Delhi District Court
-: 1:- State vs . Sulender Kumar on 11 December, 2007
SC No.391/06
-: 1:- State Vs. Sulender Kumar
IN THE COURT OF A.K.MENDIRATTA : ADDL.SESSIONS JUDGE :
ROHINI COURTS : DELHI
SC NO.391/06
STATE VS. SULENDER KUMAR @ SURINDER KUMAR
S/O SH.DAYA NAND SHARMA
R/O VILLAGE SMASTIPUR, DISTRICT BEGU
SARAI (BIHAR)
FIR NO.189/06
P.S.MANGOL PURI
U/s 363/366/376 IPC
JUDGMENT
Present case was registered on the complaint of Smt.Promila Devi wife of Sh.Mahinder Chaudhary. She alleged that on 13.03.06 at about 10.00 a.m. her daughter aged about 14 years went to attend call of nature but thereafter failed to return. Accused Surinder Kumar living in the neighbourhood was also stated to be missing from the same day and she caste suspicion that accused had lured and taken away her daughter. During investigation, prosecutrix was traced from the village of accused at Samasthipur. The garments worn by the prosecutrix were taken into possession and prosecutrix was got medically examined. Accused was also got medically examined and was formally arrested. Exhibits were forwarded for examination to FSL, Rohini and challan was presented after formal investigation. SC No.391/06
-: 2:- State Vs. Sulender Kumar
2. Charge against the accused was framed U/s 363/366A/376 IPC to which he pleaded not guilty and claimed trial.
3. Prosecution in support of its case examined 11 witnesses namely PW.1 (prosecutrix), PW.2 Promila Devi (mother of prosecutrix), PW.3 Ram Sagar Choudhary (Uncle of Prosecutrix), PW.4 Dr.Indermit Singh, PW.5 Dr.Meena Rani, PW.6 Ct.Meena Kumari , PW.7 ASI Madan Lal, PW.8 Ct.Surender Pal, PW.9 HC Surender Kumar , PW.10 Mrs.Anita Chhari, Senior Scientific Assistant & PW.11 SI Mahender Singh (IO). PW-
1(prosecutrix) deposed that on 13.03.06 at about 10.00 a.m. she ran away from her house of her own will to B Block, Peera Garhi, Mangol Puri where she had given time to accused. She accompanied the accused to his house in village Samastipur and before departing they married in Kali Mandir, Madhuban Chowk, Delhi. Further she lived as his wife for one month in the village. The police accompanied with her maternal Uncle Ram Sagar reached the house of the accused in village and recovered her vide memo Ex.PW.1/A. She further stated that she was brought at P.S.Mangol Puri alongwith accused and was taken for medical examination. The witness was cross examined by the state as she resiled from her earlier statement recorded U/s 164 Cr.P.C. She denied having disclosed her age as 14 years in her statement to the police. She further stated SC No.391/06
-: 3:- State Vs. Sulender Kumar that she had failed twice in 7th class. She denied the suggestion that accused promised to marry her on promise of establishing physical relationship. Further during cross examination on behalf of the accused she deposed that she had disclosed her parents that she loved the accused and initially they agreed for her marriage with the accused. However, later on they got money from some other person and wanted to marry her with some other person. For the aforesaid reasons she ran away with the accused. She also stated that she wanted to live with accused.
4. PW-2 Smt.Promila Devi deposed that she had lodged the FIR Ex.PW2/A on 18.03.06 at PS Mangol Puri. She stated that her daughter had left the house on 13.03.06 at about 10 a.m. for toilet without taking permission from her father and did not return till lodging of FIR. Accused resident in neighbourhood was also stated to be missing from his house. She raised suspicion on him that he had taken away her daughter. Further on 10.04.06 she produced the peticot of her daughter to the police and same was seized vide memo Ex.PW2/B. The peticot was identified as Ex.P-1.
She admitted during cross examination that her husband is ill for last 3-4 years and was not doing any job. She further stated that she had got the birth of her daughter registered with Municipal Authority but later on lost the same.
PW-3 Ram Sagar Chaudhary, uncle of prosecutrix deposed that his SC No.391/06
-: 4:- State Vs. Sulender Kumar niece was missing since 13.03.06 and he came to Delhi on receiving telephonic information from his sister and FIR was lodged with the police. He took the whereabouts of accused Sulender and returned to his native place. He ascertained the whereabouts of accused and found the accused in his house alongwith posecutrix. On 5.4.06 he informed the police in Delhi and was instructed by the police to reach at PS Sahibpur. Thereafter, he alongwith police officials from Delhi police and Bihar police reached the house of accused. Accused was arrested vide memo Ex.PW3/A and his personal search was conducted vide memo Ex.PW3/B. Prosecutrix was recovered and memo Ex.PW 1/A was signed by him. Thereafter they returned to PS Sahibpur.
PW-4 Dr. Indermit Sngh proved the MLC of accused Sulender Ex.PW4/A. PW-5 Meena Rani, Vice Principle of Govt. Sr. Sec. School, Mangol Puri deposed that as per entry in the admission register prosecutrix was admitted in class 6th and her date of birth was mentioned in the register as 15.11.92. Copy of the register was proved as Ex.PW5/A and the certificate issued by her as Ex.PW5/B. During cross-examination she stated that the date of birth was recorded on the basis of school leaving certificate of 5th class and she had not seen the birth certificate issued by municipal authority. SC No.391/06
-: 5:- State Vs. Sulender Kumar PW-6 Ct. Meena Kumari stated that the prosecutrix was taken by her for medical examination at Sanjay Gandhi Memorial Hospital. After medical examination doctor handed over the parcel sealed with the seal of hospital and sample seal which was handed over to the IO and taken into possession vide memo Ex.PW6/A. PW-7 ASI Madan Lal, Duty Oficer proved the FIR Ex.PW7/A which was recorded on the basis of statement of Smt. Promila Devi (mother of prosecutrix).
PW-8 Ct. Surinder Pal stated that he had taken the pullandas to FSL, Rohini vide RC no. 92-91.
PW-9 HC Surender Kumar, MHC(M) deposed that the pullandas alongwith sample seal of hospital and one FSL form were deposited and same were entered as per Ex.PW9/A in register in 19. Further on 25.09.06 the pullandas were forwarded to FSL, Rohini and on 3.11.06 the result was received.
PW-10 Mrs. Anita Chhari, Senior Scientific Assistant, FSL, Rohini proved the report as Ex.PW-10/A and report of Serological examination as Ex.P-10/B. PW-11 SI Mahender deposed as to the formal conduct of investigation and arrest of the accused. He also proved the seizure memo vide which the SC No.391/06
-: 6:- State Vs. Sulender Kumar underwear of accused was taken into possession vide memo Ex.PW11/A and the seizure memo of blood sample of accused Ex.PW11/B. He also stated that the school certificate of the prosecutrix was collected and her bonny age examination was also done. The report of same was proved as Ex.PW11/D.
5. Thereafter prosecution evidence was closed. Statement of accused was recorded. Accused denied the prosecution version. He further stated that the prosecutrix had left voluntarily and her date of birth has been wrongly recorded and she is a major. He also submitted that prosecutrix had married with her free will and case has been fabricated. However, no evidence was led in defence.
6. I have heard Ld. APP for State, Counsel for the accused and perused the record carefully.
Ld.Counsel for accused has contended that the prosecution version has not been proved since prosecutrix had left of her own free will and at no stage any protest was raised by her. It is submitted that in her own statement she disclosed her age as 19 yeas and was major. Reliance has also been placed on the fact that prosecutrix deposed that she had failed twice in 7th class and would have been in 9th class. It is vehemently contended that since prosecutrix had left voluntarily without an enticement or inducement on the part of the accused no case u/s 363/366/376 IPC is made out. Reliance has SC No.391/06
-: 7:- State Vs. Sulender Kumar been also placed upon "AIR 1993 Supreme Court 2448 'Jagtar Singh Vs. State of Punjab''.
On the other hand submissions have been opposed on behalf of Ld. APP for state on the ground that consent of the prosecutrix is immaterial as she was minor on the date of commission of offence. It is submitted that the prosecutix was born on 15.12.92 as per school certificate and was aged little less than 14 yeas on the date of commission of offence i.e. 13.03.06. It is also submitted that even as per the bony age examination she was opined to be aged between 14-16 years as on 15.03.07.
7. At the outset on the basis of statement of prosecutrix it can be safely inferred that the prosecutrix had left voluntarily on her own volition and there is no whisper that she was induced or threatened in any manner. She herself admitted that she had voluntarily married with accused prior to leaving at Kali Mandir and wanted to live with the accused. She has also stated that her parents wanted to marry her at some other place for money so she had left her home. In view of her statement it cannot be presumed that the accused had enticed her, as she herself also wanted to leave her parental home since her parents wanted to marry her at some other place for monetary consideration. To hold guilty of offence of kidnapping, it must be shown that accused took some active part by persuasion or otherwise to SC No.391/06
-: 8:- State Vs. Sulender Kumar cause the girl to leave her home. In the absence of any evidence as to the inducement or persuasion by accused merely because the accused had helped the prosecutrix in fulfilling her wish of marriage and had been living together under the same roof would not substantiate the prosecution case of kidnapping. The age of the prosecutrix even if under 18 would be irrelevant, in case the taking or inducement for formation of opinion by prosecutrix to leave her home is not established on record. Reference in this regard may also be made to 2004 Crl.J.539 entitled Mahender Vs. State of Gujrat" wherein under similar circumstances accused was acquitted for offence U/s 363/366 IPC. For the foregoing reasons prosecution has failed to prove the charge U/s 363/366 IPC.
8. To establish the offence U/s 376 IPC, the foremost bone of contention is the age of the prosecutix as on the date of commission of offence. The date of birth certificate of prosecutix which could have been the best proof to determine the age of the prosecutrix has not been produced by mother of prosecutrix, though she admitted in her statement that date of birth certificate issued by municipal authority existed but was lost. PW-5 Vice Principal of the school wherein the prosecutrix was admitted stated her date of birth as 15.11.92. The same is stated to have been recorded on the basis of the earlier school leaving certificate of 5th SC No.391/06
-: 9:- State Vs. Sulender Kumar class but not on the basis of birth certificate issued by municipal authority. As such the basis on which date of birth was entered as 15.11.92 is not reliable, as the date of birth certificate issued by municipal authorities has not been proved. It may also be noticed that the prosecutrix on the other hand herself has deposed that she failed twice in 7th class and her present age was claimed to be 19 years. In view of above the prosecutrix has strongly disputed her age and supports the accused on the point of her age. The prosecution on the other hand relies upon bony age examination of prosecutrix. As per the report dt. 15.03.07 the age of prosecutrix has been opined to be between 14-16 years.
9. I am of the considered view that the benefit of outer limit of opinion as to the age has to be given to the accused. Further the age of the prosecutrix given in ossification test has to be seen in the light of oral deposition by the prosecutrix herself, deposing her age to be 19 years on the date of evidence and 18 years in her statement recorded U/s 164 Cr.P.C. In the present case the prosecution has also not examined the doctor to bring out the basis or factors which weighed for making the opinion. The same becomes important in the light of the fact that municipal birth certificate has not been produced and the prosecutrix has claimed her age to be much more than recorded in the school certificate. The SC No.391/06
-: 10:- State Vs. Sulender Kumar prosecution as such has failed to conclusively prove that the prosecutrix was minor/ below 16 years for the purpose of constituting statutory offence of rape U/s 376 IPC. In the facts and circumstances the inference as to the age of the prosecutrix on the date of incidence even above 16 years is equally plausible and the benefit of doubt goes to the accused.
Another aspect of the matter is that the prosecutrix has claimed that she had married the accused before leaving for Bihar at Kali Mandir and her age can be safely inferred to be above 15 years on the date of incident even as per bony age examination, since benefit of 2 years is to be given to the accused. In that eventuality the sexual intercourse by a man with his own wife, the wife not being under 15 years is not rape as per exception to Section 375 IPC. For the foregoing reasons I am of the considered view that the offence of rape has not been proved beyond reasonable doubt by the prosecution. I have also earlier observed that the offence U/s 363/366 IPC is not made out as no enticement or inducement has been proved on the part of the accused. The accused is according acquitted of the offences U/s 363/366/376 IPC. Accused be released forthwith if not required in any other case.
It is also pointed out that the prosecutrix in this case appears to be in Nari Niketan and had refused to go alongwith her parents as accused was in SC No.391/06
-: 11:- State Vs. Sulender Kumar custody despite seeking her option. In view of above prosecutrix may be produced before Ld. MM for her release and further necessary action, as she is in no manner required to be kept in Nari Niketan in connection with the present case.
Appeal file be consigned to record room.
Announced in the open court
On 11.12.07 (A.K.MENDIRATTA)
ASJ:ROHINI:DELHI
11.12.07
Pr. Ms. Neeta Gupta, Addl.P.P. for State.
Accused in JC with counsel.
Arguments heard.
Vide separate judgment accused has been acquitted. SC No.391/06
-: 12:- State Vs. Sulender Kumar Accused be released forthwith in case he is not required in any other case. The prosecutrix in this case appears to be in Nari Niketan and had refused to accompany her parents as the accused was in custody. She is not required in any manner with respect to present case and as such Ld. MM shall issue production warrants for her appearance and pass further necessary orders for her release in accordance with law. Copy of this order be forwarded to Ld.MM for compliance. File be consigned to record room.
(A.K.MENDIRATTA) ASJ:ROHINI:DELHI 11.12.07