Delhi District Court
Judgment In The Case Of Sonu vs State (Nct) Of Delhi, on 30 August, 2011
IN THE COURT OF MS. R. KIRAN NATH
ASJ 01, SOUTH DELHI, SAKET COURTS
S. C. No. 75/10
STATE
Vs.
Suraj Kumar Bisht
S/o Shri Anil Singh Bisht
R/o P39, Village Pilanji,
Delhi.
FIR No. : 61/10
P.S. : Sarojini Nagar
U/S : 363/366/376 IPC.
Date of Institution : 26072010
Date of Judgment : 30082011
J U D G M E N T
1. The accused has been charged with and has faced trial for having committed offences u/s 363/366/376 IPC.
2. The case of the prosecution is that on 030510 complainant Smt. Tara Devi came to PS and reported FIR No. : 61/10 Page no. 1 that her daughter Kavita aged about 13 years was missing and she suspected that accused Suraj might be involved in this. On this, case u/s 363 IPC was registered. Subsequently, prosecutrix came to the PS with her mother and their statements were recorded. In the said statement u/s 161 Cr.PC, the prosecutrix had stated that she was taken by Suraj to Sunder Nagari to his friend's place and there he raped her against her wishes. The prosecutrix was got medically examined. Her statement was also got recorded u/s 164 Cr.PC. Lateron provisions of section 366/376 IPC were also added. Accused was arrested and was also medically examined. Statements of the witnesses were recorded. The medical exhibits of the prosecutrix were also sent to FSL. After completing the investigation the chargesheet was filed in the court.
3. In view of the allegations contained in the charge sheet, charge u/s 363/366/376 IPC IPC was framed against the accused to which he pleaded not guilty and FIR No. : 61/10 Page no. 2 claimed trial.
4. In support of its case the prosecution has examined 12 witnesses.
5. PW1 is Dr. Preeti, Senior Resident Safdarjung hospital, who had medically examined the prosecutrix on 050510, who had come with the alleged history of going with one Suraj (accused), marrying him and having sexual contact with him on 020510 at night at her friend Renu's place. The witness further testified that the (prosecutrix) had further disclosed to her that she was brought back by her sister Pooja and her husband on 040510 and she had washed herself after making sexual contact. On examination hymen was not found intact. Blood sample and urine sample were taken and the same were sealed and handed over to ASI Saroj Bala. She had proved the MLC prepared by her as Ex.PW1/A.
6. PW2 is Dr. Rashmi, Senior Resident from Safdarjung hospital, who had also examined the FIR No. : 61/10 Page no. 3 prosecutrix on 050510 at about 6.00 pm to whom the prosecutrix had given the alleged history of having a fight with her mother on 020510 and thus having gone to her friend Renu's place. That thereafter on 040510 she called up her sister Pooja and went with her to her home in Pillanji. The witness further testified that prosecutrix did not give any history of assault physically or sexually and she refused for her medical examination. The prosecutrix was brought to hospital by constable Himani. She had proved the said MLC as Ex.PW2/A.
7. PW3 is the prosecutrix herself, whose statement would be discussed at length at appropriate stage.
8. PW4 is Tara Devi, the mother of the prosecutrix. She testified that about five months ago her daughter (prosecutrix) aged about 13 years went missing as she did not return from work. They made searches for her and she was traced by her elder daughter Pooja as she was residing somewhere in the area across Yamuna. The prosecutrix was brought back after three days; she FIR No. : 61/10 Page no. 4 reported the matter to the police where FIR was registered and lateron she came to know that her daughter was taken away by Suraj (accused) present in the court today. That her daughter was also medically examined.
9. PW5 is SI Manvendra Singh, who had testified that on 030510, the complainant Smt. Tara Devi came to the PS and reported about the abduction of her daughter Kavita, aged about 13 years. She had a suspicion on accused Suraj. That a case was registered u/s 363 IPC and investigation was handed over to him. He further testified that during the investigation of the case, the prosecutrix and her mother came to the PS and their statements were recorded u/s 161 Cr.PC and she was medically examined in Safdarjung hospital. The accused was arrested by him vide memo Ex.PW5/A and his personal search was conducted vide memo Ex.PW5/B; the accused was medically examined by him and his medical exhibits were seized vide memo FIR No. : 61/10 Page no. 5 Ex.PW5/C and the medical exhibits of the victim were seized vide memo Ex.PW5/D. He got recorded the statement of the prosecutrix u/s 164 Cr.PC.
10. PW6 is Shri Joginder Singh Tanwar, Yoga Teacher from N.P. Coed, Secondary School, Lakshmibai Nagar. He had brought the record pertaining to the prosecutrix and had testified that the prosecutrix was student in their school and as per records her date of birth was 100696. He had proved the photocopy of admission register as Ex.PW6/A and copy of school leaving certificate as Ex.PW6/B. He had also proved the certificate issued in this regard by Ravi Gupta, Vice Principal of the school as Ex.PW6/C.
11. PW7 is Shri T.R. Rastogi, Principal of N.P. CoEd, Secondary School, who had proved the date of birth of the prosecutrix based on the admission register and school leaving certificate. He further testified that the date of birth was entered on the basis of the affidavit and admission form as Ex.PW7/A and Ex.PW7/B FIR No. : 61/10 Page no. 6 respectively.
12. PW8 is Dr. Sandeep Sharma, Medical Officer from Safdarjung hospital. He had proved the MLC of the accused prepared by Dr. Ravi Bhushan as Ex.PW8/A.
13. PW9 is Md. Azad, who was put up by the prosecution as a witness to prove that accused stayed in his house at Sunder Nagari, with another girl whom he could not recognize now. However, he turned totally hostile and stated that he was not the owner of H. No. 372, Sunder Nagari and that his father in law was the owner. He testified that he had only fixed a tube light there being the electrician. That he could not identify anybody and he did not know anything else. This witness was declared hostile by the Ld. Addl. PP and was crossexamined. He categorically denied the suggestion that he was the owner of H. No. 372, Sunder Nagri or that accused Suraj Kumar present in the court stayed there along with a girl.
14. PW10 is SI Saroj Bala, who received the FIR No. : 61/10 Page no. 7 investigation of this case on 050510. She testified that she got the prosecutrix medically examined and seized her medical exhibits vide memo Ex.PW5/D and sent her (prosecutrix) to NGO Prayas. That on the next day she was produced by her in CWC and she obtained the permission to get her statement recorded u/s 164 Cr.PC. She got recorded the statement of the prosecutrix u/s 164 Cr.PC and thereafter the prosecutrix was sent back to NGO Prayas. Thereafter she was transferred from the PS and further investigation was not conducted by her.
15. PW11 is HC Naresh Kumar, who had recorded the FIR in this case on the basis of the statement given by Tara Devi, mother of the prosecutrix. He had proved the said FIR as Ex.PW11/A.
16. PW12 is Dr. Mohit Gupta, who had proved the RA report as Ex.PW12/A which was prepared by Dr. Nihit Gupta.
17. In his examination u/s 313 Cr.PC all the FIR No. : 61/10 Page no. 8 incriminating evidence was put to the accused which he denied and stated he was innocent and had been falsely implicated in this case. He had stated that he did not know why this case had been registered against him. The prosecutrix had left his house stating that she had to go to her friends house and that her parents knew about it. She did not return thereafter and he had been implicated in this case.
18. I have heard the Ld. Addl. PP for the State as well as the counsel for the accused at length and have also gone through the record carefully.
19. In her statement recorded u/s 161 Cr.PC (as also in statement u/s 164 Cr.PC) recorded on 050510 (when she was produced in the PS by her mother) the prosecutrix had stated that accused had taken her with him on 020510 inducing that he would marry her and keep her like a queen. He took her away and kept her with a couple in Sunder Nagri, Delhi and raped her against her wishes at night and that he married her FIR No. : 61/10 Page no. 9 with exchange of garlands. That on 040510 her sister came there looking for her and took her away.
20. In her statement u/s 164 Cr.PC Ex.PW3/A recorded on 060510, she had stated that when she was going towards Sarojini Nagar, for some work, one boy namely Suraj, made her sit in an auto forcibly. Thereafter Suraj took her to his friend's house at Sunder Nagri. Nobody was present there and Suraj (accused) started teasing her. Suraj was their neighbour. Thereafter he removed her clothes forcibly and he also removed his clothes. She further stated that thereafter he had done wrong act with her; she was screaming but no one heard her noise as no one was there at home. Thereafter she telephoned her parents from STD booth and her sister and brother in law came there to take her but in the meantime Suraj ran away from there.
21. However, when the prosecutrix was examined in the court as PW3 she turned totally hostile and testified that on 020510, she had gone with the accused of her FIR No. : 61/10 Page no. 10 own free will and got married with the accused outside the temple. However, her sister Pooja brought her back on 040510 and she was taken to the PS. She further testified that she told the true facts to the PS but no one believed her and she was threatened and even the police had beaten her and even then she refused for her medical examination. However, subsequently under threat she was made to give consent for medical examination and out of fear she had also given the wrong statement in the court (u/s 164 Cr.PC).
22. It may also be noted that when the prosecutrix was taken to the hospital at 6.00 pm on 050510, she refused for her medical examination and had given the history to the doctor that she had a fight with her mother on 020510 and had gone to her friend's place Renu. That on 040510 she called up her sister Pooja and went with her to her house i.e. she did not give any history of any sexual assault. She was brought there (hospital) by lady constable and her mother. It is seen FIR No. : 61/10 Page no. 11 from the MLC Ex.PW2/A that her mother did not give her willingness for the medical examination of her daughter and hence the prosecutrix was not medically examined. The record further shows that again at 9.00 pm on the same day, the prosecutrix was again taken to the hospital and at that time the prosecutrix had given a different history to the doctor i.e. she stated that she had gone on 020510 to her friend's place Renu at around 9.30 am and that she had so gone with her friend Suraj (accused). She further states that she got married to Suraj at the house of her friend Renu. They performed ritual in front of Renu and her husband Munna and thereafter she had sexual contact with Suraj in the night and she stayed at her friend's house till 040510 with the accused but she was forcibly brought back by her sister Pooja and her husband on 040510. The mother agreed for the medical examination of her daughter at that time and her medical examination was done as per MLC Ex.PW1/A. FIR No. : 61/10 Page no. 12
23. Thus it is seen that the prosecuterix in this case has not supported the case of the prosecution at all and had stated that she was in love with the accused and had gone with him of her own free will and consent and she had got married with him outside a temple and was living with him but her sister Pooja forcibly brought her back after two days and she was taken to the police station. She told the correct facts but no one believed her and threatened her and was also beaten by the police. She refused for her medical examination but later on she was medically examined. She had given wrong statement in the court out of fear.
24. She categorically stated that she had physical relations with the accused with her own consent. She was under fear when her statement u/s 164 Cr. PC was recorded and thus could not tell the truth and had made a false statement. She categorically stated that she was 18 years of age and and the date of birth on the school certificate was wrong.
FIR No. : 61/10 Page no. 13
25. The Ld. Addl. PP has argued that as per the school record proved by PW6 from the school where the prosecutrix was studying, the date of birth of the prosecutrix was 100696 which means that she was 14 years of age at the time of the incident. Counsel for the accused has argued that the crossexamination of this witness (of school record) shows that the date of birth of the prosecutrix was entered in the school records on the basis of the affidavit of her parents and admission form i.e. there was no cogent evidence that date of birth was actually 100696 as stated. It was submitted by him that it is common practice for the parents hailing from villages or societies where the birth of the child is not registered, to declare the date of birth (on affidavit or otherwise) so as to confirm it within the permissible age limit in which the admission could be sought in the school. It was thus argued that the date of birth as entered in the school could not be taken as conclusive proof of her actual age at the time of the incident.
FIR No. : 61/10 Page no. 14
26. On the other Ld. Adll. P has also argued that besides the said evidence, the ossification test of the prosecutrix was also conducted for determining her age and according to the said report Ex.PW1/B her age was in the range of 1314 years. Ld. Addl. PP argued that thus even if one does not accept the evidence of school record with the respect to the age of the prosecutrix, the ossification report Ex.PW1/B proves that the prosecutrix was less than 16 yeas at the time of the incident and thus could not have given her valid consent to the sexual intercourse with the accused.
27. Counsel for the accused has produced before me the judgment in the case of Sonu Vs State (NCT) of Delhi, 2010 (2) JCC 1337 in which it was held that it was settled that the age determined through radiological examination is not exact and may vary by two years on either side. Margin of error in such a radiological examination is two years on either side and according to the settled principles of criminal jurisprudence benefit of FIR No. : 61/10 Page no. 15 this variation must go to the accused; if such benefit is extended to accused, age of the prosecutrix can be taken above than 16 years.
28. In the case of Jaya Mala Vs Home Secretary, Government of Jammu & Kashmir & Ors., AIR 1982 SC 1296, it was held by Hon'ble Supreme Court that margin of error in age ascertained by radiological examination is to be taken as two years on either side.
29. Hence giving the margin of two years of age it could be said that the prosecutrix was 16 years of age at the time of incident and could have given her consent. The evidence proves that sexual contact between the accused and the prosecutrix was with the consent to the prosecutrix.
30. Counsel for the accused has also placed before me the judgment of Hon'ble Division Bench of our own Hon'ble High Court of Delhi in the case of Jitender Kumar Sharma Vs State & Anr. III (2010) DLT (CRL.) 675 (DB), wherein the minors (accused and FIR No. : 61/10 Page no. 16 prosecutrix) had ran away from their home and got married. After discussing the provisions of sections 13 (2) (iv) of Hindu Marriage Act, the Hon'ble High Court observed that these provisions show that even the marriage of minor girl below the age of 15 years is regarded as valid and can only be dissolved on her petition when she becomes a major. It was held that the marriage of a minor child would still be valid unless it is a void marriage under the applicable personal law. So a Hindu marriage which is not void marriage under HMA would continue to be such if provisions of section 12 of Prohibition of Child Marriage Act, 2006 are not attracted. The Division Bench of Hon'ble High Court in the aforesaid case also distinguished between the child marriage forced by the parents on their children which is a social evil aimed to be curbed by Child Marriage Restraint Act (by the Prohibition of Child Marriage Act) and the marriages contracted by the minor themselves without the consent of their parents either by running FIR No. : 61/10 Page no. 17 away from home or by keeping it secret and it was observed that thus the child marriages in the mould of teenage marriages of the West have to be treated differently.
31. Hence, in view of the fact that prosecutrix and accused ran away; got married and had consensual physical relations and view of the aforesaid judgments, the accused is acquitted of the charges levelled against him.
Announced on 30th August, 2011.
(R. Kiran Nath) ASJ01/South New Delhi.
FIR No. : 61/10 Page no. 18
State Vs Suraj Kumar Bisht
FIR no.61/10
PSSarojini Nagar
30082011
Present: Shri Manoj Chaudhary, Ld. Addl. PP for the State.
Accused from JC along with counsel.
Final arguments heard.
Vide separate judgment of the date, accused is acquitted of the charges levelled against him.
However, accused is directed to furnish bail bond in the sum of Rs.20,000/ with one surety in the like amount in terms of section 437A Cr.PC on 050911.
(R. Kiran Nath) ASJ01/Saket Court 30082011 FIR No. : 61/10 Page no. 19 State Vs Suraj Kumar Bisht FIR no.61/10 PSSarojini Nagar 05092011 Present: Ld. Addl. PP for the State.
Accused is present along with counsel. Bail bond u/s 437A Cr.PC furnished by the accused and accepted.
File be consigned to record room.
(R. Kiran Nath)
ASJ01/Saket Court
05092011
FIR No. : 61/10 Page no. 20