Delhi District Court
State vs Mr. Parvesh on 3 December, 2012
IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE -03, WEST,
TIS HAZARI COURTS,DELHI
Sessions Case Number : 22 of 2012.
Unique Case ID Number : 02401R0081442012.
State versus Mr. Parvesh
Son of Mr. Hardwari Lal,
Resident of L-2/C-19, Mohan Garden,
Uttam Nagar, New Delhi.
FIR Number 190 of 2011.
Police Station Uttam Nagar.
Under sections 366/363 of the Indian Penal Code.
Date of filing of the charge sheet before : 25.01.2012.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 23.02.2012.
Date of transfer of the file to this Court : 03.08.2012.
Arguments concluded on : 03.12.2012.
Date of judgment : 03.12.2012.
Appearances : Ms.Promila Singh, Additional Public Prosecutor for the
State is on leave.
Mr.Anil Kumar, Substitute Additional Public Prosecutor for
the State.
Accused Mr.Parvesh on bail with counsel Mr.Paramjit.
**********************************************************
Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar.
Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 1 of 21 ::-
JUDGMENT
1. Mr.Parvesh, the accused person, has been charge sheeted by Police Station Uttam Nagar for the offence under sections 363/366 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 23.04.2011 at about 7.30pm at L-2A/88, Mohan Garden, Uttam Nagar, Delhi within the jurisdiction of Police Station Uttam Nagar, he kidnapped the prosecutrix (name withheld to protect her identity) aged about 15 years from the lawful custody of her guardianship of her parents, without their consent and intent that she may be compelled to marry against her will or in order that she may forced or seduced for illicit intercourse.
CHARGE SHEET AND COMMITTAL
2. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 25.01.2012 and after its committal, the case was assigned to Session Court vide order dated 23.02.2012 of the learned Sessions Judge, Delhi. Further, the case has been assigned to this Court on 03.08.2012 vide order no.1608/38427-446, dated-30.07.2012 of the learned District and Sessions Judge.
CHARGE
3. Vide order dated 14.05.2012, charge for the offence under sections 363/366 of the IPC was framed against the accused Mr.Parvesh to which he pleaded not guilty and claimed trial.
Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar. Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 2 of 21 ::-
PROSECUTION EVIDENCE
4. In order to prove its case, the prosecution had examined as many as ten witnesses i.e. Mr. Kanwar Pal Singh, father of prosecutrix as PW1; HC Jaiparkash, duty officer as PW2; Prosecutrix as PW3; Ms. Shivali Sharma, learned Metropolitan Magistrate, Mahila Court, West as PW4; SI Yogesh Kumar as PW5; Ms.Maninder, Teacher MC primary school as PW6; Ms. Rajkumari, mother of prosecutrix as PW7; SI Yogesh Kumar as PW8; Dr. Deepshikha, Medical Officer also as PW 8 (wrongly numbered)and PW9 SI Vijender Singh.
STATEMENT OF THE ACCUSED AND HIS DEFENCE
5. In his statement under section 313 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) recorded on 20.10.2012, the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has been falsely implicated in this case. The prosecutrix went with him with her will. They married on 04.05.20111 in Arya Samaj Mandir according to Hindu rites and customs in the presence of two witnesses. The prosecutrix has not deposed againt him in her statement under section 164 of the Cr.P.C. He has preferred to not lead evidence in his defence.
ARGUMENTS
6. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar. Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 3 of 21 ::-
7. The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offence under section 363 and 366 of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
8. The counsel for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused. The prosecutrix had gone voluntarily with him and married him with her free consent. It is submitted that it is clear from the record that the accused person have been falsely implicated in this case.
CASE OF THE PROSECUTION, ALLEGATIONS AND DOCUMENTS
9. The prosecution story unfolds with the lodging of DD No. 30 A dated 24.04.2011 (Ex.PW2/A) on the basis of information furnished by Mr. Kanwar Pal Singh on which the FIR (Ex. PW2/B and Ex. PW6/B) was lodged. The investigation was marked to SI Yogesh. The certificate under section 65 B of the Indian Evidence Act (Ex. PW2/C) was issued. Father of the prosecutrix had informed that he suspected that Mr. Parvesh, the accused had abducted his daughter. The birth certificate of the prosecutrix (Ex. PW6/A) and the relevant extract of the school admission register (Ex. PW6/B) were obtained which show that the age of the prosecutrix is 04.07.1996. Information was given to Door Darshan, National Crime Record Bureau and CBI, wireless message and hue and cry notice were issued. Accused moved an application for surrender Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar. Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 4 of 21 ::-
before the court of the Ld. Area Magistrate on 11.05.2011. He was interrogated and formally arrested vide arrest memo (Ex.PW9/A) and his personal search was conducted vide personal search memo (Ex.PW9/B). He was remanded to judicial custody. The statement of the prosecutrix under section 164 of the Cr.P.C. was recorded (Ex. PW4/A to Ex. PW4/E) and a copy of the statement was given to the IO on application (Ex. PW4/F).
TESTIMONIES OF THE PROSECUTION WITNESSES
10. PW1 is the father of the prosecutrix and he has deposed that his daughter aged about 14 years had left the house at about 7-7.35pm about one year back but he did not remember the date of incident. When she did not return till 8-8.30pm the searched for her and when she could not be found, he lodged a missing report about her in Police Station Uttam Nagar, thereafter he came to know from a girl in the neighbourhood that one Mr. Parvesh living in his locality had taken his daughter on motorcycle. He informed the police and he went to the house of accused Mr. Parvesh along with police official where they were informed by his family members that the accused Mr.Parvesh had gone somewhere to attend a wedding. During her stay with the accused, his daughter had telephone him twice and thrice informing him that she had been confined by the accused and asked him to make her free. She could not tell the place and her phone got switched off. After about 15 days of his daughter going missing, he received information from Police station Uttam Nagar that his daughter and accused Mr.Parvesh were being Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar. Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 5 of 21 ::-
produced in the Court. After 3-4 days his daughter was handed over to him.
11. PW2 is the Duty officer who had recorded DD No.30A regarding the missing report of the prosecutrix on the basis of information furnished by Mr.Kanwarpal Singh.
12. PW3, the prosecutrix, the star witness of the prosecution, has deposed that it may be in the month of June in the last year that the accused forced her to accompany him and took her to his sister's house. He brought her to Tis Hazari Court. He used to talk about marrying her and threatened her that in case she did not co-operate with him, he may harm her parents and family. Due to the pressure exerted by the accused, she agreed for marriage and married the accused on 04.07.2011 in Arya Samaj Mandir. During this period, the accused did not allow her to make any call to her parents. She did not have any physical relations with the accused. Her parents came to know about the marriage. She had later come to the Court once when her statement was recorded by the hon'ble Judge. In her cross examination, she has deposed that she has known the accused for the last four years. She did not remember the month but it was on the 23rd day of the last year when the accused had taken her from the gali behind her residence where he had called her. He took her to his room which was at adjacent of around 30 minutes on foot. She did not raise any alarm to the public persons who were on the road while the accused was taking her to his room on foot. She has admitted to be correct that she had Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar. Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 6 of 21 ::-
stated before the learned Magistrate that she is 20 years old and she wants to stay with the accused who is her husband. She had made the statement on the request of the sister of the accused.
13. PW4 is the learned Metropolitan Magistrate, who had recorded the statement of the prosecutrix under section 164 Cr.P.C.
14. PW5 is the Investigating Officer. He had obtained the birth certificate of the prosecutrix from her school and verified her date of birth. He has admitted in his cross examination that the ossification test of the prosecutrix has not been conducted. He has also admitted that the birth certificate of the prosecutrix issued by Municipal Authority has not been seized nor file in the present case.
15. PW6 has produced the school admission register and the certificate of the Principal of the school of the prosecutrix and as per the school records, the date of birth of prosecutrix is 04.07.1996.
16. PW7 is the mother of the prosecutrix and she has deposed that she had told the police that she had a strong suspicion that her daughter is taken away by accused Mr.Parvesh. Initially her daughter has been sent to Naari Niketan and after two days they got her custody since when she is living with her.
Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar. Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 7 of 21 ::-
17. PW8, SI Yogesh Kumar, had conveyed the information regarding the missing report of the prosecutrix on Door Darshan, W.T Message, National Crime Record Bureau and CBI and issued Hue and Cry notice.
18. PW8, Dr.Deepshikha, has identified the signature of Dr. Sajid Hussain on the MLC of the prosecutrix.
19. PW9 had formally interrogated and arrested the accused when he had moved an application for surrender before the Court of learned Area Metropolitan Magistrate. He has also got the medical examination of the prosecutrix conducted and brought her to the Court for getting her statement under section 164 Cr.P.C.
20. The accused and his counsel have preferred not to cross examine PW1 Mr. Kanwar Pal, PW2 HC Jai Prakash, PW4 Ms. Shivali Sharma, PW6 Ms. Maninder, PW7 Ms. Raj Kumari, PW8 SI Yogesh Kumar, Dr. Deep Shikha PW8 and PW9 SI Vijender Singh. Their evidence remains uncontroverted and unrebutted and can be presumed to have been admitted as correct by the accused.
STATEMENT OF THE ACCUSED AND HIS DEFENCE
21. In his statement under section 313 Cr.P.C, the accused has controverted and rebutted the entire evidence against him submitting that Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar. Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 8 of 21 ::-
he is innocent and has been falsely implicated in this case. The prosecutrix had gone with him with her own will and they both had got marriage on 04.05.2011 in Arya Samaj Mandir according to Hindu rites and customs in the presence of two witness. The prosecutrix has not deposed anything against him in the proceedings under section 164 Cr.P.C. He has preferred not to lead any evidence in his defence.
DISCUSSION, ANALYSIS AND OBSERVATIONS
22. It is clear from the proceedings under section 164 of the Cr. P.C. (Ex.PW4/B to Ex.PW4/F) that the prosecutrix has stated her age to be 20 years. She has stated that the accused Mr. Parvesh is her husband and she wants to stay with him. She had gone with him with her consent and they have got married.
23. Even in her statement under section 161 of the Cr.P.C. she has stated that she wants to stay with Mr.Parvesh and they have got married in Arya Samaj Temple.
24. In her evidence before the Court, the prosecutrix as PW3 has deposed that the accused forcibly took her to his sister's house and from where he brought her to Tis Hazari Court. Under his threat and pressure that he would harm her parents and family, she agreed to marry him and married him on 04.07.2011 in Arya Samaj Temple. She does not want to stay with the accused. In her cross examination, she has deposed that she had gone to the gali (road) where the accused had called her and he took her to his room which was at a distance of 30 minutes on foot. She did not Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar. Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 9 of 21 ::-
raise alarm when he was taking her. She has admitted to be correct that she left her house at 8 pm to meet her friend who was living in her gali itself.
25. PW3 (prosecutrix) is hostile and has resiled from her previous statements under section 161 of the Cr.P.C. as well as under
section 164 of the Cr.P.C. wherein she has not supported the prosecution story and has not deposed anything incriminating against the accused person. However, in her evidence before the Court, she has deposed that she does not want to stay with the accused and that he had forcibly taken her and married her in Arya Samaj Temple.
26. The prosecutrix has taken different stands and given different versions of the alleged incident in her statements under section 161 of the Cr.P.C. as well as under section 164 of the Cr.P.C. and her evidence before the Court.
27. In the light of the aforesaid nature of deposition of the prosecutrix, PW3, who happen to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar. Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 10 of 21 ::-
be based on the evidence of such witness."
28. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases
487.
29. Consequently, no inference can be drawn that the accused is guilty of the charged offences. There is no material on record to show that the accused 15.07.2010 at about 6.30pm at Balaji Chowk, Sainik Enclave, Vikas Nagar, New Delhi within the jurisdiction of Police Station Ranhola, he kidnapped the prosecutrix (name withheld to protect her identity) aged about 15 years from the lawful custody of her guardian / father, Mr.Shri Pal, without her consent and intent that she may be compelled to marry against her will or in order that she may forced or seduced to illicit intercourse and her also committed rape of prosecutrix at Noida at the house of his brother in law (Jija) and at his village situated at District Etah U.P .
AGE OF THE PROSECUTRIX
30. Another issue in dispute is the age of the prosecutrix. The prosecution has claimed her age to be about 15 years while the accused has claimed that she was above 20 years and was a major on the date of the alleged offence and they were married with the free consent of the prosecutrix.
31. PW3 has stated in her statement under section 164 of the Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar. Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 11 of 21 ::-
Cr.P.C. that she is 20 years old. In her evidence before the Court, she has deposed that she is aged about 16 years old. PW1, the father of the prosecutix has deposed that she was aged about 14 years at the time of incident. Even in the FIR, he has mentioned her age as 14 years. PW6 has deposed that as per the school records (certificate of the Principal and school admission register), the date of birth of the prosecutrix is 04.07.1996 which makes her age above 15 years at the time of alleged offence.
32. It is clear from the evidence of the witnesses of the prosecution that they do not have the birth certificate issued by the Municipal Authorities or the MCD. The parents of the prosecutrix have not even deposed her date of birth.
33. It is also borne out of the record that the ossification test of the prosecutrix was not got conducted.
34. Now, the question arises, "As to whether the age as determined by scientific ossification test should be given preference to the oral age aspect of the prosecutrix?" While dealing with similar situation it was observed by Hon'ble Delhi High Court in a case reported as Brij Mohan v. State, 38 (1989) DLT 15, as under :-
"It is settled law that the absence of cogent evidence such as of birth entry, the determination of age scientifically i.e. by ossification test should be preferred to the other evidence, including an entry in the school register unless that to be flawless."
Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar. Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 12 of 21 ::-
Further more, in another case reported as Kanchan Dass v. State, 40 (1990) D.L.T. 401, it was held by Hon'ble Delhi High Court while dealing with similar aspect as under :-
"Assessment of age given on the basis of ossification test is to be preferred when there is doubtful oral evidence and suspicious evidence in the shape of school leaving certificate."
35. So, in view of the aforesaid judgments as rendered by Delhi High Court and applying the same to the facts and circumstances of the present case, it can be safely concluded that the ossification test of the prosecutrix is to be preferred over the oral age of the prosecutrix and her school records as such information would be furnished to the school by her parents.
36. It is a common knowledge that in India parents generally tell the age of the child in the school much less than the actual age of the child for the reason that he or she may get benefit of the same in future. Present case is also an exception to the same. It is clear that prosecutrix date of birth was not registered. Whatever her parents told verbally was written in the school record.
37. However, in the present case, there is neither the ossification test report nor the MCD date of birth certificate of the prosecutrix, Therefore, the Certificate of the School Principal and the school admission register (Ex.PW6/A and Ex.PW6/B) or the oral evidence of PWs 1, 3 and 6 cannot be taken into consideration.
Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar. Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 13 of 21 ::-
38. Therefore, applying the same ratio, it cannot be said that the age of the prosecutrix was 14 years or was a minor on the date of the alleged offence. The prosecution as failed to prove that she was a minor especially when she has herself stated her age to be 20 years before the learned Magistrate recording her statement under section 164 of the Cr.P.C..
SECTIONS 363 AND 366 OF THE IPC
39. In the present case, the charge sheet was filed under sections 366 / 363 IPC and the charge was framed under section 363 / 366 IPC.
40. For proving the offence under section 366 IPC, the first and foremost requirement of the prosecution is to prove that the prosecutrix was a minor on the date of the commission of the offence and then secondly that she has been kidnapped for illicit intercourse or marriage.
41. Therefore, applying the same ratio, it can be said that the age of the prosecutrix could be 18 years which makes her a major and it cannot be said with certainty that she was aged 14 years or was a minor on the date of the alleged offence. The prosecutrix appears to be a major on the date of commission of offence as the prosecution as failed to prove that she was a minor.
42. The hon'ble Delhi High Court in Vivek Kumar @ Sanju and another v. The State and another Crl. M.C. No. 3073-74/2006 decided on 23.2.2007 took similar view. Following observations in that Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar. Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 14 of 21 ::-
judgment are of some interest:
"There is no law which prohibits a girl under 18 years from falling in love with someone else. Neither falling in love with some body is an offence under IPR 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 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 feelings 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 right to kill her, because she intends to marry out of her 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 boy with whom she ran away and married.."
43. Similarly in Bhagwan Singh Ors. v. State & Anr. 2006 (3) JCC 2050, the High Court of Delhi had quashed the proceedings. In this case, the following portion from the judgment of S. Vardarajan v. State of Madras, 1965 SCR (1) 243 was quoted. I am privileged to quote the Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar. Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 15 of 21 ::-
same as below:-
"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) from the house of the relative of father where she is kept, 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 Sub-Registrar'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 accompanies 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.."
44. In the present case also, there is no material on record that the prosecutrix was taken or enticed or allured or forced by the accused. There is also no material on record to show that accused deceitfully took away the prosecutrix.
45. For proving the offence under section 366 IPC, the first and foremost requirement of the prosecution is to prove that the prosecutrix was a minor on the date of the commission of the offence and then secondly that she has been kidnapped for illicit intercourse or marriage.
Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar. Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 16 of 21 ::-
46. Section 366 IPC requires kidnapping or abduction of a woman with the requisite intent. The intent must be to compel her to marry any person against her will or to force or seduce her to illicit intercourse. Proof of such intention is vital for the purposes of section 366 IPC as pointed out by the Supreme Court in Faiyaz Ahmad v. State of Bihar, 1990 Cr.L.J. 2241 (SC). If a girl leaves the house of her parents of her own and is an adult, and accompanies a person to various places, no offence is committed under this section or any other section. Reliance can be placed upon the judgment reported as Om Parkash v. State of Haryana, 1988 Cr.L.J. 1606 (P&H).
47. In another case reported as Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, in para 25 it was observed by Hon'ble Supreme Court of India as under:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted......"
48. This brings me to the final question as to whether it was she who had gone of her own or had been enticed away by the accused. In this regard it is no doubt true that in her statement before this Court she has stated that she had herself gone with the accused voluntarily and without any threat, pressure, influence or coercion and married him and lived with him as his wife. In these circumstances, in the absence of an active role having been played by the accused, the allegations leveled against the accused stand ruled out altogether. There is no material to Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar. Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 17 of 21 ::-
conclude that the accused had used force or had enticed her or raped her. The evidence of the prosecution especially the prosecutrix is in favour of the accused. She also appears to have reached the age of discretion. However, it also cannot be ignored that she was of the age of discretion and sufficient maturity.
49. Here, I would like to incorporate the observations made by the Hon'ble Supreme Court in S.Vedarajan v. State of Madras AIR 1965 SC 942. In para 9 of the judgment it was observed as under:-
"It must, however, be borne in mind that there is a distinction between taking and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S.361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused persons. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.."
50. It can be assessed from the evidence of the prosecutrix hat she had gone with her free will and consent with the accused as she did not raise any alarm while they walked on foot to go to his sister's house. She also did not raise any alarm when he took her for marriage and even in the Arya Samaj Temple where they got married. She had wanted to stay Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar. Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 18 of 21 ::-
with the accused, as deposed in her statement under section 164 of the Cr.P.C.
51. It is clear from the record that the prosecutrix not only was a major on the date of alleged offence (as there is no proof of her being a minor) but she had also reached the age of discretion and had herself gone voluntarily with the accused and married him. She was neither taken away nor enticed from her father's custody by the accused. There is nothing incriminating on the record against the accused.
52. In the light of the aforesaid nature of deposition of the prosecutrix, PW3, who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
53. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases
487.
54. It has been argued on behalf of the accused that the prosecutrix was a consenting party. It may be observed here that consent Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar. Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 19 of 21 ::-
is an act of reason coupled with deliberation, after the mind has weighed the good and evil on each side in a balanced manner. Consent denotes an active will in the mind of a person to permit the doing of an act complained off. Consent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge of the significance and the moral quality of the act, but after having freely exercised a choice between resistance and assent. Where the prosecutrix had sufficient opportunity not only to run away from the house but she could have taken the help of the neighbours and medical evidence also indicated that there were no injuries on the person of the prosecutrix, it can be said that she was a consenting party.
55. Since the prosecutrix as PW3 have not deposed anything incriminating against the accused person, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused person. The prosecution story does not inspire confidence and is not worthy of credence.
56. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish kidnapping or enticing for illicit intercourse or marriage. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place. It appears from the evidence that it is not a case of kidnapping but of elopement.
Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar. Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 20 of 21 ::-
CONCLUSION
57. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused.
58. Accordingly, Mr.Parvesh, the accused is hereby acquitted of the charges. His bail bond and surety bond are cancelled and his surety is discharged.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C.
59. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
60. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
61. One copy of the judgment be given to the Substitute Additional Public Prosecutor, as requested.
62. After the expiry of the period of limitation for appeal, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 03rd day of December, 2012. ASJ-03, West, Delhi.
Sessions Case Number :22 of 2012.
Unique Case ID Number : 02401R0081442012.
FIR Number 190 of 2011; Police Station Uttam Nagar. Under sections 363/366 of the Indian Penal Code.
State versus Parvesh -:: Page 21 of 21 ::-