid.
Accordingly, convict released on period already undergone and on fine of Rs.500/ . In terms of section 437 A Cr.P.C. convict Dinesh Chand is hereby directed to execute bail bond in sum of Rs.10,000/ each with one surety in the like amount for the period of six months. Orders accordingly.
Copy of judgment and sentence be given forthwith to convict free of cost. File be consigned to record room.
PRONOUNCED IN THE OPEN
COURT ON THIS 26.07.2012 (RAMESH KUMARII)
ADDL. SESSIONS JUDGE01/NORTH EAST
KARKARDOOMA COURTS: DELHI
SC No.44/2012
State Vs. Dinesh Chand 18/16
SC No.44/2012
State Vs. Dinesh Chand 19/16