Delhi District Court
Cakkula Sampath vs State Of Andhra Pradesh, Wherein It Has ... on 6 August, 2014
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 165/1
Unique Identification No. 02404R0345892013
State
Versus
Manoj Thapa
S/o Sh. Prem Bahadur Thapa
R/o WP14, Village Wazirpur,
Ashok Vihar, Delhi.
FIR No. 270/2013
PS Ashok Vihar
U/s. 363/366 IPC
Date of institution of the case: 08/11/2013
Arguments heard on: 06/11/2014
Date of Decision: 06/11/2014
JUDGMENT
Brief facts of the case are that on 12/09/2013, complainant Chattarpal got recorded his statement to SI Rajender regarding missing of his daughter Priyanka. Accordingly, rukka was prepared and case was got registered u/s. 363 of IPC. Investigation was carried by SI Rajender. Accordingly, WT message was circulated. Prosecutrix was searched. On 16/09/2013, at about 12 night, SI Rajender handed over prosecutrix Priyanka to W/SI Rajesh Sharma. Thereafter, investigation was handed over to W/SI Rajesh Sharma.
During investigation, prosecutrix got recorded her statement u/s. 161 Cr.P.C., wherein she disclosed about performing marriage with one Manoj. She was got medically examined from BJRM hospital. Statement of prosecutrix was also got recorded u/s. 164 of Cr.P.C. through Ld. MM. Thereafter, Section 366 of IPC was added.
SC No. 165/1 1
Accused Manoj was arrested in this case. His personal search was conducted. He made disclosure statement. He also pointed out the place, where he resided with prosecutrix for three days and made physical relations with her without her consent. Pointing out memo was prepared in this regard. Rough site plan of the place of occurrence was prepared. Accused was got medically examined. Thereafter, he was produced before the Court and was sent to J.C. Statements of witnesses were recorded. Date of birth certificate of prosecutrix was obtained. Prosecutrix was sent to Nirmal Chaya.
On completion of investigation, chargesheet was filed against the accused before the Court on 08/11/2013. Case was committed to the Court of sessions on 03/12/2013 and was received on 10/12/2013. On 13/01/2014, charge u/s 363 of IPC and u/s. 366 of IPC was framed against the accused, to which, he pleaded not guilty and claimed trial.
In order to prove its case, prosecution has examined PW1 to PW8 in all. After completion of the prosecution evidence, statement of accused has been recorded u/s. 313 Cr.P.C.
I have heard Ld APP for State and Ld Amicus Curiae for the accused and have gone through the material produced on record and evidence adduced.
Prosecutrix has been examined as PW2. She has deposed that about one year back, she was studying in seventh class. She had studied upto 5th class in Nigam Prathiba Vidhaylaya, Ashok Vihar, Delhi. Her date of birth is 26/08/1998 and in the ration card, her date of birth is mentioned as 27/08/1997.
PW2 prosecutrix has further deposed that she was detained by her parents for three days and was beaten by her father as she had told to her parents that she wanted to marry with accused. Hence, for this reason, on 11/09/13, she left her house on the pretext of bringing samosa. From there, she took one auto and reached at Bharat Nagar near Kali Mandir. She called accused Manoj there on telephone. Thereafter, she alongwith accused Manoj had gone to the house of friend of accused SC No. 165/1 2 Manoj at Tri Nagar and stayed there for three nights separately in two rooms. Thereafter, for one day, they stayed at Burari at the house of friend of accused Manoj.
PW2 prosecutrix has further deposed that on 16/09/13, while they were going to police station, on the way, parents of accused called them at Azadpur, where police was present, so accused Manoj ran away from Azadpur. At that time, her parents were also with police. Thereafter, she reached at PS Ashok Vihar with the police and her parents. In the PS, police made inquiries from her and recorded her statement. At that time, she told to the police that she was having friendship with accused Manoj and her parents were also knowing about the same. Her father wanted to marry her somewhere else but she told her parents that she wanted to marry with accused Manoj and due to this reason, she was being tortured at her house.
PW2 Prosecutrix has further deposed that on the same day, she was also produced by the police before the Magistrate and at that time, Magistrate had also made inquiries from her and recorded her statement, wherein she told that she wanted to marry with accused Manoj. She also told to the Magistrate that she had called accused Manoj and they both went to the house of friend of accused Manoj and that her parents were falsely implicating accused, rather accused had asked her as to why she had left her house.
PW2 prosecutrix has denied that she told to Magistrate that " Manoj ne meri maang bhar di thi aur mangal sutra pehanaya tha". She further told that she had told the Magistrate that accused Manoj had not done any wrong act with her and that her parents had falsely implicated accused Manoj. She also signed her statement recorded by the ld. MM. Prosecutrix has identified her signatures at three places on statement Ex. PW2/A recorded by the Ld. MM.
Since PW2 prosecutrix has not supported the case of the prosecution, so, she has been cross examined by ld. APP, but even then, she has not supported the SC No. 165/1 3 case of the prosecution and has been confronted with her statement Ex. PW2/B. She has denied that when they reached at the house of friend of accused Manoj, accused Manoj cut his finger with glass and put the drop of his blood on her forehead. She has further denied that she was having physical relations with accused Manoj for the last three years prior to 11/09/13. She has further denied that her parents were also knowing this fact. She has voluntarily stated that accused Manoj was her friend only.
PW2 prosecutrix has also been confronted with her statement Ex. PW2/A recorded by the Ld. Magistrate u/s. 164 of Cr.P.C., wherein she has denied that she told to the ld. Magistrate that " Manoj ne meri maang bhar di thi aur mangal sutra bhi pehanaya tha".
PW2 prosecutrix has denied that accused had made physical relations with her for three years prior to 11/09/13 or that he had performed marriage with her by filling her maang and putting mangal sutra in her neck.
PW2 prosecutrix has been recalled for cross examination u/s. 311 Cr.P.C. on application moved on behalf of the accused. She has also been reexamined by ld. APP PW4 Chattar Pal is father of prosecutrix. He has deposed that he has three sons and two daughters. His elder daughter had already married. His younger daughter Priyanka i.e. prosecutrix went missing on 11/09/13 at about 2 pm day. He suspected that his daughter was taken away by accused Manoj, R/o WP14, Wazirpur, Village Ashok Vihar, who was residing there on rent, after enticing his daughter.
PW4 has further deposed that he searched his daughter at his own on 11/09/13 and on 12/09/13, he gave complaint Ex.PW4/A. After about two days, he was asked to provide photograph of his daughter, which he handed over to IO. Same is Ex.PW4/B. After about 34 days, he joined the investigation of this case with the IO and reached at Azadpur Chowk near red light, where accused was not found SC No. 165/1 4 present but his daughter was handed over to him by one neighbour, who was related to accused Manoj. Thereafter, they came back to PS and his daughter was sent to Nari Niketan. After about 15 days, his daughter was released to them. He did not tell the IO any further facts. He does not remember whether his supplementary statement was recorded on 16/09/13.
PW4 has further deposed that on 16/09/2013 itself, accused was called in the PS, where he was arrested vide memo Ex. PW4/C. Accused also made disclosure statement vide Ex. PW4/D. Since PW4 has not supported the case of the prosecution, so , he has been cross examined by ld. APP, wherein he has denied that he told to the IO in his supplementary statement that after enticing his daughter, accused Manoj Thapa made physical relations with her daughter after performing marriage with her. He has further denied that with the help of police and parents of accused Manoj, they have been able to recover their daughter. In this regard, he has been confronted with his statement Ex. PW4/E. PW4 has further denied that he accompanied the police party and after making disclosure statement, accused led the police party to Tri Nagar, where he pointed out a room of his friend Deepak and told that there he stayed with Prosecutrix and had made physical relations with her against her consent. Pointing out memo Ex. PW4/F was prepared.
PW5 is Dayawati. She is mother of prosecutrix. She has stated that she has three sons and two daughters. Her elder daughter is already married. On 11/09/13, his daughter i.e. prosecutrix had gone from the house on the pretext of purchasing samosas at about 2 pm and thereafter she did not come back. On the next day, her husband went to lodge the report but it was not lodged. Thereafter, they contacted one NGO with whose efforts, FIR was lodged. After about three days of the FIR, mother of accused Manoj took them at Azadpur, where accused came with his mausi and some other relative. Accused also brought his daughter i.e. Prosecutrix there and SC No. 165/1 5 dropped her and fled away. Thereafter, they reach at PS, from where, her daughter was taken to BJRM hospital for her medical examination.
PW5 has further deposed that she signed the MLC of her daughter Ex.PW3/A in the hospital. Thereafter, she again came back to the PS and there her daughter told that she was not willing to join them, so she was sent to Nari Niketan. After about three days, she was released to them.
PW5 has further deposed that she also accompanied her daughter on 16/09/13, when she was called for recording her statement u/s 164 of Cr.Pc.
Since PW5 has also not supported the case of the prosecution, so, she has been cross examined by ld. APP, during which, she has admitted that her daughter was enticed by accused Manoj. However she has denied that accused performed marriage with her daughter and made physical relations with her. She has volutnarily stated that fact of performing marriage and of physical relation was told by her daughter at the PS. PW5 has been confronted with her statement Ex. PW5/A to the fact that earlier accused used to chase her daughter. She has voluntarily stated that she had caught red handed accused with her daughter twice. She had seen the accused for the first time in the PS. PW6 SI Rajender Singh has deposed that on 12/09/13, he was posted at PS Ashok Vihar and was on emergency duty from 8 am to 8 pm. At about 5.25 pm, one Chhatarpal i.e. PW4 came to PS and met him. He recorded his statement Ex PW4/A, on which, he made endorsement Ex.PW6/A and handed over the same to Duty officer to register the case u/s 363 of IPC.
PW6 has further deposed that thereafter, he alongwith complainant Chhatarpal reached at his house and made inquiries from the neighbours as complainant had suspected one Manoj. So, they reached at the house of accused Manoj at WP14, Wazirpur Village, Ashok Vihar, but his room was found locked. After searching the accused in the nearby area, complainant Chhatarpal was relieved. SC No. 165/1 6 He himself came back to PS. He obtained the copy of FIR and rukka and got issued WT message and facts were told to the SHO. He also searched the accused and missing girl on 131415.09.2013 and on 16/09/13, investigation was handed over to W/SI Rajesh Sharma.
PW1 HC Shakamber has deposed that on 12/09/13, he was posted as HC at PS Ashok Vihar and on that day, he was working as Duty officer from 4 pm to 12 am night. On that day, at about 5.25 pm, he received rukka from PW6 SI Rajender Singh for registration of the Case, on the basis of which, he got registered the FIR of this case on computer. After registration of the case, he handed over the copy of FIR and original rukka to PW6 SI Rajender for further investigation. Copy of FIR is Ex. PW2/A. He also made endorsement on rukka vide Ex. PW1/B and also made kayami DD no. 31A in this respect. He has proved the certificate u/s 65B of Evidence act as Ex.PW1/C. PW1 has further deposed that at the time of recording of the FIR, he had dictated the contents of the same to the computer operator and by mistake , he had forgotten to dictate the name of prosecutrix Priyanka, whereas in the complaint it was appearing. Later on, in this respect, his statement was also recorded by IO W/SI Rajesh on 17/10/13.
PW7 is lady Inspector Rajesh Sharma. She is the second IO of the case. She has deposed that on 16/09/13, she was posted at PS Ashok Vihar as SI and on that day, investigation of this case was handed over to her. At about 1215 am night, she was told by the SHO that one girl was recovered so she should reach at the PS immediately. In the PS, PW6 SI Rajender produced prosecutrix and her parents before her. She called one NGO and provided counselling to the prosecutrix. She also made inquiry from the prosecutrix. Thereafter, she recorded the statement of prosecutrix u/s 161 of Cr.P.C and prosecutrix was sent for her medical examination at BJRM hospital with W/Ct Geeta. Mother of the prosecutrix also accompanied her. After the medical examination of the prosecutrix, she and her mother were dropped at SC No. 165/1 7 their house by W/Ct Geeta.
PW7 has further deposed that after about one and half or two hours, W/Ct Geeta came back to the PS and handed over to her the MLC of prosecutrix. According to same, she did not get conduct her internal examination. Father of the prosecutrix had provided phone number of the father of accused. She made a call on the phone of father of accused, who came to PS with accused Manoj.
PW7 has further deposed that she arrested accused Manoj vide memo Ex.PW4/C and his personal search was conducted vide memo Ex.PW7/A in presence of PW8 Constable Rakesh Kumar. Accused also made disclosure statement vide Ex.PW4/D. Thereafter, he was sent for his medical examination with PW8 Ct Rakesh. He came back after about 1 - 1½ hours with accused and handed over to her the MLC of accused.
PW7 has fruther deposed that thereafter, accused led them to the room of one Deepak in Tri nagar and pointed out the same, where he stayed with the prosecutrix for about three nights and had made physical relations with her against her consent and had also performed marriage with her. Pointing out memo Ex.PW4/F was prepared in this regard. She also prepared the rough site plan of the same, which is Ex.PW7/B. Thereafter, accused was produced before the Court concerned and was remanded to JC.
PW7 has further deposed that on 16/09/13, she also made request for recording the statement of prosecutrix u/s 164 of Cr.PC and identified the prosecutrix and her mother before the Ld MM on Ex.PW7/C. She also obtained the copy of the statement of the prosecutrix vide application Ex.PW7/D. As the prosecutrix was not willing to join her parents, so she was sent to the Nari Niketan. On the basis of the statements, she added section 366/376 and 3 and 4 of POCSO Act. Accused was also got examined medically before producing him before the Court concerned. On 19/09/13, she also got collected date of birth of prosecutrix through one Ct from the school of prosecutrix and also of accused. On completion of investigation, she SC No. 165/1 8 prepared the chargesheet and filed the same in the court.
PW8 Constable Rakesh Kumar has deposed the same facts as of PW7 lady Inspector Rajesh Sharma.
PW3 Dr. Mallika Rani has appeared to depose on behalf of Dr. Susheel Pal, who was working as SR (Gynae) in BJRM hospital and has left the services of the hospital and her present whereabouts are not known. PW3 has proved the MLC of prosecutrix as Ex. PW3/A, who was examined by Dr. Susheel Pal and has identified her handwriting on the same in red encircled portion at point X bearing her signatures at point A. According to the notes of Dr. Susheel Pal, the prosecutrix did not agree for her internal examination and she also told that she had no physical relations with anyone.
Prosecutrix has deposed before the Court her date of birth as 26/08/1998 and has stated that her date of birth is 27/08/97 in the ration card but copy of Ration card has not been produced before the Court. The parents of deceased of the prosecutrix i.e. PW4 Chattarpal and PW5 Dayawati have not been able to depose about the date of birth of prosecutrix. However, in the birth certificate of Nigam Pratibha Vidhyalya, Ashok Vihar, the date of birth of prosecutrix is 26/08/1998.
According to complaint Ex.PW4/A made by the father of the prosecutrix , prosecutrix went missing on 11/09/2013, so she was aged about 15 years and one month only at the time when she went missing.
SC No. 165/1 9
Accused has been charged for the offences u/s 363/366 of IPC. Prosecutrix, who have been examined as PW2 has not supported the case of prosecution in respect of both the allegations. Earlier she has supported the case in her statement recorded u/s 161 of Cr.PC but in the statement made u/s 164 of Cr.PC, she did not disclose to Ld MM that she was enticed or was taken away by the accused, in any manner. There is no other witness to this effect that she was taken away or enticed by accused.
PW4 Chattar Pal, father of prosecutrix suspected that her daughter was taken away by accused Manoj. According to PW5 Smt Dayawati, mother of prosecutrix, prosecutrix had left the house on the pretext of purchasing samosas at about 2 pm on 11/09/2013 and thereafter she did not came back.
To prove offence u/s 363 of IPC, prosecution has to prove that the accused had taken away or enticed any minor under 18 years of age, if female, out of keeping of lawful guardian of such minor, without the consent of such guardian. So one of the essential ingredient of taking away or enticing the prosecutrix is not proved, in any manner. PW2 has stated that she left her house on the pretext of purchasing samosas as she was detained for three days by her parents and she was beaten up by her father because she stated to her parents that she wanted to marry with the accused. She further told that she took one auto and reached at Bharat Nagar near Kali Mandir and she called accused Manoj there on telephone and thereafter they both had reached at the house of friend of Manoj at Tri Nagar.
Ld defence counsel has contended that in such circumstances, neither offence u/s 363 of IPC nor offence u/sm 366 of IPC is made out. In support of same, Ld defence counsel has relied upon on 2002 (2) Crimes 437 titled as Talla @ Cakkula Sampath Vs State of Andhra Pradesh, wherein it has been held that "
even if the prosecutrix is less then 18 years of age, her evidence suggested that she had attained the age of discretion as on the date of offence and had left her parents SC No. 165/1 10 house at her own accord and moved with accused at different places, then accused cannot be convicted u/s 363 of IPC."
Ld defence counsel has further relied upon on 1995 CRI. L.J. 3974 titled as Shyam and another Vs State of Maharashtra, wherein it is held that "if prosecutrix had not put up any struggle or raising alaram while being taken away by accused and if prosecutrix is appearing to be willing party to go with accused by her own, then accused cannot be convicted for offence u/s 366 of IPC."
Ld defence counsel has further relied upon on 1994 CRI. L.J. 2471 titled as Hira Lal Vs State of Haryana, wherein it has been held that "if the prosecutrix moved with the accused for a fortnight without complaining to anyone that proves her to be consenting party, hence offence as alleged u/s 363 is not made out."
Accused has also been charged for offence u/s 366 of IPC. According to PW2, she had gone with accused on 11/09/13, at her own and in the statement given before Ld MM, she had stated that she wanted to marry with accused but has denied that accused performed marriage with her after that, so she has been confronted on this fact by Ld APP but she has not supported the case of prosecution, in any manner.
The essential ingredient of offence 366 of IPC is kidnapping or abducting or inducing women to compel her for marriage etc. No such fact has been deposed by PW2 that she was compelled to marry with accused rather she had stated that she did not perform marriage with accused in any manner and on the reexamination by Ld APP, she has stated that she told the fact regarding performing of marriage to Ld MM at the instance of IO as she was assured that by making such statement, accused will be released from the custody.
PW4 Chattar Pal, father of the prosecutrix has also denied in the cross examination conducted by Ld APP that he had stated to the IO that after enticing his daughter, accused Manoj made physical relations and performed marriage with her.
SC No. 165/1 11
PW5 Smt Dayawati has also denied that accused performed marriage with her daughter and made physical relations with her. She has further stated that this fact was told to her by her daughter in the PS but PW2 has not supported this fact in any manner, so PW5 Dayawati, mother of prosecutrix cannot be relied upon in respect of this fact being hearsay.
Ld defence counsel has contended that not only this but the witnesses have also contradicted on some of the other aspects. It is further contended that PW2 has stated before the Court that on 16/09/13, while she was going to the PS, parents of the accused had called them at Azadpur, where police was present and Manoj had fled away from there. Her parents were also present at that time. Thereafter she reached at the PS Ashok Vihar with the police and her parents, whereas according to PW4 Chattar Pal, father of prosecutrix, after about 34 days, he joined the investigation with IO and reached at Azadpur Chowk near red light, where accused was not present but his daughter was handed over to him by one relative of the accused, so they came back to the PS and his daughter was sent to Nari Niketan.
Ld defence counsel has contended that at the time of hearing of bail application of accused, PW4 had given an affidavit to the extent that his daughter i.e. prosecutrix had left the house at her own and accused was not responsible for the same and this fact is reflecting in bail order of the Court but this fact has been denied by the witness before the Court but judicial note of the same can be taken by the Court. The bail order is dated 18/11/2013 of Ld ASJ.
PW5 Smt Dayawati, mother of prosecutrix has also stated that after about three days of the FIR, mother of accused Manoj had taken them at Azadpur, where accused came there with his mausi and some other relative. Accused also brought her daughter Priyanka and dropped her and fled away from there and thereafter they reached at the PS. It is contended by Ld defence counsel that according to the case of prosecution, prosecutrix was recovered by SI Rajender Singh, who has been SC No. 165/1 12 examined as PW6 before the Court. He has not whispered about the recovery of prosecutrix from the possession of accused Manoj from Azadpur.
PW7 Inspector Rajesh Sharma has stated that in the midnight on that day, she was called in the PS and prosecutrix was produced before her with her parents, so it is not clear as to in what manner, the prosecutrix was recovered whether she has been recovered from the possession of of accused or she was handed over by the accused to the parents of prosecutrix or while prosecutrix and accused were going to PS, prosecutrix was taken away by the police and her parents to PS and accused fled away from there.
According to the deposition of PW7 Inspector Rajesh Sharma, accused was called at the PS through his father and was arrested there. So, in view of the above contradictions, it has not been proved in any manner beyond reasonable doubts that prosecutrix was recovered from the possession of accused Manoj Thapa, in any circumstances.
In view of the above, the contentions of Ld defence counsel are forceful. Witnesses have contradicted each other, hence they cannot be relied upon in any manner. Prosecution has not been able to prove the offences u/s 363 and 366 of IPC, beyond reasonable doubts, against the accused for which he is acquitted.
Announced in open court (Virender Kumar Goyal)
th
today on 6 of August 2014 Additional Sessions Judge
Fast Track Court, Rohini Courts,Delhi.
SC No. 165/1 13
363/366 of IPC
SC No. 165/1 14