Delhi District Court
Sc No: 124/15 State vs . Mahender Singh on 6 January, 2016
SC No: 124/15 State Vs. Mahender Singh
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 124/15
FIR No. 924/14
Police Station S.P. Badli
Under Section 363/366/376 IPC &
6 POCSO Act
ID No. 02404R0-288302015
State
Versus
Mahender Singh
S/o Sh. Lal Bahadur
R/o Village Asva Purva Kachar, Post Ajabpur,
PS Badhpura, Distt. Itava, UP.
......Accused
Date of institution 05/08/2015
Judgment reserved on 06/01/2016
Judgment Pronounced on 06/01/2016
Decision Acquitted
Judgment 1 of 12
SC No: 124/15 State Vs. Mahender Singh
JUDGMENT
1. Briefly stated the case of the prosecution is that on 23.08.2014, complainant K, brother of prosecutrix 'N, aged about 17 years, lodged a missing report after prosecutrix went missing from her house on 19.08.2014. A DD entry no. 26A was entered in this regard. Complainant alleged that his sister has been enticed by the accused and prayed that she be traced out. On the basis of the complaint, the present FIR was registered.
2. During the course of investigation, IO made efforts to search for the prosecutrix through publicity and publication in electronic and printed media but there was no clue of the prosecutrix. On 18.04.2015, prosecutrix and accused were apprehended at Samaipur, Delhi. Statement of prosecutrix was got recorded U/s 164 Cr.P.C wherein she claimed that as on 19.08.2014 she was studying in College. She was in love with accused had gone with the accused of her own free will and got married to him. Later on accused started treating her badly and used to beat Judgment 2 of 12 SC No: 124/15 State Vs. Mahender Singh her. Prosecutrix was medically examined but she refused for her internal examination. Accused was arrested. After completing investigations, charge sheet was filed.
3. Charge for the offences under Section 363/366A IPC & Section 6 POCSO Act in alternative u/s 376 IPC was framed against accused. Accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
4. Prosecution has examined 2 witnesses.
5. PW1 is the prosecutrix. She testified that her age is 22 years. She gradually got befriended with accused and fell in love with him. On 19.08.2014, when she went to her college from there she eloped with accused Mahender Singh without any pressure or enticement from accused. She stayed with accused near Badli and got married to him. Her parents were not happy with her relations with accused as such they lodged a complaint against him. She was Judgment 3 of 12 SC No: 124/15 State Vs. Mahender Singh taken to Hospital for medical examination but she refused for the same. She proved her statement Ex. PW1/A recorded by the IO in presence of a NGO and statement Ex. PW1/B recorded U/s 164 Cr. P.C. She denied the suggestions that accused had beaten her or threatened her
6. PW2 is the brother of the prosecutrix. He lodged the missing report of her sister.
7. In the present case, the prosecution cited 13 witnesses in order to prove its case against the accused. After framing of the charge the accused gave a statement wherein he admitted the DD No. 26A dated 23.08.2014 as Ex. PX-1, FIR in question as Ex. PX-2, MLC of prosecutrix as Ex. PX-3, his MLCs as Ex. PX-4 & 5, his arrest & personal search memos as Ex. PX-6 & 7 & Class 10th certificate of prosecutrix as Ex. PX-8.
Judgment 4 of 12
SC No: 124/15 State Vs. Mahender Singh
8. In view of the statement of accused, concerned
Duty Officer, Doctor and police witnesses were not summoned for examination. Remaining witnesses were examined as PW1 & 2 and their testimonies have been discussed as above.
9. Since prosecutrix did not support the prosecution case, recording of further PE was closed. Statement of accused was dispensed with as no incriminating evidence came on record against the accused from the statements of material witnesses and of the prosecutrix.
10. Arguments have been addressed by learned Additional PP as well as learned defence counsel.
11. I have heard the arguments and also perused the case file carefully.
Judgment 5 of 12
SC No: 124/15 State Vs. Mahender Singh
12. Age of the prosecutrix: In the present case, accused is alleged to have kidnapped prosecutrix, a minor aged about 17 years and took her along with him with intent that she may be compelled to marry him and/or be forced/seduced for illicit intercourse with him. In order to prove that the prosecutrix was a "Child" less than 18 years of age, as on the date she went missing from her house, prosecution collected her Xth Standard Certificate, Ex PX-8, wherein, the date of birth of the prosecutrix is 10.04.1997. Certificate stands admitted by the accused as Ex PX-8. However, no government record in respect of the date of birth of the prosecutrix has been produced.
13. The Juvenile Justice (Care and Protection of Children) Act, 2000 has laid down the guidelines to arrive at a finding about the age of a juvenile. These are contained in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, Judgment 6 of 12 SC No: 124/15 State Vs. Mahender Singh 2007. The procedure to be followed in the determination of the age is contained therein. Hon'ble Supreme Court in Mahadeo Vs. State of Maharashtra & Anr, (2013) 11 SCC 637 has held that this procedure will also apply for determination of age of a rape victim.
14. Rule 12 (3) clearly states that the age inquiry would conducted by the Court by obtaining matriculation or equivalent certificate in the absence of which the date of birth certificate from the school first attended or the next option being the birth certificate issued by the municipal authorities be obtained. Document relied upon by the prosecution to establish that the prosecutrix was born on 10.04.1997 does not fit into any of the afore-noted category. In such an anomaly, Rule 12 states that a Medical Board will be constituted to determine the age of a victim. This would only be a relevant fact and needless to state, would not be a conclusive evidence about the age of the victim.
Judgment 7 of 12
SC No: 124/15 State Vs. Mahender Singh
15. Stand of the prosecution that the prosecutrix was a minor is not established by the documents relied upon by the prosecution. In terms of Rule 12 if the first three parameters contained in Rule 12 (3) are not made available, the next step would be to subject the prosecutrix to an ossification test. However, ossification test was not got conducted on the prosecutrix.
16. Prosecutrix in her testimony claims her age to be 22 years. No record of any Government authority has been relied upon by the prosecution to prove genuine date of birth of the prosecutrix. Therefore, there is no conclusive evidence on record to establish that prosecutrix was a minor, on the day when she went missing.
17. Testimony of prosecutrix: Prosecutrix categorically deposed that she got befriended with the accused and fell in love with him. She went away with him voluntarily and of her own will. There is no evidence on record that she was enticed by the accused, Judgment 8 of 12 SC No: 124/15 State Vs. Mahender Singh in any manner, to go with him. Thus, the factum of forcible marriage or taking away of the prosecutrix for the purpose of said marriage is concerned, there is not even an iota of evidence on record.
18. It has been held in para 8 of the judgment titled as Bunty Vs. State (G.N.C.T.) of Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011 by the Hon'ble Delhi High Court that :
"8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had traveled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...."
Judgment 9 of 12
SC No: 124/15 State Vs. Mahender Singh
19. In this regard, it would relevant to refer to the case titled as " S. Varadarajan Vs. State of Madras (reported as AIR 1965 SC 942)", where in while distinguishing between "taking" and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India that:
" There is a distinction between " taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S.
361. Where the minor leaves her father's protection knowing 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."
20. In the present case also, the element of 'taking away' or 'enticement' is found to be lacking. In view of the material on record, it appears that prosecutrix was willing and consenting party and it seems that everything has happened with her will. In these circumstances, the factum of kidnapping of prosecutrix does not stand proved.
Judgment 10 of 12
SC No: 124/15 State Vs. Mahender Singh
21. Nutshell of foregoing discussion is that from the testimony of the prosecutrix as well as other material witnesses examined by it, the prosecution has miserably failed to prove that accused had kidnapped prosecutrix, with intention to compel her to marry him and to force/seduce her to have illicit intercourse with him.
22. Medical Evidence: Prosecutrix has not deposed that the accused established physical relationship with her. As per her MLC Ex. PX-3, she refused for her internal medical examination. There is no medical evidence on record to prove the factum of physical relationship between the accused and the prosecutrix. Prosecutrix categorically deposed that she has married to the accused. Accused being legally wedded husband of the prosecutrix cannot be held guilty of establishing physical relations with his wife which as per the deposition of the prosecutrix are consensual.
Judgment 11 of 12
SC No: 124/15 State Vs. Mahender Singh
23. Conclusion: In the light of aforesaid discussions, it
is held that there is no evidence on record to establish that accused kidnapped or enticed the prosecutrix in illicit relationship nor there is any evidence that accused committed offence of rape or sexual assault on her. Accordingly, accused Mahender Singh stands acquitted of the charged offence. He is directed to furnish a personal bond in sum of Rs 10,000/- under provisions of Section 437-A Cr.P.C with surety in the like amount.
File be consigned to record room.
Announced in open Court on Day of 6th January 2016.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
Judgment 12 of 12