Delhi District Court
State vs Subhash Pal S/O Shri Raja Ram on 11 August, 2011
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 112/10
State Vs Subhash Pal S/o Shri Raja Ram
R/o Village Mai Khurd,
P.S. Islam Nagar,
District Badauin (U.P.)
FIR No: 237/06
P.S. Sangam Vihar
U/s. 363/366 IPC
DATE OF INSTITUTION : 18.10.2010 (Initial date
of Institution 26.06.2007)
JUDGMENT RESERVED ON : 11.08.2011
DATE OF DECISION : 11.08.2011
JUDGMENT:
1. A missing report was lodged by Sh S.K. Samal father of the prosecutrix Sucharu at around 1.15 am at night of 13/14.03.2006 that his daughter Sucharu prosecutrix was missing from house since 6.00 pm in the evening. She went out of house by stating his younger son that she is going to the chacha's shop for taking some articles but had State Vs. Subhash Pal, SC No.112/10 (Contd. Pg No. - 1) not returned back. She further had taken alongwith her clothes and Rs. 4000/. He further alleged in his complaint that he do not have any suspicion on anybody. Lateron on 20.03.2006 he reported to the police that he has suspicion over one Subhash who is residing as tenant in the neighbourhood might have taken his daughter pursuant to which an FIR U/s 363 IPC was registered.
2. Lateron during investigation on 05.05.2006 accused Subhash Pal was arrested at Badauin and prosecutrix Sucharu was recovered from his custody. Thereafter, her statement u/s 164 Cr.P.C was recorded by the Metropolitan Magistrate. In that statement she alleged that she is around 18 years and 2 months and for about one year and 6 months she had relation with accused Subhash Pal and both are in love with each other. She further stated that she voluntarily accompanied Subhash Pal on 13.03.2006 for the purpose of marriage and thereafter, she voluntarily married accused Subhash without any fear and pressure at a temple and the date of marriage might be 20/22nd March, 2006. Thereafter both of them started living together. She further stated that Subhash Pal had done nothing against her consent and married Subhash Pal and wants to live with him.
3. Subsequently, police had recorded another statement of prosecution u/s 161 Cr.P.C in which she alleged that her life is ruined by accused Subhash and she deposed before Magistrate under pressure from him and now he do not want to keep her and further demanding Rs. 50,000/ and her father's house for marriage. After completion of State Vs. Subhash Pal, SC No.112/10 (Contd. Pg No. - 2) inquiry and taking legal opinion, chargesheet was filed.
4. On committal, charges were framed u/s 366 IPC against accused to which he pleaded not guilty and claimed trial.
5. For substantiating charge, prosecution has examined 11 prosecution witnesses. The material witnesses prosecutrix Sucharu and her father S.K. Samal are examined as PW3 & PW4 and other witnesses are formal witnesses. Brief summary of their deposition is as follows. Deposition of father of prosecutrix S.K. Samal as PW3 and PW4 prosecutrix Sucharu
6. PW4 prosecutrix Sucharu deposed that she knew the accused and on 13.03.2006 accused and one Gajender alongwith his brother in law Dinesh (Saala) asked her to bring school certificate and Rs. 4000/ and come to Bandh and thereafter she had taken Rs. 4000/, clothes and certificate alongwith her and went to Bandh at around 5.306.00 pm in the evening. Thereafter, they asked her to accompany them to their village Badauin and when she denied they threatened her to implicate her father and family in false criminal case and on this threatening she accompanied the accused and went to Badauin by bus. Accused took her to his sister's house and asked her to have physical relations with him to which she denied. Thereafter, he told her that he will marry and physical relations will be developed lateron. But he forcibly had physical relations with her. She further deposed that whenever police used to come to his house, he used to shift from one house to other house and for about one and half month she had physical relations State Vs. Subhash Pal, SC No.112/10 (Contd. Pg No. - 3) with him everyday. She further deposed that accused had moved an application for marriage before Marriage Bureau at Badauin but when she was sitting with accused before court her father came with police and took her to Delhi on 05.05.2006. She further deposed that when she was taken to AIIMS hospital for medical examination, she refused to undergo medical examination. This witness deposed that she refused the medical examination because IO told her that if she wants to live with accused then there is no need of medical examination. She further deposed that she had given the statement before the magistrate u/s 164 Cr.P.C Ex.P1 at the instance of IO R.S. Meena. She further deposed that when the accused got released on bail he demanded Rs. 50,000/ and share in her house for marrying pursuant to which she made a complaint to SHO PS Ambedkar Nagar. In cross examination, she deposed that her date of birth is 23.02.1988 and no marriage between her and accused took place and it is correct that Delhi police caught them when they were present at Badauin court. She further deposed that she deposed before the Magistrate under pressure of the IO.
7. PW3 S.K. Samal father of prosecutrix deposed that on 13.03.2006 at about 10 pm when he came back to his house his wife reported that their daughter Sucharu is missing from market since about 6 pm and raised suspicion on accused Subhash Pal. He further deposed that he contacted Gajender his neighbour who knew about his tenant Subhash Pal. Gajender called Subhash Pal and stated to him to come there but State Vs. Subhash Pal, SC No.112/10 (Contd. Pg No. - 4) he told him that he will come back after some time. Thereafter, he reported the matter to police at 100 number. He further deposed that he made a complaint against Subhash Pal and Gajender who kidnapped his daughter but ASI Shiv Ram told him that only missing report of his daughter can be written and the FIR was registered on 20.03.06 after complaining with senior police officials. He further deposed that on 14.03.06 he alongwith police officials visited Subhash Pal at Badauin but he was not traced at his house and on 05.05.06 he received information about accused Subhash Pal that he would appear in ADM court at Badauin with intention to marry his daughter thereafter he alongwith police officials reached the said court and apprehended accused with his daughter. In cross examination he deposed that accused and his daughter were recovered in his presence by the police. He was standing outside the court when her statement was recorded by Magistrate but he was not aware what statement was given by her. He further deposed that he had also made complaints regarding the threatening given by brother of the accused.
8. PW2 Tejvir Singh Executive Member of Tinu Public School stated that as per school record date of birth of Sucharu Lata is 23.02.1988. PW9 Dr. Arvind Kumar deposed that accused Subhash Pal was produced for medical examination on 06.05.2006 and opined that there is nothing to suggest that accused is incapable of performing sexual intercourse in normal circumstances. PW11 Sh Satish Kumar, Ld. Metropolitan Magistrate deposed that he recorded the statement of State Vs. Subhash Pal, SC No.112/10 (Contd. Pg No. - 5) prosecutrix on 10.05.2006 on being satisfied that the prosecutrix was making her statement voluntarily he recorded her statement u/s 164 Cr.P.C vide Ex. P1.
Deposition of Police Officials
9. PW1 ASI Dharamvir being duty officer recorded the FIR Ex. PW1/A u/s 366 IPC on 20.03.2006. PW5 WASI Nirmala took the prosecutrix for medical examination to AIIMS hospital on 06.05.2006 where she refused to get herself medically examined and thereafter she was sent to Nari Niketan. Her statement u/s 164 Cr.P.C was recorded on 10.05.2006. PW6 HC Shiv Charan recorded missing report of prosecutrix vide DD no. 37A at 1.15 am. PW7 HC Jaipal deposed that they went to Badauin ADM court on 05.05.2006 and on inquiry they found that no application for court marriage was pending in that court and when the accused persons came out of the court, they arrested them and thereafter brought to Delhi. In cross examination he deposed that it is correct that he alongwith father of the prosecutrix S.K. Samal went to office of SDM and on inquiry came to know that Subhash Pal had submitted an application for marriage on 29.04.2006 but on that date applicant did not appear for marriage and matter was listed on 05.05.2006 and he recorded the statement of Sucharu Lata outside the premises of court of ADM, she did not tell that she willingly came with accused. He further deposed that he did not know about letter submitted by prosecutrix on 29.02.2006. He further deposed that public persons had not joined investigation at the time of State Vs. Subhash Pal, SC No.112/10 (Contd. Pg No. - 6) arrest of accused Subhash. He further denied suggestion that both have willingly married and photographs of the marriage were shown to him.
10. PW8 SI Ram Sahai deposed that on 20.03.2006 he was handed over the investigation of present FIR and on inquiry from witnesses they suspected accused Subhash Pal might have taken the prosecutrix. In cross examination he stated that he made inquiries from the witnesses at Sangam Vihar but had not recorded their statement and further recorded the supplementary statement of complainant. PW10 SI Umesh Malik deposed that the present file was received by him for investigation on 07.05.2006 and recorded the supplementary statement of Sucharu Lata on 08.05.2006. In cross examination he deposed that he recorded her statement at her house. He further denied suggestion that he recorded the statement of prosecutrix at the instance of the father of the prosecutrix.
11. Accused Subhash Pal denied all the incriminating circumstances put to him in his statement u/s 313 Cr.P.C and stated that he had married the prosecutrix at Arya Samaj Mandir at Badauin with her will and consent and is falsely implicated in present case. Accused further examined DW 1 Munna Lal as defence witness.
12. DW1 Munna Lal deposed that on 13/14.03.2006 accused Subhash married Sucharu at Badauin and he attended the marriage and in his presence certain photographs of marriage were taken and marriage was solemnized with due consent of Sucharu. He further deposed that at the time of marriage the age of the prosecutrix is more than 18 years State Vs. Subhash Pal, SC No.112/10 (Contd. Pg No. - 7) of age. In cross examination, he deposed that no relative of Sucharu was present in the marriage and there were 20 persons in marriage and all were relatives and friends of Subhash Pal and further denied the suggestion that marriage of proseuctrix was solemnized forcibly and denied the suggestion that the certificates showing age of the prosecutrix and photographs of marriage are fake.
13. Ld. Counsel for the accused submitted that prosecutrix admittedly more than 18 years of age at the time of alleged commission of offence. She voluntarily accompanied accused to his native place Badauin and married with him in a temple. She in her statement u/s 164 Cr.P.C before the Ld. Metropolitan Magistrate stated that she is in love for last 1 & ½ year with accused Subhash Pal and herself had left the house on 13.03.2006 for the purpose of marriage and had married Subhash without any pressure and fear, voluntarily in a temple on 20 or 22 March and living like husband and wife. Ld. counsel for the accused stated that her deposition before the court cannot be relied upon where she retracted from her statement u/s 164 Cr.P.C. Ld. Counsel further submitted that in defence evidence DW has also submitted the photographs of the marriage which corroborates the statement of prosecutrix U/s 164 Cr.P.C and police deliberately concealed the marriage part in the chargesheet. He further submits that admittedly the accused and prosecutrix were apprehended by police from the office of ADM, Badauin where they went for registration of marriage. Ld. counsel for the accused submitted as such State Vs. Subhash Pal, SC No.112/10 (Contd. Pg No. - 8) no offence u/s 366 made out against accused and requested for his acquittal.
14. Ld. Addl. PP on the other hand submits that the statement u/s 164 Cr.P.C is not a substantive piece of evidence. Prosecutrix in her deposition before court had stated that she was taken from Delhi to Badauin forcibly and under pressure. Thereafter she was taken to different places and subjected to forcible physical relations by the accused. Further the prosecutrix had explained that her deposition u/s 164 was because of the pressure by the IO. Father of the prosecutrix PW3 S.K. Samal also deposed before the court that his daughter was kidnapped by accused Subhash Pal and with the help of Gajender Singh and police instead of writing FIR lodged missing report. Ld. Addl. P.P. submits that statement of both these witnesses clearly depose the case of forcible kidnapping by the accused for the purpose of marriage and clearly a case u/s 366 IPC is made out.
15. Arguments heard. Record perused.
16. Present case is initiated on the basis of missing report lodged by PW3 S.K. Samal father of the prosecutrix on the night of 13/14.03.2006 at around 1.15am that his daughter prosecution Sucharu (PW4) went out of the house in the evening at around 6 pm by stating her younger brother that she is going to Chachas shop to buy some articles alongwith her clothes and Rs. 4000/ and had not raised any suspicion on anybody. Later on he raised suspicion over the accused residing in neighbourhood as tenant pursuant to which FIR registered on State Vs. Subhash Pal, SC No.112/10 (Contd. Pg No. - 9) 20.03.06.
17. Both prosecutrix and the accused were apprehended outside the ADM court on 05.05.06 and thereafter, the prosecutrix was sent for medical examination but she refused medical examination and her statement u/s. 164 Cr.P.C. was recorded before the Magistrate on 10.05.06. In her statement u/s. 164 Cr.P.C. she deposed that she voluntarily married her on 20/22.03.06 at a temple in Badauin.
18. Prosecutrix Sucharu is examined as PW4 before court and in her deposition she retracted from her statement u/s 164 Cr.P.C and deposed that on 13.03.2006 accused one Gajender and Dinesh asked her to bring school certificate and Rs. 4000/ cash. Thereafter,she alongwith her certificate, cash and clothes met accused Subhash who had asked her to accompany her to Badauin and because of his threatening she went to Badauin who took her to his sister's house where he promised to marry and thereafter forcibly had physical relations with her. Further whenever, police used to come to his house she was shifted from one house to another for one and half months and moved marriage application before marriage bureau at Badauin and when they were sitting outside marriage bureau, her father came with police and took them to Delhi on 05.05.06.
19. Prosecutrix in her deposition stated that accused had called with school certificate, clothes and some rupees and she went to Subhash alongwith certificates, clothes and Rs. 4000/. and further deposed that she was forcibly taken by accused to Badauin whereas in her statement State Vs. Subhash Pal, SC No.112/10 (Contd. Pg No. - 10) u/s 164 Cr.P.C Ex.PW11/A, she deposed that she was in love with accused Subhash and voluntarily accompanied him on 13.03.2006.
20. As per deposition, prosecutrix submits that she was called to come with certificates, clothes and rupees 4000/ and she goes with all these things at Bandh to meet accused Subhash. This in itself shows that the prosecutrix was in love with accused and voluntarily accompanied accused Subhash otherwise there is no need of taking clothes and certificates just to meet accused Subhash if she does not want to accompany him to Badauin for purpose of marriage. Therefore, her deposition to this effect in the court in contradiction to statement u/s. 164 Cr.P.C. that she was forcibly taken to Badauin is suspect.
21. Prosecutrix in her statement u/s 164 Cr.P.C deposed that she married accused in the temple on 20/22.03.2006 at Badauin. Accused in his statement u/s. 313 Cr.P.C. has also taken the stand that he married prosecutrix at temple in Badauin and in this regard a defence witness DW1 was also examined who exhibited the photographs of the marriage at the temple. And stated that he himself was also present in the marriage. Prosecutrix in her deposition also stated that on 05.05.06 police had apprehended her and accused from the office of ADM where she had gone for registration of marriage. PW7 HC Jaipal in his cross examination stated that it is correct that alongwith father of the prosecutrix they went to office of ADM and on inquiry came to know that an application for marriage was submitted on 29.04.2006 as the applicants could not appear, the matter was listed for 05.05.06. This State Vs. Subhash Pal, SC No.112/10 (Contd. Pg No. - 11) circumstance of registration of marriage itself corroborates the fact that accused might have married the prosecutrix in temple and thereafter went to register the marriage in the concerned court of SDM/ADM. Therefore, a clear doubt is created on the testimony of prosecutrix who stated that she was subjected to sexual intercourse without marriage forcibly whereas circumstance suggest that the sexual relations between both developed after their marriage at the temple.
22. Prosecutrix in her deposition testified that she due to pressure of investigating officer had given statement u/s 164 Cr.P.C because after being released on bail accused contacted his father and asked to marry her and her father had also moved to office of SDM for purpose of marriage however he asked Rs.50,000/ and share in house therefore, she again made fresh complaint to SHO. This statement in itself shows that the prosecutrix was always interested to marry the accused and appears to had changed her stance lateron due to some bitter relations developed after arrest of the accused. PW3 S.K. Samal father of the prosecutrix has not stated in his deposition that he has moved an application in the SDM office for the purpose of marriage thus appears to have concealed this material fact.
23. PW3 S.K. Samal father of the prosecutrix in his testimony stated that police had not deliberately lodged the kidnapping case but only the missing report. But if this circumstance looked in context that the prosecutrix was in love with accused and voluntarily accompanied him State Vs. Subhash Pal, SC No.112/10 (Contd. Pg No. - 12) to his native place with school certificates shows that the prosecutrix is ready to marry accused against the wishes of her parents and admittedly from the prosecution case she is more than 18 years of age at the time of incident, therefore, the consent of parents is immaterial. The entire story as narrated by PW3 and prosecutrix PW4 before the court is an improvement appears to have been developed on account of bitter relations with the accused after his arrest.
24. PW7 HC Jaipal deposed that it is correct that accused had moved an application for marriage before SDM on 29.04.06. But police conveniently had not taken into possession that application of marriage to conceal the voluntariness of the prosecutrix and further appears deliberately not investigated on her marriage part solemnized in mandir despite her statement u/s. 164 Cr.P.C. Therefore the circumstance that prosecutrix had already married to accused in temple is also not ruled out.
25. In view of above facts and circumstances, prosecution unable to prove the offence u/s 366 IPC against the accused Subhash Pal beyond any reasonable doubt.
26. In view thereof, accused is acquitted of charges u/s. 366 IPC. Accused is further directed to furnish personal bond in sum of Rs. 20,000/ and one surety in the like amount in terms of section 437A Cr.P.C.
Announced in Open Court
On 11th August, 2011 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI
State Vs. Subhash Pal, SC No.112/10 (Contd. Pg No. - 13)