Delhi District Court
Hon'Ble Supreme Court In S. Vardarajan vs . State Of Madras Air on 14 May, 2008
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IN THE COURT OF Ms. BIMLA KUMARI,
ADDITIONAL SESSION JUDGE,
ROHINI COURT, DELHI
Case I.D. No. 02404R0266732007
SC No. 29/07
FIR No. 201/07
P.S. Mangol Puri
U/s.: 363/366/376 IPC
State
Vs.
Parveen Kumar s
S/o Sh. Bazari Lal
R/o E-302, Manglo Puri, Delhi.
Arguments heard on : 30.04.2008
Judgment announced on : 14.05.2008
JUDGMENT:
1. In the present case, charge was framed against the accused Rajeev in respect of offence U/s. 363 IPC with the allegations that on 05.03.2007 at about 12.00 Noon he kidnapped the prosecutrix out of the keeping of lawful guardian of the complainant and without his consent. Charge was also framed against the accused in respect of offence U/s. 366 IPC with the allegations that 2 he kidnapped the daughter of complainant with such intention that prosecutrix will be forced or seduced to illicit intercourse with him. Charge was also framed against the accused in respect of offences U/s. 365/376 IPC with the allegations that he abducted the prosecutrix with intend to cause her to be secretly and wrongfully confined at Pauri Garhwal, Uttranchal and thereafter committed rape upon her repeatedly from 06.03.2007 to 31.03.2007. Accused pleaded not guilty of the said charges and claimed trial.
2. To prove its case, prosecution has examined 19 witnesses. They are ASI Rani Jassal (PW-1), HC Niranjan Singh (PW-2), Smt. Maya Devi (PW-3), HC Bijender Singh (PW-4), Dr. Binay Kumar (PW-5), Dr. R.K. Mishra (PW-6), Sh. S.K. Gupta (PW-7), Dr. V.K. Jha (PW-8), Ct. Surekha (PW-9), Beena Kumari (PW-10), Sh. Amar Singh (PW-11), Dr. Renu Gupta (PW-12), Shashi Bala (PW-13), Ct. Rajpal (PW-14), HC Niranjan Singh (PW-15), Munish Kumar @ Pappu (PW-
16), Ct. Sunil Kumar (PW-17), SI Ram Kanwar (PW-18) and Ms. Barkha Gupta (PW-19).
3. Statement of accused U/s. 313 Cr.PC was recorded where he has denied the allegations of prosecution and submitted that he is innocent. He has been falsely implicated in this case by the police in connivance with the complainant. All things were done with the consent of prosecutrix. He preferred not to lead evidence in his defence.
4. I have heard arguments from Ld. Counsel for the accused 3 and Ld. APP for the State.
5. Ld. Counsel has prayed for acquittal by submitted that material witnesses have not supported the prosecution case. On the other hand, Ld. APP has submitted that prosecutrix was minor and her consent is immaterial. Therefore, accused be convicted for the offences he was charged with.
6. First of all, I come to Section 363 IPC. To prove the commission of offence U/s. 363 IPC by the accused the following conditions must be fulfilled :- (1) Taking and enticing of any minor or any person of unsound mind (2) Taking and enticing should be out of the keeping of the lawful guardian of such minor or person of unsound mind (3) Such taking or enticing must be without the consent of such guardian (4) The minor should be under 16 years in case of male and under 18 years in case of female.
7. A perusal of Section 363 IPC shows that taking or enticing of a minor or a person of unsound mind is the one of the essential ingredients of the offence. The difference between taking and allowing a minor to accompany a person has been defined by the Hon'ble Supreme Court in S. Vardarajan Vs. State of Madras AIR 1965 SC 942, In this case: it was interalia held that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it cannot be laid down that in no conceivable circumstances can the two be 4 regarded as meaning the same thing for the purposes of S.361. Where the minor leaves her father's protection knowingly 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. Something more has to be shown in a case of his kind and that is some kind of inducement held out by the accused person or an active participation by him in formation of the intention of the minor to leave the house of guardian.
The Hon'ble Supreme Court also observed that it would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her alongwith him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount of "taking".
58. Now, the first question that arises for consideration is whether prosecutrix is minor in the present case. PW-3, who is mother of prosecutrix has deposed in her cross-examination that her daughter was admitted in a government school. She had got her admitted in the school. She (the witness) did not produce any birth certificate of her daughter at the time of admission in the school.
9. PW-6 Dr. R.K. Mishra has conducted the ossification test of the prosecutrix. He is a Member of Medical Board. He deposes that he conducted the bone age examination of prosecutrix and after examination of X-ray plates of various joints, he opined that her bone age was between 16-18 years. His detailed report in this regard is Ex. PW 6/1.
10. Another witness is PW-7 Sh. S.K. Gupta. This witness has proved the Admission Register of school pertaining to the year 2003. As per the said register, the date of birth of prosecutrix, vide Admission No. 6323 dated 08.04.2003 was 05.05.1992. The relevant extract of the register is Ex. PW 7/1. He further deposes that the certificate Ex. PW 7/2 was issued on 02.02.2007 by the Vice- Principal of school. In cross-examination of the witness has deposed that Entry at Sl. No. 6323 was made on the basis of the certificate issued by the primary school. He cannot tell on what basis the primary school certificate had been issued.
11. Dr. V.K. Jha has been examined as PW-8. He was Chairman of the Bone Age Estimation Board. He deposes that bone 6 age estimation of prosecutrix was done by a panel of four doctors including himself. He physically examined the patient, on the basis of which opinion was given and the age of prosecutrix was opined between 16-18 years vide report Ex. PW 6/1.
12. Sh. Amar Singh, the father of the prosecutrix, has been examined as PW11. He deposes that the proof of age of his daughter issued by Vice-Principal, Govt. Sr. Sec. School, Mangol Pur Kala was handed over by him to the I.O. which was taken into possession vide Memo Ex. PW 11/B. In cross-examination, the witness has deposed that he did not obtain any age proof/birth certificate of his daughter from the village. The prosecutrix was admitted in the school by her mother, who is illiterate.
13. A perusal of school certificate Ex. PW 7/2 shows that she was minor at the time of commission of offence by the accused. However, as per bone X-ray report Ex. PW 6/1 her age was 16-18 years. Her mother PW-3 has categorically deposed that she did not produce any birth certificate of her daughter at the time of her admission in the school.
14. In Satish Kumar V. State 1988 Crl. L.J. 565, it was interalia held that where there is a conflicting evidence as to the age recorded in the school leaving certificate and as ascertained from the medical record/evidence, the benefit of uncertanity must go to the accused.
715. In view of above discussion, I am of the considered view that school certificate can not relied upon in view of the medical report and her age is being considered as 18 years. In their words, the prosecutrix was not minor i.e. below 18 years of age at the time of alleged commission of offence by accused.
14. Now, the question arises for consideration is whether accused has taken or enticed the prosecutrix.
15. PW-10, who is the prosecutrix, has deposed that after leaving her study she started learning cutting and tailoring at the cutting centre at F- Block. On her way, he met accused Parveen Kumar who proposed her for friendship. She had initiated the proposal for marriage. On 05.03.2007, as per the planning, she left her house at about 12 noon and reached at Kali Mata Mandir Near Kaam Dehnu School. From there they went to Bus Statnd Kashmere Gate in private auto. From there they went by bus, to Pauri Garhwal. Accused took her to the house of his Bua namely Suman. They stayed there for few days. Accused told his Bua about her to be his wife. In cross-examination she deposes that she went with accused out of her own free will.
16. In view of above statement of prosecution. I am of the considered view that it can not be said that accused has taken away or enticed away the prosecutrix out of the keeping of lawful guardian of her parents and without their consent because she was mature enough and had the capouts to know the full import of what she was 8 doing as she voluntarily joined the company of the accused. Hence, no offence U/s. 363 IPC is committed by accused. Accordingly, accused is acquitted on the offence U/s. 363 IPC.
17. Now, I come to Section 366 IPC. To prove the commission of offence U/s. 366 IPC the following ingredients must be fulfilled. (1) There should be kidnapping or abduction of any woman (2) such kidnapping or abduction should be with intent that victim may be compelled to marry any person against her will or the kidnapping or abduction of any woman should be with such intention or knowledge that she may be forced or seduced to illicit intercourse.
18. In the present case, PW-10 prosecutrix has deposed that she herself had initiated the proposal of marriage to the accused and went with him out of her free will. In view of this statement, it can not be said that accused kidnapped the prosecutrix with such intention that she may be compelled to marry him against her will or that may be forced or seduced to illicit intercourse. As already discussed that no offence of kidnapped has been committed by the accused. Accordingly, accused is also acquitted of the offence U/s. 366 IPC as necessary ingredients of offence U/s. 366 IPC are missing in the present case.
19. Now, I come to Section 365 IPC which is re-produced as below:-
"Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be 9 punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
20. In the present case, prosecutrix has remained with accused at Pauri Garhwal at his bua's house. Thereafter, they stayed at the rented accommodation, at Pauri Garhwal and after staying there they came back to Delhi at Mangol Puri. After coming to Delhi she did not report the matter to her parents. It shows that she was willing to live with accused. In these circumstances, it cannot be stated that accused had kidnapped or abducted her with intend to cause her to be secretly and wrongfully confined. All the necessary ingredients of the offence U/s. 365 IPC are also missing in the present case. Accordingly, accused is also acquitted of the offence U/s. 365 IPC.
21. Lastly, I come to offence U/s. 376 IPC. The term 'rape' has been defined in Section 375 IPC which is re - produced as below for ready reference:-
A man is said to commit "rape" who, excepts in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following description:-
Firstly- Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows that he is 10 not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly - With or without her consent, when she is under sixteen years of age.
22. PW-10 the prosecutrix deposes that accused did not perform any marriage with her. However, he put sindur in her forehead. He told her that God was witness to their marriage and hence, they became husband and wife.
23. PW-10 further deposes that at Pauri Garhwal in the house of Bua of accused and in the rented accommodation at Pauri Garhwal, they maintained physical relations during their stay.
24. I am of the considered view that merely by putting sindur in the parting of a girl does not give a title to a man to be husband of a girl. For a marriage, the 'Saptapaddi ceremony' has to be performed under the Hindu Marriage Act, which is not performed in the present case. It means that they were not legally wedded husband and wife.
25. Clause fourthly to Section 375 IPC provides that a man is said to commit rape when he has sexual intercourse with a woman 11 with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
26. In the present case, PW-10, prosecutrix, deposes that accused did not perform any marriage with her, therefore, it cannot be stated that she believed herself to be lawfully married to accused. Accordingly, clause fourthly to Section 375 IPC is not applicable in the present case.
27. Hence, it can not be stated that accused has committed rape upon the prosecutirx repeatedly between 06.03.2007 to 31.03.2007. Thus, accused is also acquitted of the offence U/s. 376 IPC.
28. Accused is in JC. He be released forthwith if not required in any other case. File be consigned to Record Room.
Announced in the open court (BIMLA KUMARI)
Dated: 14.05.2008 ASJ/Special Judge(NDPS)
Rohini Courts: Delhi
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