Delhi District Court
State vs . Mohd. Salim Son Of Mohd. Wahid R/O ... on 23 March, 2010
1
IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVII/NECUM
ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI :
Sessions No.60/09
Date of institution of case:- 17.02.2009
Date on which case was reserved for order:- 18.03.2010
Date of passing of order:- 23.03.2010
State Vs. Mohd. Salim son of Mohd. Wahid R/o E52/20, Aradhak Nagar,
Apsara Border, Delhi.
FIR No. 356/08
PS Seemapuri
u/S 363/366/376 IPC
JUDGMENT:
1. Prosecution case emanates from the facts that on 1.11.2008 complainant Rani came to the Police Station and made a complaint that on 17.10.2008 her daughter Prerna (name changed), had gone to the market at about 5.30 p.m. and had not returned back. She searched for her but could not trace her. She suspected Salim, residing in the house of Pushpa as a tenant, to be responsible for kidnapping of her daughter. On the basis of this complaint a case under section 363 IPC was registered. During the course of investigation, DD No.73B dated 1.11.2008 regarding missing was also placed on record and wireless message was sent. On Sessions Case No.60/09 Page 1 of 25 2 22.11.2008, Smt. Rani produced a document regarding date of birth of prosecutrix, according to which her date of birth was 17.8.92. On 30.11.2008 complainant informed that her daughter has informed her on telephone that she has been taken to Bombay. thereupon SI Dharam Singh alongwith Constable Sarvesh and complainant Rani went to Bombay and reached PS Bakola, Thane Mumbai where they came to know that Prerna is in Bal Sudhar Grih, Dongri, Mumbai. Prosecutrix was taken from Bal Sudhar Grih and thereafter on the identification of prosecutrix, accused Salim was arrested. After taking three days' transit remand, he was brought to Delhi court. Prosecutrix and accused were got medically examined in GTB Hospital. Section 366 & 376 IPC were added. Statement of the prosecutrix under section 164 Cr.PC was recorded. Exhibits were sent to FSL. After completion of investigation, challan was submitted against the accused.
2. After the case was committed to the court of Sessions, arguments on charge were heard. Since prima facie case for the offence under section 363/366/376 and 506 IPC was made out against the accused, charges for the aforesaid offences were framed against him to which charges, he pleaded not guilty and claimed trial.
3. Prosecution has examined 12 witnesses in support of its case, namely, ASI Dharamvir (PW1), Amarjeet (PW1), Constable Pooja (PW2), Dr.S.Kohli (PW3), Smt. Rani (PW4), Dr.Shailli Nigam (PW5), Shri Sonu Agnihotri Ld.M.M.(PW 6), Prerna (PW7), Constable Sarvesh Kumar (PW8), SI Sessions Case No.60/09 Page 2 of 25 3 Dharam Singh (PW9), HC Arun Kumar (PW10) and Ms.Shashi Bala, Sr.Scientif Assistnt, FSL, Rohini (PW11).
4. All incriminating material was put to the accused while recording his statement under section 313 Cr.PC wherein he admitted that prosecutrix was known to him as he used to reside in her locality. According to him, prosecutrix was in love with him and she asked him to marry her. She had gone with him on her own will. He admitted that he had taken the prosecutrix to Santa Cruz Bombay in a train and kept her in a hut in Santa Cruz and further stated that before that he had taken her to Ghaziabad. He denied that prosecutrix was confined in the house and was not allowed to make any call to her parents rather stated that he himself had given mobile to her and told her that if she is not happy with him then she can go to her house. He also denied putting any lock in her house and stated that one day, prosecutrix had fallen sick and therefore, he had asked one lady to look after her as she was suffering from fever. He admitted that prosecutrix was sent to Bal Sudhar Grih but according to him, prior to that, he was apprehended by the police officials. According to him, prosecutrix had given her age as 18 years, when he went alongwith her to Ghaziabad Court when documents regarding their marriage were prepared. He admitted that from Mumbai, they were brought to Delhi and thereafter they were sent to hospital where they were medically examined. According to him, present case has been registered against him falsely at the instance Sessions Case No.60/09 Page 3 of 25 4 of mother of the prosecutrix. He did not prefer to lead any evidence in his defence.
PW 1 ASI Dharamvir was working as duty officer on 1.11.2008. On that day, at about 10.15 p.m. he recorded FIR of this case on the basis of tehrir presented by SI Dharam Singh, copy of which is Ex.PW1/A. PW1 (wrongly again numbered as PW1), Amarjeet, Computer IT, Govt. Girls Senior Secondary School, C Block, Dilshad Garden, Delhi has deposed that as per school record, on 5.7.04, prosecutrix was admitted in his school in 6th standard and an entry in this regard was made in admission and withdrawal register at serial No.5962, copy of which is Ex.PW1/B. He has also stated that as per school record date of birth of prosecutrix is 17.8.1992 and that she was admitted in his school on the basis of school leaving certificate issued by Nagar Nigam Prathmik Adarsh Vidyalaya, photo copies of admission form and school leaving certificate are Ex.PW1/C and PW1/D. PW 2 Constable Pooja is a witness with regard to taking the prosecutrix to GTB Hospital for her medical examination on 5.12.2008. After her medical examination, doctor had given her three parcels duly sealed with the seal of GTB Hospital and one sample seal which she handed over to the Investigating Officer, who seized the same vide seizure memo Ex.PW2/A. She also handed over MLC of the prosecutrix to him.
PW3 Dr.S.Kohli had examined the accused on 6.12.2008 and prepared his MLC Ex.PW3/A. On examination of local genitalia, they were Sessions Case No.60/09 Page 4 of 25 5 found to be normal and that there was nothing to suggest that he was incapable to perform sexual intercourse.
PW4 Smt. Rani is mother of the prosecutrix. She has deposed that her daughter is 16 years and 4 months of age. On 17.10.2008 at about 5.00 5.30 p.m. she had gone to a temple to perform pooja on account of Karwachauth festival and her daughter was present in the house. At about 6.00 or 6.15 p.m. when she came back her daughter was found missing and she came to know that one person namely Salim who used to reside as a tenant in her neighbourhood, had taken her from her house. Despite making search in the nearby vicinity, she could not be traced. She also enquired from the parents of accused Salim but they stated that they had no concern with him. Accused was not present at the house at that time. She lodged a missing report and her statement Ex.PW4/A was recorded. She stated that prosecutrix was th th studying in 6 class and left her studies in class 6 itself. She had produced school leaving certificate of her daughter before the police officials and same was taken vide memo Ex.PW4/B. She has also unfolded that after about a month, she received a telephone call from her daughter who informed her that she was making a call from STD booth from Santa Cruz, Bombay. She was frightened at that time. She pacified her daughter. She contacted the investigating officer of the case who in turn contacted the PCO booth owner and directed him to take care of the prosecutrix. PCO owner called the local police of Bombay and handed over the girl to the police. Later on, prosecutrix was sent to Bal Sudhar Grih. After fourfive days, she alongwith the police Sessions Case No.60/09 Page 5 of 25 6 reached Bombay where local police was contacted and thereafter she alongwith the police went to Bal Sudhar Grih. Later on, prosecutrix got arrested accused Saleem from the jhuggi, vide memos Ex.PW4/C and PW4/D. Thereafter prosecutrix and accused were brought to Delhi and were got medically examined. Prosecutrix was produced before the court and was released on superdari.
PW5 Dr.Shaili Nigam examined the prosecutrix on 6.12.2008 and on local examination, found that her hymen was ruptured. No evidence of bruise and injury mark over vulva and thigh was found. Urine pregnancy test was positive. She advised vaginal smear examination, pubic hair, nail clippings examination, Xray for bony age estimation, ultra sound for fetal stability and confirmation of pregnancy. She prepared her MLC Ex.PW5/A. PW6 Shri Sonu Agnihotri, ld. M.M. has deposed that on 6.12.2008, an application moved by SI Dharam Singh for recording statement of proecutrix was marked to him by Sh.Lalit Kumar, ld. M.M. Thereafter, he recorded statement of the prosecutrix under section 164 Cr.PC, whichis Ex.PW6/A. PW7 is prosecutrix herself, who is star witness of the prosecutrix. PW8 is Constable Sarvesh Kumar who has deposed that on 30.11.2008 he alongwith SI Dharam Singh and complainant Rani went to Mumbai by train and reached there on 2.12.2008. There with the help of local police, the prosecutrix was taken in custody from Bal Sudhar Grih Bombay. Thereafter, they alongwith the prosecutrix came to Santa Cruz where she pointed out one hut in Santa Cruz, where accused was present. On seeing Sessions Case No.60/09 Page 6 of 25 7 the police he started running but was overpowered and was arrested and his personal search was taken vide memos Ex.PW4/C and PW4/D. The transit remand of the accused was taken and accused and the prosecutrix were brought to Delhi. They both were medically examined. After their medical examination, two parcels duly sealed and two sample seals were given to him which he handed over to the Investigating Officer who seized the same vide memo Ex.PW8/A. He also stated that on 22.11.2008 mother of the prosecutrix produced date of birth certificate of the prosecutrix which was taken into possession vide memo Ex.PW4/B. PW9 SI Dharam Singh is Investigating Officer of the case. He has deposed that on 1.11.2008, Smt. Rani, mother of the prosecutrix came to the police station and got recorded her statement Ex.PW4/A. He made his endorsement Ex.PW9/A on her statement and produced it before the duty officer and got the case registered. Despite making search for the prosecutrix and the accused at many places, they could not be traced. On 22.11.2008 school leaving certificate of the prosecutrix was produced by her mother which was seized by him vide memo Ex.PW4/B. He has further deposed that on 30.11.2008 on the information of complainant Smt. Rani, regarding her having received a telephone call from the prosecutrix from Bombay, he alongwith Ct. Sarvesh accompanied her to Bombay, took the custody of prosecutrix from Bal Sudhar Grih, arrested the accused at the instance of prosecutrix from Santa Cruz, brought the accused and prosecutrix to Delhi. They were got medically examined at GTB Hospital and sealed parcel given Sessions Case No.60/09 Page 7 of 25 8 by the doctor, were seized by him. On 6.12.2008 prosecutrix was given in the custody of her parents. On 27.1.2009 he got sent exhibits to FSL Rohini. Statement of the prosecutrix was got recorded under section 164 Cr.PC.
PW10 HC Arun Kumar has proved the entries made in store room register with regard to deposit of case property in the malkhana on 6.12.2008. He has also deposed that on 27.1.2009 sealed parcels were sent to FSL Rohini through SI Dharam Singh vide RC No.4/21/09.
PW11 Ms.Shashi Bala, Senior Scientific Assistant, FSL Rohini has proved reports Ex.PW11/A and PW11/B with regard to examination of the exhibits.
5. I have heard ld. Addl. PP Shri Subhash Chauhan, for the State and Shri A.K.Singhal Advocate for accused and have perused the record.
6. It was submitted by ld. counsel for the accused that prosecutrix was having love affair with the accused. On 22.8.08 they got married at Ghaziabad where documents of their marriage were prepared. After getting married, she went to her parents' house and thereafter on 17.10.2008 they left Delhi. Firstly, they went to Faizabad where she remained with accused for about 22 days. During this period, she used to cook food, wash clothes of accused and did not inform anybody that she has been kidnapped or forcibly brought by the accused. Thereafter they went to Mumbai where they stayed in a jhuggi. Accused used to go for work and during his absence, prosecutrix used to cook food and wash clothes and the jhuggi was surrounded by many other jhuggies but at no point of time, she made Sessions Case No.60/09 Page 8 of 25 9 any complaint to anyone. That being so, prosecutrix was always in the game and it cannot be said that she was allured enticed or was taken away by the accused.
7. Regarding her age, it was submitted that prosecution has not proved any cogent evidence. They have examined one Amarjit, who brought the th record pertaining to admission of the prosecutrix in class 6 . However, he admitted that at the time of admission, birth certificate was not filed by her. Ld. Counsel also referred to the testimony of her mother who could not give any concrete proof regarding the age of the prosecutrix and in fact, she had gone on stating that when prosecutrix was admitted in Ist standard in Bal Bharti School, Dilshad Garden, she did not recollect what date of birth was written in her admission form. She herself did not filled her admission form. According to him, father of the prosecutrix was not examined to prove her date of birth. Moreover, doctor had advised for ossification test but no such test was got conducted. As such it was submitted that the prosecution has failed to prove that prosecutrix was less than 18 years of age. He referred to nikahnama wherein age of the prosecutrix was mentioned as 19 years. He also referred to her statement recorded under section 164 Cr.PC wherein she admitted that when she got married with the accused at Ghaziabad at that time, she had given her age as 18 years. However, the advocate mentioned her age as 19 years. In this statement, she did not level any allegations of commission of rape upon her. Under the circumstances, it was submitted that prosecution has not Sessions Case No.60/09 Page 9 of 25 10 been able to establish its case and accused is entitled to be acquitted. For raising these submissions, reliance was placed on 1994 JCC 413 Mahabir Vs State; 2003 (1) JCC 273 Jinish Lal Sah Vs State of Bihar ; 2009 (3) JCC 2002 Masauddin Ahmed vs. State of Assam ; 2009 (4) C.C.Cases (SC) 282 Tameezuddin @ Tammu Vs State of (NCT of )Delhi ; 2002 (2) JCC 918 Brijesh Kumar Vs. State; 38 (1989) Delhi Law Time 15 Brij Mohan Vs State; 2007 (1) JCC 45 Anurag Das @ Parimal Vaid Vs. State of NCT of Delhi ; IV (1994) CCR 2530 Jarnail Singh & Ors Vs. State of U.P. & Ors and 1997 JCC 409 Sushil Kumar Vs. NCT (Delhi).
8. On the other hand, ld. Addl. PP for the State submitted that testimony of prosecutrix herself is sufficient to convict the accused. Moreover, when her statement was recorded under section 164 Cr.PC at that time also, she had leveled allegations against the accused and before the court also, she testified that she was induced and taken by the accused. As per date of birth as mentioned in the school record, she was minor. Moreover, when she was kept by the accused in jhuggi of Santa Cruz, she herself made a telephone call from STD booth to her mother and thereafter her mother alongwith police officials reached Bombay and rescued her. Under the circumstances, it was submitted that prosecution has been able to bring home guilt of the accused beyond reasonable doubt and accused is liable to be convicted.
9. I have given my considerable thought to the respective submissions made on behalf of the parties.
Sessions Case No.60/09 Page 10 of 25 11
10. Prosecution machinery was set in motion on receipt of a complaint from Smt. Rani regarding missing of her daughter since 17.10.21008 and she suspected Salim tobe the person responsible for kidnapping of her daughter. During the course of investigation, a telephonic call was received by Smt. Rani from her daughter that she was in Bombay and as such complainant alongwith police officials went to Bombay and got recovered the prosecutrix. They were brought to Delhi and thereafter investigation was carried out.
11. The most material witness is the prosecutrix herself who has testified that accused Salim is known to her as he used to reside in her locality. Whenever she used to go outside her house to purchase house hold items, he used to meet him on the way and ask her to marry him to which she declined and used to tell him that she would marry as per wishes of her parents and warned him not to tease her. Salim told her that her parents were very poor and he would provide her good clothes and jewellery and would keep her with him. However, she did not disclose these facts to her family members due to fear and shame. On 17.8.08 at about 4.00 or 4.30 p.m. accused had taken her from her house on some pretext and asked her to roam in the area and threatened that in case she did not accompany him, he would not allow her to marry any other person. Thereafter he took her to Santa Cruz. There were 57 huts. She was kept in one hut by Salim and he did not allow her to talk to her family members on telephone. Whenever, he used to go out, he used to confine her inside the hut and Sessions Case No.60/09 Page 11 of 25 12 used to put lock on the hut. Due to this reason, she could not inform her parents. Accused committed sexual intercourse many a times against her will and consent. One day, when she was suffering from fever at that time, accused Salim had gone for his work. On that day, accused had not put lock on the hut and he asked one lady to look after her as such she came out of the hut and made a telephone call from a nearby booth to her mother and asked her to take her from there. Her mother enquired about the location from STD owner and thereafter STD owner informed the police who took her to Bal Sudhar Grih, where she remained for 45 days. Her mother came alongwith the police officials and took her from Bal Sudhar Grih. Thereafter, at her instance, accused was apprehended by the police officials and they were brought to Delhi where her statement under section 164 Cr.PC was recorded by ld. M.M. which is Ex.PW6/A. She was taken to GTB Hospital where she was medically examined.
12. In this back drop, question for consideration comes as to whether these facts answer ingredients of kidnapping as defined in section 361 IPC. This section reads as under : "Whoever takes or entices any minor under 16 years of age, if a male, or under 18 years of age, if female, or any person of unsound mind, out of the keeping of the lawful guardianship of such minor or person of unsound mind, without the consent of such guardian, is said to have kidnap such minor or person from lawful guardianship."
Sessions Case No.60/09 Page 12 of 25 13
13. In order to attract section 361 IPC, it is incumbent upon the prosecution to prove following ingredients : (1) There must be taking or inducement of a minor or a person of unsound mind.
(2) Minor must be under 16 years of age, if a male or under 18 years of age, if a female.
(3 Taking or inducement must be out of keeping of lawful guardianship of minor or person of unsound mind, and (4) Taking or inducement must be without consent of guardian of minor or person of unsound mind.
14. As regards the submissions of ld. Addl. PP for the State that a conviction can be based on the solitary testimony of the prosecutrix, there is no quarrel with this proposition of law but that is in a case where evidence of prosecutrix inspires confidence and appears to be natural and truthful.
15. It is to be seen whether in the instant case, prosecutrix was taken or enticed away by the accused. Although as stated above, in her examination in chief, she has deposed that she was enticed by the accused to marry him and was allured on the ground that he would provide her good clothes and jewellery. However, a perusal of her cross examination, gives a different picture in as much as in cross examination, she has admitted that she had gone alongwith the accused at Ghaziabad. and admitted that nikahnama Ex.PW7/DA bears her signature at point A. Sessions Case No.60/09 Page 13 of 25 14 She also admitted her photograph Ex.PW7/DA which depicts her picture as well as picture of Salim. She also admitted that affidavit Ex.PW7/DB bears her signatures at point A. In pursuance to further examination, it has come on record that she had gone alongwith the accused in an auto and one friend of the accused was also in that auto. They reached Ghaziabad court at 1.00 or 1.30 p.m. and remained there for about ½ hour. Two three persons were sitting there who enquired the accused their names and address and they further enquired if she wanted to accused and she replied in the affirmative. Thereafter, they came back to Delhi from Ghaziabad court in another auto and she reached her house at about 3.00 or 3.30 p.m. She remained at her house till 17.10.08. During the period from 22.8.2008 to 17.10.08, she did not inform any of her family members regarding the marriage. She also admitted that she had gone alongwith the accused to Faizabad U.P. They had gone by bus. She remained at Faizabad for about 2022 days. The house where they lived at Faizabad, belonged to one of the friend of accused and in that house, husband and wife, four daughters and one boy were residing. Even those persons enquired from her from where she had come. She used to wash clothes of Salim. One lady who used to be called as 'Didi' got her purchased one saree. She was wearing suit and accused had taken one saree and complete set. The persons at Faizabad used to talk to her. From Faizabad, she went alongwith the accused to Bombay in a train. On the way, she did not have any talk with any of the passengers. At the platform also, there Sessions Case No.60/09 Page 14 of 25 15 was a crowd. From the platform at Bombay, they had gone to jhuggi of Santa Cruz. There were 67 jhuggies. Accused used to work as labour and used to leave jhuggi at 10.00 a.m. and used to come back at about 11.00 p.m. After reaching Bombay, accused had taken her in a rented house where one lady and two children used to reside. They remained there for 8 9 days. She informed the lady about her name and that she had come from Delhi. There were many flats near the jhuggi. She further admitted that she alongwith the accused used to sleep in the same living room where other persons used to sleep. There was no toilet in the jhuggi. She used to go to toilet which was situated at some distance from the jhuggi.
16. From the aforesaid evidence led by the prosecution coupled with the statement of accused under section 313 Cr.P.C. following facts emerged:
(i) that the prosecutrix had gone alongwith the accused on 22.8.08 at Ghaziabad court, where they got married.
(ii) that on 17.10.2008 prosecutrix alongwith the accused had left her house and went to Faizabad where they stayed for 2022 days. From Faizabad they went to Bombay where they remained till she was removed to Bal Sudhar Grih.
17.In the face of this overwhelming evidence coming on record, plea of the prosecutrix that she was enticed or taken by the accused does not appeal to reason. If she had been enticed or taken by the accused, there was more than ample opportunity for her to inform her parents or persons available over there or to the competent authority but that was never done. Sessions Case No.60/09 Page 15 of 25 16 As per her own statement, she had gone alongwith the accused to Ghaziabad on 22.8.08 where she got married with him. After marrying him, she returned back and lived there upto 17.10.08. If the accused had forcibly married her, she could have complained to her parents against him but that was not done. Even thereafter when she went alongwith the accused on 17.10.08, as per her own statement, she was taken to Faizabad where she lived for 2022 days in the house of friend of the accused where his entire family was available. There is nothing to show that she made any complaint to anyone of them that she was forcibly brought by the accused rather her own statement reflects that she was living very comfortably as she got purchased one saree by one 'Didi' and she used to wash clothes of Salim and used to live in normal manner. Thereafter when she went to Bombay alongwith accused, they boarded a train from Faizabad at 1.30 p.m. and reached Bombay next day at 2.30 a.m. She did not make any complaint either to any passenger or anybody available at the platform or at the place where she lived for 89 days and thereafter at the jhuggi. It seems that thereafter, probably things did not go well, therefore, she informed her mother and her mother alongwith police officials came and brought her and accused back to Delhi but so far as her going with the accused is concerned, it seems that prosecutrix was a consenting party.
18. Ld. counsel for the accused has placed reliance on 2009 (3) JCC 2002 Masauddin Ahmed vs. State of Assam. That was also a case where the Sessions Case No.60/09 Page 16 of 25 17 prosecutrix did not furnish any explanation as to why she did nor raise an alarm or she could not inform anybody in the hotel as such it was held by Hon'ble Supreme Court that it was a clear case of consent. Reliance was also placed on 2007 (1) JCC 45 Anurag Das @ Parimal Vaid Vs. State of NCT of Delhi. In that case, prosecutrix and petitioner went to Bhopal, got married in a temple. Before the doctor, prosecutrix claimed to have married. Under those circumstances, the petitioner was granted bail. Ld. counsel has also placed reliance on some more authorities in which prosecutrix appeared to be a consenting party, the petitioner was granted bail.
19. Matter came up for consideration before hon'ble Supreme Court in S. Vardarajan (supra), while dealing with the case of a minor girl, who was on the verge of attending majority and who herself telephoned the accused to meet her and finding him waiting with his car, got into that car of her own, it was 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. This judgement was relied upon in Bhagwan Singh & Ors. V. State of Anr., 2006 (3) JCC 2050 and following portion from the judgement of S. Varadarajan (supra ) was quoted :
"But when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) went from the house of the relative of father where she is kept, Sessions Case No.60/09 Page 17 of 25 18 herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the SubRegistrar's office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have 'taken' her out of the keeping of her lawful guardianship, that is, the father."
"The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him."
20. These authorities were relied upon subsequently in Ruksana Vs. Govt. of NCT of Delhi, 2007 (3) RCR (Criminal) 542.
21. Hon'ble High Court had relied upon Vivek Kumar @ Sanju and another v. The State and another in Crl. M.C. No. 307374/2006 decided on 23.02.07, wherein it was observed as under : Sessions Case No.60/09 Page 18 of 25 19 "There is no law which prohibits a girl under 18 years from falling in love with someone else. Neither falling in love with somebody is an offence under IPC or any other penal law. Desiring to marry her love is also not an offence. A young girl, who is in love has two courses available to her
-- one is that she should marry with the consent of her parents after obtaining the consent of her parents. If her parents do not agree to persuade them or to wait for attaining the age of majority and then exercise her right as a major to marry the person of her own choice. However, this is possible only when the house of her parents where she is living has congenial atmosphere and she is allowed to live in peace in that house and wait for attaining age of majority. This might have been the reason in the mind of petitioner No.2 when she told her father that she was in love and wanted to marry Sanju, but the response of father when daughter confided in him, created the fear in the mind of petitioner No.2. Her father slapped her and told that her action would malign the religion and bring danger to the religion. He even threatened to kill her and marry her off to some rich person. When once a such a threat is given to a girl around 17 years of age, who is in love, under such circumstances she has a right to protect her person and feeling against such onslaught of her relatives even if the onslaught is from her own parents. Right to life and liberty as guaranteed by the Constitution is equally available to minors. A father has no right to forcibly marry off his daughter, who is below 18 years against her wishes. Neither he has a right to kill her, because she intends to marry out of her Sessions Case No.60/09 Page 19 of 25 20 religion. If a girl around 17 years of age runs away from her parents house to save herself from the onslaught of her father or relatives and joins her lover or runs away with him, it is no offence either on the part of the girl or on the part of the boy with whom she ran away and married."
22. Manish Singh (supra) was also a case, where FIR was registered under section 363 IPC, PS Sarojni Nagar. Direction was given to produce the prosecutrix. When she appeared in the Court, she stated that she had solemnized marriage with accused of her own accord in a temple of Delhi. They cohabit together, stayed at different places in Bihar and that she was neither forced or taken away. She had married with accused of her own choice. She claimed that she was 19 years old. However, her father claimed that she was 14 years old, as per school leaving certificate. In view of the statement of prosecutrix, hon'ble High Court observed that continuous criminal proceedings under section 363 IPC would be an exercise in futility. Besides, it would also be detrimental to matrimonial life of the couple and of the infant. Prosecutrix being around 17 yeas of age, on the verge of majority, having reached an age of discretion, had accompanied accused of her own volition, without any kind of enticing or inducement or force from anyone. There was, thus, no taking away or enticing away of minor out of keeping of lawful guardian. Essential ingredients of offence of kidnapping are missing. Relying upon S. Vardarajan (supra), FIR was quashed.
Sessions Case No.60/09 Page 20 of 25 21
23. The present case squarely falls within four corners of these authoritative pronouncements in as much as it has come on record that prosecutrix had gone alongwith the accused to Ghaziabad and got married with him, after marrying him, came back to her parents house and for complete two months, she did not make any complaint to them. Thereafter she again went alongwith the accused firstly to Faizabad and thereafter to Bombay and had sex with him. When she was recovered at that time, she was found to be pregnant. Under these circumstances, the plea of the prosecutrix that she was induced or enticed away by the accused to accompany him does not appeal to reason. As stated above, there can be no quarrel with the proposition that testimony of prosecutrix is to be believed but to hold that prosecutrix must be believed irrespective of the improbabilities in her story, is an argument that can never be accepted. The test always is as to whether given story prima facie inspires confidence. In view of the discussion made above, the case of the prosecution regarding inducement or allurement does not inspire any confidence.
24. As regards age of the prosecutrix, prosecution has examined PW2 Amarjit( wrongly numbered as PW1), from Government Girls Senior Secondary School, Dilshad Garden who brought admission and withdrawal register for class 6th, 7th and 8th of Govt. Girls Sr. Secondary School C Block, Dilshad Garden, Delhi. According to him, as per register, prosecutrix was got admitted in 6th class in the school on 5.7.04 and entry to this effect Sessions Case No.60/09 Page 21 of 25 22 was made in the register at Serial No.5962 which is Ex.PW1/B. As per school record, date of birth of prosecutrix is 17.8.92. He also brought admission file containing the application form of Prerna dated 5.7.04. She was admitted in this school on the basis of school leaving certificate issued by Nagar Nigam Prathmik Adarsh Vidyalaya, DI. He proved photo copy of the admission form and school leaving certificate Ex.PW1/C and PW1/D. In cross examination, he admitted that no birth certificate or affidavit was th given at the time of her admission in 6 standard. He went on stating that since the admission was sought on the basis of school leaving certificate issued by the Primary School, as such date of birth certificate/affidavit was not asked for. He admitted that no birth certificate or affidavit was submitted alongwith school leaving certificate and the admission form.
25. PW4 Smt. Rani, is mother of the prosecutrix. According to her, prosecutrix is 16 years and 4 months of age. In the cross examination, she deposed that birth of Prerna took place at house No.E404. She did not got her date of birth entered in MCD record and she was not aware of the same. She could not tell, date, month and year of birth of Prerna. According to her, her marriage had taken place on 9.5.1981. She has four children. She could not tell after how many years of her marriage, prosecutrix was born. According to her, she went at the time of her admission at Bal Bharti School, Dilshad Garden but she could not recall the year when she got her admitted in Ist standard. She admitted that no age proof was given at the time of her admission. She could not say as to what Sessions Case No.60/09 Page 22 of 25 23 date of birth was written in her admission form. She did not fill the admission form. She could not tell who had given date of birth of prosecutrix at the time of her admission. According to her, she had given her date of birth by approximation only.
26. The conjoint reading of the testimony of PW Amarjit and Smt. Rani goes to show that Smt. Rani is not aware about the exact date of birth of her daughter. According to her, entry in the school register was made on the basis of approximation only. Under these circumstances, date of birth as recorded in the school record as 17.8.92 cannot be said to be authentic proof regarding date of birth of the prosecutrix. There are catena of decisions to this effect that age given at the time of admission of girls and boys in schools are far from being precise. In AIR 1970 P & H 450, Raunki Saroop V. State, it was observed that it is a matter of common knowledge that the ages given at the time of admission of girls and boys in schools are far from being precise. More often than not, attempt is made by the parents and guardians of their wards, who get admission in the schools, to understate their ages and to give a later date of birth than the real one. Thus, the ages given the school certificates are not dependable for determination of the precise date of birth of a student, to whom the entry as to the date of birth in the school records pertains. Similar view was taken in 2004 (1) Criminal Court Cases 378, Makhan Vs. State of Madhya Pradesh; 1998 (2) RCR (Cr.) 318, Lakhi Ram Vs. State of Haryana; I (1997) CCR 538, Sheela Bai & Anr. Vs. State of M.P.; 2003 (2) RCR (Cr.) Sessions Case No.60/09 Page 23 of 25 24 311, Jaipal Singh Vs. State of Haryana; and 2004 (1) JCC 110, Rakesh Kumar Vs. State. In the instant case, entry pertaining to the age of prosecutrix has not been proved from any birth register, but from school register and the oral evidence in support of the date of birth coming in school certificate cannot be relied upon with implicit faith, keeping in view the fact that entry was made made in school record on the basis of approximation only. When the prosecutrix was produced before PW5 Dr. Shaili Nigam and was examined, the doctor had advised her Xray for bony age estimation. There is nothing on record to show that Investigating Officer got bony age of the prosecutrix ascertained. As per statement of prosecutrix herself, when she had gone alongwith the accused at Ghaziabad court, at that time, she had given her age as 18 years.
27. in view of the aforesaid discussion, prosecution has not been able to establish beyond reasonable doubt that prosecutrix was less than 18 years of age at the relevant time. Even otherwise, on an over all appreciation of the evidence of prosecutrix and her conduct, it is clear that her statement is not of such quality and there is no other evidence on record which may even lend some assurance short of corroboration that she is making a truthful statement. It is settled principle of criminal jurisprudence that an accused is presumed to be innocent till guilt is proved to the hilt. Onus is always on prosecution to prove its case beyond shadow of doubt. As held in 2009 VII AD (Delhi) 615 Sunder @ Lala & Ors Vs. State, it is settled law that however strong a suspicion may be, it cannot take the place of Sessions Case No.60/09 Page 24 of 25 25 proof and that prosecution has to cover the journey from may be, through could be, to shall be. In the instant case, prosecution has not been able to establish its case beyond reasonable doubt. As such, accused is entitled to benefit of doubt. Consequently, accused is acquitted of the charge. His bail bonds are discharged. File be consigned to Record Room.
Announced in the open Court (Sunita Gupta) on this 23rd day of March, 2010. Distt. JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
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