Delhi District Court
State vs 1. Alam @ Hathkata on 3 November, 2017
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC : E COURT: SHAHDARA:
KARKARDOOMA COURT: DELHI.
SESSIONS CASE No.13/2014
Unique Case ID No. 580/2016
FIR No.10/2013
U/S: 363/366 IPC
P.S: GTB Enclave
State Versus 1. Alam @ Hathkata
S/o. Sh. Asgar Ali
R/o. O310, Sunder Nagri,
Delhi.
Date of Institution : 10.03.2014
Date of Arguments : 15.09.2017
Date of Judgment : 03.11.2017
JUDGMENT
Case of Prosecution
1. The case of prosecution is based on the complaint of complainant Smt.Rambeti, who came to PS GTB Enclave and got her statement recorded. The gist of her statement was that complainant alongwith her family was residing at H.No.731, Gali No.7, Village ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 1 of 26 St. Vs. Alam @ Hathkata Khera, Shahdara, Delhi and used to sell chapaties on a rehri in front of SDN Hospital. On 10.01.2013 at about 10.3011 pm, daughter of complainant aged about 16 years, who alongwith her sister also used to help complainant on the rehri had gone to fetch water from in front of her house alongwith one Alam @ Hathkata, who was a rikshaw puller and also used to help complainant in her work. When complainant returned to her house, her daughter Pooja was not found there. She was searched but was not found anywhere. Alam @ Hathkata was also found missing from his house. Complainant raised suspicion that Alam @ Hathkata had taken away her daughter by inducing her. On the basis of statement of complainant, rukka was prepared and FIR was got registered. Investigation was conducted. During investigation, accused was arrested. After completion of investigation, chargesheet was filed.
2. On appearance, in compliance of section 207 IPC, copies were supplied to accused, and as offence punishable u/s. 366 IPC is triable by the Court of Sessions, present case was committed to Sessions Court.
Charge framed against the accused
3. Accused was charged u/s. 363/366 IPC, to which he pleaded not guilty and claimed trial.
______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 2 of 26 St. Vs. Alam @ Hathkata Witnesses examined
4. The prosecution examined 14 witnesses to prove its case.
5. PW1 Dr. Abhishek deposed that on 13.01.2013 at about 7.30 pm, he had examined prosecutrix Pooja and Dr. Akshay had prepared her MLC Ex.PW1/A. He deposed that after examining, prosecutrix was referred to SLR for gynea examination by Dr. Akshay. He identified the handwriting and signatures of Dr.Akshay, who had left the hospital, on the MLC of prosecutrix.
6. PW2 Ms. Rambeti is the complainant. She deposed that she sells roti/chapaties on patri. She deposed that she has four daughters and two sons. She deposed that prosecutrix Pooja is her youngest daughter and aged about 18 years. She deposed that accused is a rikshaw puller and sometimes used to help her in her work. She deposed she does not remember the date and month but one day in the year 2013 in winters, she had asked prosecutrix to fill water from the tank situated outside her house as the motor had gone out of order and had also requested accused to keep the water inside the house. She deposed that after waiting for prosecutrix for four hours, she came back to her house to look for her but she was not there. The water was lying in the house. She deposed that she made search for prosecutrix in the ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 3 of 26 St. Vs. Alam @ Hathkata neighbourhood but she was not found anywhere and accused was also not traceable, therefore, she went to the Police Station and lodged the complaint. She deposed that after about three days, on the asking of IO/SI Pooja, she went to the PS and found prosecutrix sitting there. She deposed that prosecutrix was ill and was not even identifying her. She brought her back to her house.
In her crossexamination by Ld. Defence Counsel, she admitted that she does not have the birth certificate of prosecutrix issued by Municipal Authority.
7. PW3 HC Rishi Kumar was the duty officer at PS GTB Enclave on 11.01.2013 from 9 am to 5 pm. He had recorded present case FIR Ex.PW1/A on the basis of rukka received from W/SI Pooja at about 4.05 pm. He proved his endorsement on the rukka as Ex.PW3/B and copy of DD No. 19A recorded by him as Ex.PW3/C.
8. PW4 Ms. Pooja is the prosecutrix. She deposed that she has studied up to 6th standard from a Govt. School and that she does not know her date of birth. She deposed that she knows the accused. She deposed that about 1 years and 78 months back, on 10.01.2013 at about 1010.30 pm, she was taking water from a tap in a utensil outside her house and accused was also helping her in taking the water. She ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 4 of 26 St. Vs. Alam @ Hathkata deposed that accused was known to her prior to occurrence and that they were having an affair. She deposed that accused told her "tumhari to shadi ho rahi hai, mera kya hoga" and that accused asked her to accompany him stating that she would have to live with him. She deposed that accused took her to an unknown place in Delhi and kept her in a rented house for about three days. Accused prepared some documents, which was stated to be the court marriage documents on which her signatures were taken. She deposed that documents were in Urdu and Hindi but she does not know what was written in those documents as she did not go through the same. She deposed that accused also took her to a mosque and that Maulvi in the mosque read some scriptures. She deposed that on the third day, accused brought her to the PS and had shown the documents to the police. Her mother was called to the PS and she returned to her house with her mother. She deposed that her statement was recorded before the Magistrate in a room. She deposed that her religion was got changed by the accused but no Nikah was performed. She identified her signatures on the documents Ex.PW4/B to Ex.PW4/I and stated that she is not aware of the content of the same.
In her crossexamination by Ld. Defence Counsel, she deposed that she can read Hindi. She admitted that the document Ex.PW4/G is in her handwriting. Denying the suggestion that she had ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 5 of 26 St. Vs. Alam @ Hathkata gone with accused with her free will and consent, she admitted that she had given a truthful statement u/s. 164 Cr.P.C, Ex.PW4/A before Ld. MM and volunteered that she is deposing truth today also. She admitted that there were houses in the neighbourhood of the house, where she was kept for three days. Admitting that public persons were living in those house, she deposed that she never talked with them as she was kept in the room. She was confronted with her statement u/s. 164 Cr.P.C Ex.PW4/A. She deposed that she did not raise any alarm in the room, where she was kept by the accused and also made no complaint against the accused to the neighbours. She deposed that she made no complaint against accused to the Maulvi also. She admitted that police did not record her statement.
9. PW5 is Dr. Sheetal, who deposed that on 13.01.2013, prosecutrix was produced before her for internal medical examination but prosecutrix and her mother refused for the same. She proved her report to this effect as Ex.PW5/A.
10. PW6 Ct. Yogender Kumar deposed that on 11.01.2013, he had went to Village Khera, Gali No.7 and handed over the copy of FIR and rukka to W/SI Pooja. He deposed that he was joined in the investigation and he alongwith IO had gone to the house of accused but ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 6 of 26 St. Vs. Alam @ Hathkata he was not found there. He deposed that IO had asked the complainant to give age proof of complainant and complainant told that she would produce the same at the PS.
11. PW7 Ct. Sant Kumar deposed that on 14.01.2013, accused was produced before the court and his one day Police remand was obtained. He alongwith accused and IO went to Sunder Nagri in search of one Naseem but he could not be found. He deposed that on 15.01.2013, accused was taken to H.No.C3/257, Gali No.27, Harsh Vihar, where notice was served to wife of landlord Rajender Singh as he was not present there. They had also gone to Bara Hindu Rao at the house of Qazi Nawabuddin but he was not present there.
12. PW8 is SI Amit Malik, to whom the present case file was handed over on 08.04.2013. He had only prepared the chargesheet and filed the same in the court.
13. PW9 is Qazi Hazi Nawazuddin Nawabuddin Naxbandi, who deposed that on 17.01.2013 some persons came at his house for Nikah of girl named Pooja alongwith accused Alam. He deposed that Pooja was converted into Islam vide conversion certificate Ex.PW4/B and that after conversion she became Shabnam. He deposed that Nikah ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 7 of 26 St. Vs. Alam @ Hathkata ceremony was conducted by him in the presence of some witnesses and after Nikah he issued the certificates Ex.PW9/A and Ex.PW9/B. He prepared three copies of the nikahnama, one copy for bride, one copy for bridegroom and one copy for keeping in record. He deposed that after ceremony, he had read over and explained the Nikahnama to both the parties, which is also having the photographs of both the parties.
14. PW10 is W/SI Pooja Saraswat, who deposed that on 11.01.2013, complainant Smt. Rambeti came to PS to lodge complaint regarding missing of her daughter Pooja suspecting that she eloped with accused Alam, who used to work with her. She recorded the statement of complainant and on the basis of same got the present case FIR registered. She had also recorded the statement of sister of prosecutrix namely Jyoti. She deposed that on 13.01.2013, she came to know that missing Pooja is present near SDN hospital. She alongwith one constable reached there where prosecutrix was found present. Mother of prosecutrix was also called at the spot. She recorded the statement of prosecutrix and got her medically examined. She deposed that she also came to know that Alam was also searching prosecutrix and was present near SDN hospital. She alongwith Ct. Shiv Kumar apprehended the accused and arrested him vide memo Ex.PW10/B conducted his ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 8 of 26 St. Vs. Alam @ Hathkata personal search and recorded his disclosure statement. She deposed that accused produced the documents regarding Nikah and conversion. She deposed that prosecutrix had also produced marriage certificate vide memo Ex.PW10/F. She collected the documents regarding marriage and conversion from Qazi and seized the same vide memo Ex.PW10/G. She had also seized school admission paper of prosecutrix vide memo Ex.PW10/H. She deposed that age proof of prosecutrix is Ex.PW10/I. In her crossexamination by Ld. Defence Counsel, she admitted that Principal of the school had not handed over any document regarding date of birth.
15. There is no prosecution witness examined as PW11. PW12 is Sh. Rajender, who deposed that on 08.01.2013, accused had come to his house for taking a room on rent. He deposed that accused told him that he was married and that he would supply the documents regarding his whereabouts for police verification when he will occupy the room with his wife. He deposed that on 10.01.2013 at about 10.30/11 pm, accused came with his wife to reside in his house on rent and that at that time, his wife was in the "ghunghat". He deposed that on 11.01.2013, he knocked the door of accused and his wife opened the door, who informed him that her husband had gone somewhere and at that time also, she was in "ghunghat", so he could not see her face. He deposed that due to death of some relative, he went to his village and returned on ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 9 of 26 St. Vs. Alam @ Hathkata 13.01.2013 and found that the said room was locked. On enquiry from his wife, he came to know that accused and his wife left the room on 12.01.2013 and that they did not disclose their whereabouts.
16. PW13 is Sh. Subhash Chandra, Sr. Teacher from EDMC Primary School. He brought the summoned record and deposed that as per the record of admission register No.2 of year 1991 to 2003, student Pooja was admitted in their school on 13.07.2001 in class Ist. He deposed that the date of birth of the student Pooja as recorded in their record is 11.03.1995. He proved the relevant entry as Ex.PW13/A. He proved the original admission form & affidavit of the father of student Pooja as Ex.PW13/B and Ex.PW13/C. He also proved the certificate Ex.PW10/I on the letterhead of school, which bears his signatures at point A. In his crossexamination by Ld. Defence Counsel, he admitted that at the time of admission of prosecutrix in the school, no birth certificate issued from MCD was given.
17. PW14 Smt. Jyoti is the sister of prosecutrix. She deposed that on 10.11.2013 (Sic.) she was working with her mother and prosecutrix on rehri as they used to sell roti and sabji on the rehri. She deposed that at about 9.30 pm, she saw that prosecutrix went to take ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 10 of 26 St. Vs. Alam @ Hathkata water from tanki and she asked accused to bring water from tanki and he assured her to do this. She deposed that at about 10.30/11 pm when they went to their house, they did not find prosecutrix. They tried to search her but could not succeed. They also tried to search accused but he was also not there. Thereafter, her mother made a complaint to the police.
18. SI Gopal Singh has also been examined as PW14. He deposed that he was joined in the investigation of this case alongwith IO/SI Pooja on 15.01.2013. He deposed that accused took them to house of Rajender Singh, where prosecutrix was kept. He deposed that landlord Rajender Singh was not present there and that IO enquired from his wife and gave her a notice with the direction to send her husband to join the investigation. He deposed that at the instance of accused, they also went to Bara Hindu Rao at the house of Qazi Nawabuddin, who got the nikah of prosecutrix and accused performed, however, he was not found there and notice was served upon his son with direction to send his father to join the investigation. He deposed that search for coaccused persons namely Mohd. Naseem and Naseem at Sunder Nagri and Nand Nagri was made but they could not be apprehended.
Statement and Defence of accused ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 11 of 26 St. Vs. Alam @ Hathkata
19. Statement of accused under section 313 Cr.P.C. was recorded, wherein he denied all the incriminating evidence and pleaded innocence. He did not opt to lead defence evidence.
Arguments and Conclusion
20. I have heard arguments addressed by Sh. Ashok Kumar, Ld. Addl. PP for State as also by Sh. K.P.S.Chauhan, Ld. Amicus Curiae for accused.
21. The Ld. Addl. PP for the State has requested for convicting the accused for having committed the offence under section 363/366 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.
22. Ld. Counsel for the accused has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. The prosecutrix has given false evidence in the court. The evidence of the prosecutrix as well as other prosecution witnesses is unreliable as it suffers from various contradictions and inconsistencies. He argued that no birth certificate of prosecutrix has been placed on ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 12 of 26 St. Vs. Alam @ Hathkata record and that the prosecutrix had gone with the accused with her free consent.
23. To prove the facts of the case, prosecution has examined three witnesses. The star witness of the prosecution is prosecutrix. Another two witnesses are mother & sister of prosecutrix, who have merely deposed that one day in the year 2013, prosecutrix had gone to fill water from the tank situated outside her house as the motor had gone out of order and accused was also requested to keep the water inside the house. They deposed that when they came back to their house, prosecutrix was not there. They made search for prosecutrix in the neighbourhood but she was not found anywhere and accused was also not traceable, therefore, complaint was lodged in the PS raising suspicion on the accused.
24. Prosecutrix in her statement u/s.164Cr.P.C, Ex.PW4/A has stated that accused Alam, who used to come to her mother's rehri for having food, was known to her for three years and that since her mother wanted to marry her against her wishes, she on 10.01.2013, at about 8.30 pm, went with accused to Harsh Vihar in a rented room. Accused also in his statement u/s. 313 Cr.P.C in answer to question no.3 stated that marriage of prosecutrix was fixed for 22.01.2013 and that she took him ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 13 of 26 St. Vs. Alam @ Hathkata alongwith her. She also stated that Nikah as well as Court Marriage between her and accused was performed, however, they did not live like husband and wife. She stated that on 13.01.2013 when they were returning home, they were apprehended by the police. The statement of mother of prosecutrix in raising suspicion against accused also suggest that it was well within her knowledge that prosecutrix was having an affair with accused and therefore, might have eloped with him, otherwise, how would she have suspected accused in taking away her daughter. The fact of accused's coming to the rehri of complainant and helping her without any payment is also admitted by mother as well as sister of prosecutrix.
25. Prosecutrix nowhere in her statement u/s. 164 Cr.P.C as well as in her statement before the court stated that accused enticed her or induced her to accompany him. While, in her statement u/s. 164 Cr.P.C, she gave a clean chit to accused and deposed that since her mother wanted to marry her with someone else without her consent, she went alongwith accused and married him of her own sweet will, in her testimony before the court she discarded her statement u/s. 164 Cr.P.C and deposed that accused told her " tumhari to shadi ho rahi hai, mera kya hoga" and asked her to accompany him and that she would have to live with him. The fact of uttering of these words by accused has for the ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 14 of 26 St. Vs. Alam @ Hathkata first time been told by the prosecutrix when she came to depose before the court and nothing as such was mentioned by her in her statement given before Ld. MM. Even this statement of prosecutrix also does not suggest that she was in any way forced, enticed or induced by accused. Such statement only leads to a conclusion that she of her own had accompanied the accused since Prosecutrix herself in her testimony before the court has deposed that she was having an affair with accused. Further, prosecutrix has come to depose in the court after a period of about two years during which time she was living with her mother, hence there is every possibility that she under pressure of her mother and other family members has deposed falsely by making some improvements in her statement.
26. Prosecutrix in her crossexamination has admitted that there were houses in the neighbourhood of the house, where she was kept for three days. She further admitted that there were public persons living in those house and stated that she never talked with them. She deposed that she did not raise any alarm in the room, where she was kept by the accused and also made no complaint against accused to the neighbours. She further deposed that she made no complaint against accused to the Maulvi.
Here, the judgment of the Hon'ble High Court of Delhi ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 15 of 26 St. Vs. Alam @ Hathkata reported as Shashi Chaudhary v. Ram Kumar and anr, 2011 (1) JCC 520 would be relevant wherein it has been observed that there is no explanation given by the prosecutrix for her not making hue and cry, when the alleged offence took place, nor is there any explanation for failure on her part to lodge the complaint with the police immediately or for that matter within a reasonable time of incident.
27. In her statement u/s. 164 Cr.P.C, prosecutrix herself has disclosed that she alongwith accused went to a rented room at Harsh Vihar, however, while deposing before the court, she stated that accused took her to an unknown place in Delhi. Further, after stating clearly and categorically in statement u/s. 164 Cr.P.C that court marriage and Nikah was solemnized between her and accused, while deposing in the court, she tried to plead ignorance about the fact and stated that accused prepared some documents, which was stated to be the court marriage documents on which her signatures were taken. She deposed that documents were in Urdu and Hindi but she does not know what was written in those documents as she did not go through the same. She deposed that accused also took her to a mosque and that Maulvi in the mosque read some scriptures. Admitting her signatures on Ex.PW4/B and Ex.PW4/i i.e conversion certificate and Nikahnama, she deposed that her religion was got changed by the accused but no Nikah was ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 16 of 26 St. Vs. Alam @ Hathkata performed. PW9 Qazi Hazi Nawazuddin Nawabuddin has deposed that Prosecurtix Pooja was converted to Islam vide certificate Ex.PW4/B and that after Nikah between Pooja @ Shabnam and accused he issued certificate Ex.PW9/B. He deposed that he prepared three copies of the Nikahnama, one for bride, one for bridegroom and one copy for keeping in record. PW10/W/SI Pooja Saraswat also deposed that prosecutrix had produced marriage certificate vide memo Ex.PW10/F, which fact corroborates the abovesaid version of PW9. PW9 further deposed that after ceremony, he had read over and explained the nikahnama to both the parties. The Nikahnama is also having the photographs of both the parties. In her crossexamination by Ld. Defence Counsel, prosecutrix stated that she can read Hindi and admitted that document Ex.PW4/G is in her handwriting. A combined reading of document Ex.PW4/G and deposition of PW9 clearly shows that prosecutrix herself was a consenting party for her Nikah with accused and was not in any way forced by anyone. Prosecutrix also admitted that she gave a truthful statement Ex.PW4/A before Ld. MM.
From the evidence adduced on record, it is clear that there are several unexplained contradictions, improvements and discrepancies in the different statements of the prosecutrix and that prosecutrix was a consenting party and had accompanied the accused of her own free will and accord. She remained with accused for about 34 days of her own ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 17 of 26 St. Vs. Alam @ Hathkata free will. In the light of the aforesaid nature of deposition of the prosecutrix PW4 who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance is 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:
28."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."
29. In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
30. In the judgment reported as Suraj Mal v. The State (Delhi Administration) AIR 1979, SC 1408, it was held that where witnesses ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 18 of 26 St. Vs. Alam @ Hathkata 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 witnesses. In AIR 2012 SC 3157, Rai Sandeep @ Deepu vs State of NCT of Delhi with Hari Singh v State of NCT of Delhi while laying down the quality of a witnesses Hon'ble Supreme Court held as under:
' "Sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be more relevant would be the consistency of the statement right from the time when the witness makes the initial statement and ultimately before the Court.....The witness should be in a position to withstand the cross examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of occurrence, the person involved, as well as, the sequence of it...It should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of the circumstances, to hold the accused guilty of the offence alleged against him. ...To be more precise, the version of the said witness on the core ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 19 of 26 St. Vs. Alam @ Hathkata spectrum of the crime should remain intact while all other attendant material namely, oral documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve." The discrepancies in the statements of prosecutrix are material discrepancies and she does not seem to be a sterling witness as defined in Rai Sandeep @ Deepu (supra).
31. To make out an offence of kidnapping, it has to be established that a girl below 18 years of age was kidnapped or taken out from the lawful guardianship. Section 361 IPC, provides that in order to constitute an offence of kidnapping, there should be taking away or enticement. In the instant case, it has been proved that there was neither taking away nor enticement. The prosecutrix of her own had gone with accused. There is also nothing on record to say that she was compelled to marry with accused against her wishes or was forced or seduced to illicit intercourse.
32. Now the only question left to be decided here is whether prosecutrix was minor at the relevant time. To prove the age of prosecutrix prosecution has relied upon the certificate issued by EDMC Primary School, which has been produced on record by PW13 Sh.
______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 20 of 26 St. Vs. Alam @ Hathkata Subhash Chandra, as per which the date of birth of prosecutrix is 11.03.1995. As deposed by PW13, the age of Prosecutrix mentioned in document Ex.PW13/A which is the entry in the admission register, has been written on the basis of affidavit of the father of prosecutrix. PW 13 in his crossexamination has admitted that at the time of admission of prosecutrix in the school, no birth certificate issued from MCD was given. PW4 Prosecutrix has deposed that she does not know her date of birth. PW2 Smt. Rambeti, mother of prosecutrix also in her cross examination by Ld. Defence Counsel, admitted that she does not have the birth certificate of prosecutrix issued by Municipal Authority. No birth certificate of prosecutrix issued by MCD has actually been placed on record. It is a known fact that in actual life parents most oftenly give false age of their children at the time of admission in school as well as procuring birth certificates, in cases, where the children are not born in hospitals or delivery takes place at home only, so that later they could have an advantage in life and in the lowerstrata of society, with which the prosecutrix belongs, parents are not so educated and they even did not pay any heed or notice the date on which their children born and when the need arises i.e at the time of seeking their admission in the school, they usually give an estimated date of birth of their children as per the requirement of admission in schools. In the case in hand, there is no document on record, which could establish the date of birth of ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 21 of 26 St. Vs. Alam @ Hathkata prosecutrix since no birth certificate issued by MCD has been placed on record and the admission of prosecutrix in school was sought only on the basis of affidavit of father of prosecutrix Late Sh. Mahender Singh Chauhan, who is not even available for his crossexamination. Hence, in the absence of any birth certificate, determination of the age of prosecutrix only on the basis of document Ex.PW13/C i.e the affidavit of father of prosecutrix, cannot be done. Moreover, even if we go by the statement of prosecutrix given at different points of time, though she was below the age of 18 years but was above 16 years, she was having an affair with accused and had gone away with accused of her own without any force or inducement. She stayed with accused for 3 days projecting herself as wife of accused. In this regard, statement of PW 12 Sh. Rajender, landlord of the house, where prosecutrix alongwith accused stayed in rented room is also relevant. PW12 Sh. Rajender Singh deposed that on 10.01.2013 at about 10.30/11 pm, accused came with his wife to reside in his house on rent and that at that time, his wife was in the "ghunghat". He deposed that on 11.01.2013, he knocked the door of accused and his wife opened the door, who informed him that her husband had gone somewhere and at that time also, she was in "ghunghat", so he could not see her face. All the aforesaid circumstances concerning her conduct clearly shows that she was herself a consenting party and that is why she tried to conceal her ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 22 of 26 St. Vs. Alam @ Hathkata identity by hiding her face with 'ghunghat' and did not tell anything with regard to her kidnapping and confinement by accused to her landlord even at the time when she had the opportunity. Deposition of PW2 mother of prosecutrix that when on receiving a call by the IO she reached the PS, she found prosecutrix sitting there, who was ill and was not even identifying her, also gives strength to the defence of accused that since prosecutrix had gone with accused of her own and wanted to live with him, therefore, intentionally she was not identifying her mother.
Hon'ble Supreme Court in 1994 Supreme Court Cases (Cri.) 435 titled State of Karnataka Vs. Sureshbabu Puk Raj Porral held that in such situation where age in doubt, the question of taking her away from lawful guardianship not made out Also where such victim willingly went with the accused to see places and moved together for 1011 days in different towns, the accused could not be held to have taken away her out of the keeping of her lawful guardian something more like inducement should have been shown.
33. In S. Varadarajan Vs. State of Madras, AIR 1965 SC 942 Hon'ble Supreme Court observed that " a girl below 18 years of age had asked her boyfriend (the accused) to come to a particular place and the accused had agreed to accompany the girl. In a situation, it was ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 23 of 26 St. Vs. Alam @ Hathkata held that where a minor leaves her father's protection knowing and having capacity to know the full import of what she is doing voluntarily joins the accused, the accused cannot be said to have taken her away from the keeping of her lawful guardian".
34. In the case of Bhagwan Singh & Ors. Vs. State & Anr. 2006 (3) JCC 2050, the father of the prosecutrix lodged an FIR of kidnapping of the prosecutrix. The prosecutrix had got married with the accused of her own freewill as per Hindu rites in Arya Samaj Mandir. The age of the prosecutrix was found to be 17 years and 3 months. The Hon'ble Court while relying on the judgments of Ravi Kumar Vs. State & Anr reported as 124 (2005) DLT 1 and the judgment of Hon'ble Supreme Court in S. Varadarajan's case (supra) held that since the prosecutrix has lawfully married of her own free will, accused cannot be blamed of kidnapping her and thus quashed the FIR lodged against the accused.
35. In the case of Ramesh Singh Vs. State II 1988 (3) Crimes 890, the Hon'ble Court held that keeping of a girl slightly below 18 years age and capable of understanding the implications such an act by a male person with the full consent of the former by itself may not necessarily give rise to the offence of kidnapping from the lawful guardianship of her parents.
______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 24 of 26 St. Vs. Alam @ Hathkata
36. In the instant case, prosecution has not been able to produce any evidence to show that accused had taken the prosecutrix with him by using force or inducement. Prosecutrix stayed with accused for about 3 days after herself having solemnized Nikah as well as Court Marriage with him, which is proved by marriage certificates Ex.PW4/D and Ex.PW4/I. She, nowhere stated that she was forced to marry with accused or that accused forced her to illicit intercourse, rather she deposed that they never lived as husband and wife. Had she been under any pressure of accused, she could have told this fact to the police or to Ld. MM when her statement u/s. 164 Cr.P.C was recorded. Prosecutrix has deposed before the court that accused himself brought her to the PS and it is not the case that she was got recovered by police from the custody of accused. The above facts clearly show that prosecutrix was in love with accused and had gone with him and married him out of her free will. MLC of prosecutrix also does not mention about any fresh injury, which may give rise to the doubt that she was subjected to any cruelty or force by accused. She refused to undergo internal examination also. Thus, from the testimony of prosecutrix it is evident that she left the house of her parents at her own. There is no evidence that she was forcibly taken away by the accused or enticed away by him. Hence, it can safely be held that accused had not taken away the prosecutrix from ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 25 of 26 St. Vs. Alam @ Hathkata protection of her lawful guardian within meaning of section 361 hence, ingredients of section 366 IPC are not attracted.
37. Prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had committed the offences. The evidence of the prosecutrix, PW4, is neither reliable nor believable as there are overwhelming contradictions in her different statements. If the prosecution evidence is read and considered in totality of circumstances along with other material on record, in which offence is alleged to have been committed, the deposition does not inspire confidence and is unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. Accordingly, in view of evidence & other material on record, judgments cited and relied upon hereinabove, accused is acquitted of all the offences, with which he was charged. His bail bond stand cancelled. Surety is discharged. However, he is directed to furnish personal bond u/s 437A Cr.P.C. for a period of six months in the sum of Rs.10,000/ with one surety in the like amount. After furnishing the bail bond, file be consigned to record room. SANJEEV KUMAR MALHOTRA Digitally signed by SANJEEV KUMAR Announced in the open court MALHOTRA Location: Karkardooma Courts, Delhi Date: 2017.11.06 14:43:46 +0530 on 03.11.2017 (Sanjeev Kumar Malhotra) ASJ/FTC/ECOURT Shahdara/KKD/Delhi ______________________________________________________________________ FIR No. 10/2013, PS. GTB Enclave 26 of 26 St. Vs. Alam @ Hathkata