Delhi District Court
Addl. Sessions Judge06 vs Firtu Lal @ Pintu S/O Sh. Thakur Prasad on 31 March, 2018
IN THE COURT OF DR. ARCHANA SINHA
ADDL. SESSIONS JUDGE06, WEST
TIS HAZARI COURTS, DELHI
State Case UID No.................................... 57658/16
SC No. 01/17
Old SC No. 204/14
FIR No. 246/14
PS Anand Parbat
U/S: 363/366/376 IPC &
6 POCSO Act
State
Versus
Firtu Lal @ Pintu S/o Sh. Thakur Prasad,
R/o village Upadhyapur, PS Sarptaha,
Distt. Jaunpur, U.P
Date of institution : 16.09.2014
Judgment reserved on : 24.03.2018
Judgment delivered on : 31.03.2018
ORDER/JUDGMENT: Accused is acquitted for the charges punishable
U/s. 363/366 IPC & u/s 6 of POCSO Act or in alternative
u/s 376 IPC
J U D G M E N T
1. Briefly stated, the allegations raised against the accused, as per the
prosecution, are that on 09.06.2014 at about 8 PM at H. No. F125, near
Nepali Mandir, Baljeet Nagar, Anand Parbat, Delhi, within the jurisdiction of
PS Anand Parbat, Delhi, the accused Firtu Lal @ Pintu had kidnapped one
Ms. A (assumed name, real name concealed), a minor girl aged about 17
years ( DOB 22.11.1997) and compelled her to marry against her will, to
force her to commit illicit intercourse with the accused and further that the
accused repeatedly committed aggravated penetrative sexual assault and
UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 1
raped her without her consent, thereby he had committed the offences
punishable u/s 363/366/376 IPC & 6 of POCSO Act.
2. On completion of investigation, the chargesheet was filed against the
accused for the offences punishable under section 363/366/376 IPC & sec.
6 of the POCSO Act and the case was sent for trial.
3. Vide order dated 19022015, the charges against the accused for the
offences punishable under section 363/366/376 IPC & sec. 6 of the
POCSO Act were framed, to which he had pleaded not guilty and claimed
trial. Thus, the trial has commenced.
4. To establish its case, the prosecution has examined a total number of
following 5 witnesses:
a) The complainant/public witness:
• Ms. A, the prosecutrix/victim, PW1 & Mr. AKO, the father of the prosecutrix,
PW2, who are the material witnesses produced by the prosecution to prove
the allegations leveled against the accused.
During the examination of the prosecutrix/victim, she has exhibited her MLC Ex.
PW1/A and PW2 has exhibited his complaint Ex. PW2/A.
b) Police Witnesses:
• Inspector Darshan Lal, PW3 to prove the DD No. 6 & 8 dated 23072014
Ex. PW3/A & PW3/B, the true translation copy of the said DDs are Ex. PW3/C
& PW3/D.
This witness was the formal witness who came to prove the documents on
record.
UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 2
Whereas
• SI Vikram Singh, PW4,
• W/ASI Kiran Sethi, PW5,
These were the witnesses of investigation at different stages and they had
come to the witness box to prove their roles played by them during the course
of investigation and they had exhibited the documents viz.,endorsement on
rukka Ex. PW4/A.
c) Documents not disputed u/s 294 Cr.PC:
1. FIR No. 246/14 running into 3 pages under the signature of DO HC Mukesh
Meena at point A, the same Ex. PX1 ( Colly)
Endorsement on the rukka Ex. PX2 and it bears the signature of HC Mukesh
Meena at point A & Certificate u/s 65B Indian Evidence Act Ex.PX3 and it
bears the signature of HC Mukesh Meena at point A.
2. The seizure memo dated 29.07.2014 regarding seizure of blood of accused
Ex. PX4.
3. Recovery memo dated 23072011 of Victim under the Signature of SI
Vikram Singh Ex. PX5.
4. Site plan dated 23072011 under the signature of SI Vikarm Singh Ex. PX6.
5. The contents of the MLC of the prosecutrix Ms. A in the handwriting and
signatures of Dr. Pooja, Dr. Sweta & Dr. Nitin already Ex. PW1/A.
6. The contents of the MLC of the accused under the signature of Dr. Sunny
Bhairwan Ex. PX7.
7. The contents of the two MLCs of the accused under the signature of Dr. Devi
Singh Ex. PX8 & PX9.
8. The contents of the MLC of the accused under the signature of Dr. Deepak
Verma and Dr. Arun regarding potency Ex. PX10.
9. Proceeding/Statement u/s 164 Cr.PC of prosecutrix recorded by Ld. MM Ms.
Aditi Garg Ex. PX11 ( colly. 4 pages).
10. The arrest memo, personal search memo of the accused Ex. PX12 & PX13
respectively.
UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 3
11. The proceeding of Missing Report running into 4 pages Ex. PX14 (Colly).
12. The notice u/s 91 Cr.PC dated 07082014 under the signature of ASI
Kiran Sethi Ex. PX 15.
13. The School Certificate dated 13082014 under the signature of Vice
Principal of GGSSS Prem Nagar, New Delhi Ex. PX16.
14. Cumulative record of the prosecutrix issued from the School GGSSS
Prem Nagar, New Delhi, Mark Sheet of class 10 & Certificate Ex. PX17 (Colly).
15. The counseling report of counselor of NGO Sangeeta Verma Ex. PX18.
5. The incriminating evidence & circumstances were put to the accused
under Section 313 Cr.PC., wherein he refuted all the allegations leveled
against him and had pleaded his innocence & false implication at the
instance of father of the prosecutrix but he did not lead any defence
evidence in support of his plea of innocence.
6. Ld. Addl. PP for the State has submitted that the hostility of the
prosecutrix is of no consequence as the prosecutrix was not able to
exercise her consent being minor and as per testimony of PW1, the
allegations of kidnapping as well as penetrative sexual assault have been
proved by the prosecution.
7. Further that the prosecutrix in this case is a minor, as her date of birth
is 22111997, as per school record and the provisions of POCSO Act are
attracted, it is a settled proposition of law, in view of the provisions of
section 29 and 30 of POCSO Act that in case one person is prosecuted for
committing, abetting, attempting to commit any offence u/s 3,5, 7 & 9 of
this Act, the court shall presume that such person has done so, unless
contrary is proved.
UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 4
8. Sh. Upendra Singh, Ld. Counsel for the accused has submitted that
the accused Firtu Lal @ Pintu has been falsely implicated by the police at
the instance of father of the prosecutrix and that there is no evidence
against the accused to prove that he had kidnapped the prosecutrix or he
had penetrative sexual assault upon her against her will as the prosecutrix
has not supported the prosecution case in her versions either given U/s
164 Cr.P.C. or in her testimony in the Court.
Also that her father, the complainant who was examined as PW2, had
not disclosed any incriminating evidence against the accused except to
prove his complaint regarding 'missing' of her daughter on the relevant,
date, time and place.
Further that the prosecutrix herself has stated that she had left her
house on her own and solemnized her marriage with the accused and that
both are leading their happy married life and that she had her two children
out of such wedlock.
Thus, it is prayed that the accused is entitled for the benefit of doubt.
9. To counter the contentions of the State regarding the presumption u/s
29 & 30 of the POCSO Act, it is submitted that the presumptions are in the
form of presumptions as prescribed under section 113B of Indian Evidence
Act pertaining to an offence u/s 304B IPC, and as per the settled
proposition of law, despite the presumption laid against the accused & in
favour of the prosecution, the prosecution had to prove its case beyond
reasonable doubt and it has to stand on its own leg to seek conviction
against the accused because as per the criminal jurisprudence, it is not the
preponderance of probability but theory of standard proof that is required
for holding a person guilty only if the case of the prosecution is proved
UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 5
against the accused beyond reasonable doubt by the prosecution.
Further that both the offences U/s 363 IPC and 366 IPC cannot be
levied against the accused as either the prosecution puts its case that she
was a minor girl or a woman who attained age of majority when she was
allegedly kidnapped and also for proving either of the two offences, the
prosecution had to prove the factum of kidnapping of such girl or women
out of the lawful guardianship of the girl. In this case the prosecutrix has
herself testified that she was not a minor girl at the time she left her house
for getting married with the boy and she had solemnized her marriage in
the Court by a legal person and believing that she was a married woman
she maintained her relations with her husband/accused. Thus, it was
submitted that none of the offences alleged against the accused are
established on record. Also that as per the evidence produced on record
the prosecution has not proved as to what was the exact date of birth of
the prosecutrix as there were material discrepancies regarding her age in
the ocular as well as documentary evidence produced by the prosecution
that creates a doubt about her age and if the prosecutrix is believed for her
testimony then she was not a minor girl and was able to exercise her
consent for solemnizing her marriage and if her testimony is discarded
then there is no evidence to prove that she was kidnapped or that the
accused had physical relations with her. Thus, it was prayed that the
accused may be given a benefit of doubt.
10. I have perused the evidence consisting of ocular as well as
documentary evidence available on record meticulously, in the light of
contentions of Ld. Addl. PP for the State and Sh. Upendra Singh, Ld.
Counsel for the accused.
UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 6
11. The prosecution must establish the following ingredients, in order to
establish its case for the offences under section 363/366 IPC & 6 of
POCSO Act, or in alternative u/s 376 IPC alleged against the accused
namely Firtu Lal @ Pintu :
For offences punishable under section 363 IPC that
i) the prosecutrix in question was minor at the time of offence committed in
India.
ii) that the accused has taken or enticed the prosecutrix, who was minor under
the age of 17 years of age, out of the keeping of the lawful guardian.
iii) that he did so without the consent of that lawful guardian, or of some person
legally authorized to give consent on that person's behalf.
For offences punishable under section 366 IPC
i) the prosecutrix in question was minor at the time of offence in India.
ii) that the accused has taken or enticed the prosecutrix, who was minor under
the age of 17 years of age, with intention to force her to illicit intercourse.
Further for offences punishable under section 6 of POCSO Act
i) that the accused had committed aggravated penetrative sexual assault
upon the victim
12. What act of the accused constitutes Penetrative sexual assault is
prescribed U/s 3 of the POCSO Act that reads as under :
3. Penetrative sexual assault : A person is said to commit "penetrative
sexual assault" if--
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child
or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the
vagina, the urethra or anus of the child or makes the child to do so with him or any other
person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the
vagina, urethra, anus or any part of body of the child or makes the child to do so with
him or any other person or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to
do so to such person or any other person.
13. Also that the penetrative sexual assault would be said as 'aggravated'
UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 7
penetrative sexual assault if it falls within the categories described u/s 5 of
the Act the relevant extracts of the provision of Section 5 of the Act is
extracted below :
5. Aggravated penetrative sexual assault :
(a) ...........
......
......
(l) whoever commits penetrative sexual assault on the child more than once or repeatedly; or ......
said to commit aggravated penetrative sexual assault.
And in alternative, For offences punishable under section 376 IPC
i) that the accused had sexual intercourse with the prosecutrix;
ii) that the act was done under circumstances falling under the description specified in section 375'
iii) that such woman was not the wife of the accused, or, if she was his wife, she was under fifteen years of age.
14. As per the prosecution story, on 09.06.2014 at about 8.00 pm, the accused had taken/enticed away Ms. A, from her House No. F125, near Nepali Mandir, Baljeet Nagar, Anand Parbat, Delhi from the custody of her lawful guardian and compelled her to marry against her will, to force her to commit illicit intercourse and had repeatedly committed aggravated penetrative sexual assault and raped her without her consent & had committed penetrative sexual assault, thereby he had committed the offences punishable u/s 363/366 IPC & 6 of POCSO Act or in alternative u/s 376 IPC.
15. On careful perusal of the evidence on record, it is observed that the entire prosecution case was based on the testimony of the prosecutrix UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 8 'A', examined as PW1 as she was the only star & material witness of the prosecution, being the prosecutrix, who could describe about the incident or could prove the allegations against the accused for the offences alleged.
16. Mr. 'AKO', the father of the prosecutrix, examined as PW2, but he could only prove his complaint Ex.PW2/A establishing only one fact that his daughter Ms. A was missing since 09.06.2014 and he searched everywhere also that he had placed his doubt on one Pintu who was residing in his house and was also not traceable since the day his daughter was missing and that he might have enticed her away requesting the police to trace her. In the Court as PW2, he has testified that on 23.07.2014 he alongwith police officials had gone to Ludhiana and her daughter was recovered from the house.
17. He has produced the school record showing that the date of birth of her daughter was 22.11.1997 and denied the suggestions that her date of birth was 22.11.1994 instead of 22.11.1997.
18. On appraisal of the evidence of PW2, the father of the prosecutrix, it is observed that as per his complaint Ex.PW2/A, the age of his daughter was 15½ years on 09.06.2014 when she was missing from his house. As per school record produced by PW2, the certificate Ex.PX16 that shows the date of birth of his daughter as 22.11.1997, makes her age on 09.06.2014 as 17½ years.
UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 919. The date of birth recorded in the school record of the prosecutrix was informed by her father and no basis has been produced on record on which such date of birth was recorded in her school. Both the documents Ex.PW2/A and Ex.PX 16, if read together with the ocular evidence of PW2 had a difference of two years in the age of the prosecutrix.
20. The prosecutrix, the daughter of PW2, when examined in the Court as PW1 has testified her age as 23 & 24 years on 15.11.2017, the date on which she was examined. She has deposed that her date of birth was 22.11.1994 and in her school record it was mentioned as 22.11.1997 as she was suffering from illness in her childhood and she was admitted in the school late and that is why her father got recorded her date of birth as 22.11.1997 whereas her correct date of birth is 22.11.1994.
21. On these aspect PW1 remained firm during her cross examination by the state and denied the suggestions that her correct date of birth was 22.11.1997. A document Mark A i.e. 'Vaivahik Ekrarnama Patra' is placed on record and was put to the Investigating Officer (IO) during her examination as PW5 who had admitted that such document was produced during investigation and photocopy of such document was a part of police file. On admitting such document, Mark A, it becomes admissible in evidence in view of law settled in Sudhir Engineering Vs. Nitco Roadways cited as 1995 RLR 286, wherein it is observed that "any document filed by either party passes through three stages before it is held proved or disproved.
These are :
UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 10First Stage : When the documents are filed by either party in the court; these documents though on file, do not become part of the judicial record;
Second Stage : when the documents are tendered or produced in evidence by a party and the court admits the documents in evidence. A document admitted in evidence becomes a part of the judicial record of the case and constitutes evidence ;
Third stage : the documents which are held proved, not proved or disproved, when the court is called upon to apply its judicial mind by reference to section 3 of the Evidence Act. Usually this stage arrives at the final hearing of the suit or proceeding."
22. It is observed that this 'Vaivahik Ekrarnama Patra' is duly signed by the prosecutrix Ms. A who has referred this document as document of her court marriage in her testimony as PW1 when she deposed that on 11.06.2014 she got married with accused on her own Volition at District Sultanpur, U.P. And was taken in one court for court marriage and there the lawyer prepared certain papers which they were made to sign and that was called as court marriage that had taken place in the presence of the family members of the accused and that after that her marriage was also solemnized as per Hindu rites in a Temple. As per document 'Vaivahik Ekrarnama Patra' Mark A, the age of prosecutrix shown as 22 years and as per her testimony her date of birth was 22.11.1994 and not 22.11.1997 as recorded in her school.
23. The age of the prosecutrix was disputed by the prosecutrix and the accused during the course of investigation before the IO and even the document i.e. 'Vaivahik Ekrarnama Patra' as certificate of court marriage was produced by them to the IO and as per the testimony of IO, she was satisfied with the victim's version about her date of birth as 22.11.1994 but UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 11 she did not get the bone age test of the prosecutrix during investigation to determine the actual age of the prosecutrix despite the fact that she was tendered the marriage document by the prosecutrix.
24. She had collected documents of the date of birth mentioned in the school record but did not get any document from the school authorities to show on what basis such date of birth was recorded.
25. It was an abundant duty on the part of the investigating agency to determine the age of the prosecutrix before proceeding further within the provisions of POCSO Act as such provisions of the Act could be attracted only in case the victim / prosecutrix was minor under the age of 18 years.
26. At that time she had a complaint of her father that mentioned her age as 15½ years and a school record that mentioned her date of birth as 22.11.1997 i.e. calculating her age as 17½ years and the prosecutrix produced another document i.e. 'Vaivahik Ekrarnama Patra' mentioning her age as 22 years in 2014, in that state of affairs the determination of age of the prosecutrix was to be investigated / determined before proceeding further with the investigation of the matter particularly when the provisions of POCSO were attracted but these facts were ignored by the investigating agency that shows that even the investigation of the matter was not proper.
27. On appreciation of evidence of the prosecutrix Ms. 'A' as PW1, it is observed that she has not supported the case of the prosecution in her testimony either on the aspects of her age of majority as alleged by the UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 12 prosecution that she was minor during occurrence or on the aspects of her kidnapping as she has deposed that she left her house on her own and that she was not taken away or enticed away by the accused or on the aspect of any forcible physical relations as maintained by her with accused believing that the accused was her husband as she had already solemnized her marriage in the court as well as according to Hindu rites and rituals in the Temple. She has absolutely not supported the case of penetrative sexual assault ever committed upon her by the accused.
28. The relevant extract of her testimony is given below:
I am now aged about 2324 years. I was born in the year, 1994 as told by my parents. My date of birth is 22.11.1994 but as per my school record it is mentioned as 22.11.1997. I used to suffer illness and that is why I was admitted in the school late and my father got recorded my date of birth as 22.11.1997 but by correct date of birth is 22.11.1994 and my father knew this at the time of recording of my date of birth in the school.
.....
I was studying continuously in Nagar Nigam Kanya Vidhyalaya, Prem Nagar and also in other schools and my date of birth recorded there is 22.11.1997. I had passed 10th class from Om Senior Secondary School Delha Chilma Bazar Basti, at the time I left my parental house for marriage with accused Firtu.
The incident is about the year of 2014 and at that time I was about 1819 years old when the present case was registered on the complaint of my father.
I used to like Firtu @ Pintu Pal and he used to like me and I got married on 11062014 with him on my own volition and will at his native place i.e. Village Upadhyapur, Distt. Sultanpur, U.P. We were taken to one court for court marriage. Again said, it was a lawyers chamber, may be his office or house. The lawyer prepared certain papers and we were made to sign and that was called as court marriage. It had taken place in the presence of the family members of Firtu @ Pintu Pal. Also our marriage was solemnized as per Hindu Rites in a Temple. The marriage had taken place either on 10th or 11th.
I was residing with Firtu @ Pintu Pal in his family as husband and wife in U.P. There we stayed for 1520 days. From there we had left for Ludhiyana. I do not remember the exact date when we left for Ludhiyana but I can say that we had stayed in all for one and half months together, firstly for 1520 days in his village in U.P. and for other period in Ludhiyana.
UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 13From there my father came with police and on 23072014, we were taken back to Delhi.
I had been taken to the hospital where I was medically examined. The doctor asked me about my internal examination. My urine was tested and as I was pregnant as per such test, my gynecological examination was not conducted due to my pregnancy.
.......
......
Accused Firtu is my husband and had been arrested at the instance of the complaint of my father and I want to stay with my husband accused Firtu and I have two children namely Keshav (son, 3 years) & Prachi ( daughter, 1 year) out of wedlock.
I do not want any action against my husband as I want to stay with him. I do not want to comment anything regarding the complaint made by my father as I had gone with accused Firtu on my own free will and consent and got married with him and have two children out of that wedlock. My father did whatever he thought correct.
.....
.....
I pray that my husband may be acquitted as he has not committed any offence. I want the case to be closed as my husband has not committed any wrong with me.
29. On her being hostile, the PW1 was crossexamined on behalf of the State and she had deposed that, It is wrong to suggest that at the time of going away with accused Firtu @ Pintu Pal, I was fifteen and half year old and not 1819 as stated by me today in the court.
It is further wrong to suggest that my correct date of birth is 22111997 which is recorded in my school record including matriculation certificate of 10th class.
It is wrong to suggest that I have given wrong date of birth today in order to save accused Firtu.
It is correct that I was in deep love with accused Firtu and still loves him.
It is wrong to suggest that I am giving my wrong date of birth claiming to be major at the time of incident only in order to save the accused Firtu with whom I am staying as wife and mother of his two children.
30. From the testimony of the prosecutrix, it is clear that she has left her UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 14 house on her own and she was not taken or enticed away by the accused to prove the ingredients of kidnapping from her lawful guardianship. Also she has not supported that the accused had taken her away with intention to force her for illicit relations with the accused. Rather, she had deposed contrary facts that she had solemnized her marriage in the court as well as according to Hindu rites and rituals with the accused and had maintained her relations with the accused as his legally wedded wife and have two children out of such wedlock. She has also clarified that her date of birth was 22.11.1994 and not 22.11.1997.
31. From the material placed on record, the prosecution neither produce any cogent evidence to prove that the prosecutrix was taken away or enticed away by the accused at the relevant day, time and place, nor it could be proved that she was taken away or kidnapped by the accused with the intention to force her for illicit relation with him.
32. Thus, the basic ingredients of the offences U/s 363 or even U/s 366 IPC could not be proved on record by the prosecution beyond reasonable doubt.
33. Thus, due to hostility of the prosecutrix, the prosecution could not prove its case for the offences U/s 363/366 IPC.
34. For proving the charges for the offence punishable u/s 6 of POCSO Act, the prosecution had to prove that the accused had committed aggravated penetrative sexual assault as prescribed u/s 3 r/w 5 of the POCSO Act.
UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 1535. For proving the charges for the offence punishable u/s 6 of POCSO Act, the prosecution is relying only on the testimony of the prosecutrix Ms. A examined as PW1.
36. On appreciation of the evidence of the prosecutrix Ms. A, examined as PW1, it is observed that the prosecutrix has neither supported the prosecution case on the point of her age, as per her date of birth as 2211 1997 recorded in her school records nor on the point of allegations of any aggravated penetrative sexual assault committed by the accused against her wish.
37. She has deposed that she has solemnized her marriage on 11062014 with the accused on her own volition at U.P. and it was a court marriage and that after her court marriage she has solemnized her marriage according to Hindu rites, in a temple.
38. As per record, there is a document i.e. Marriage Ikrarnama Patra Mark A, executed before Sh. Dinesh Kumar Sharma, the Gazzeted Notary, notarized as Notary (Govt. of India) Jaunpur, U.P. duly signed by prosecutrix Ms. A and accused Firtu and the same was executed on 1406 2014.
39. As per evidence of the prosecution, this document was put to the IO, PW5 during her crossexamination and she has admitted that such document in photocopy was produced by the prosecutrix and it was part of police file. It is surprised that the Investigating Officer did not place the original document on judicial record and even the photocopy of the same UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 16 was placed only with the police file and no averments were made in this regard in her chargesheet filed before the court.
40. On the aspect of age of the prosecutrix, the IO has denied the suggestions that she did not get conducted the bone age examination of the prosecutrix as she was satisfied that the victim's version of her date of birth as 22111994.
41. On the aspect of her marriage solemnized on 11062014, the testimony of PW1 remained unimpeached during her course of cross examination either by State or by accused.
42. It is further observed that the prosecutrix has not supported the case of any physical penetrative sexual assault by the accused against her will rather she has deposed contrary facts that after solemnizing of court marriage and the marriage in the temple, which had taken place on 1106 2014, she was residing with the accused as husband and wife in his family in U.P where they had stayed for 1520 days and then left for Ludhiyana, where accused was working in some factory and that in all for one and half month together, they stayed for 1520 days in the village at U.P. and for other period in Ludhiyana. Also that only on the complaint of his father made on 09062014, they were taken back to Delhi.
43. She has further deposed that the accused is her husband who was arrested at the instance of her father and she wants to stay with her husband and that she has two children namely Keshav, the son of 3 years and Prachi, the daughter of 1 year, out of such wedlock.
UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 1744. Thus, it is established on record that the prosecutrix has left her house on her own, as she has attained the age of majority to exercise her consent and she had solemnized the court marriage in U.P. vide Ikrarnama Mark A, duly signed by both the parties and that she was residing with the accused as husband and wife and she has two children out of such wedlock.
45. The case of the prosecution is that the girl/prosecutrix was minor at the time of her leaving her house as she was under the age of 18 years as her date of birth was 22111997, as per her school record.
46. The prosecutrix has denied the factum of her age stating that her actual age is 22111994 and her father had got recorded her date of birth as 22111997 as she used to remain ill at that time and was admitted at the late age and for the purpose of taking admission her date of birth was recorded three years less than to her actual age by her father recording her date of birth as 22.11.1997 instead of 22.11.1994.
47. Ld. Counsel for the accused has raised the contention that her father intentionally has not produced her Aadhar Card and Election I Card though these were also got prepared but were concealed by her father because it was not suiting to the fabric of his complaint and he withheld it from the court.
These documents were withheld by her father so that he could pursue his complaint of kidnapping and of offences under POCSO Act though he knew that her date of birth was 22111994.
UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 1848. It is observed that on the aspect of her age, the evidence on record has a material discrepancies and contradictions.
49. As per the complaint of complainant Ex. PW 2/A of her father, her age is mentioned as 15½ years, as per her school record Ex.PX17, her age is mentioned as 17½ years and as per counseling report of NGO Ex. PX18, it was reported as 17 years, whereas, in the statement of the prosecutrix recorded before the Ld. MM u/s 164 Cr.PC, it is reported as 17½ years whereas as per her marriage documents Mark A, duly notarized by Notary of U.P., it is recorded as 22 years in the year 2014 and as per the ocular evidence of PW1, the prosecutrix her age was 2324 years on 15.11.2017 and her date of birth was 22.11.1994.
50. The best evidence could be the Aadhar Card / Election I Card of the prosecutrix, but these documents were not produced on record either by the prosecution or by the father of the prosecutrix.
51. Despite the dispute of age of the prosecutrix raised during the course of investigation through the two set of documents of her age, IO did not get the age of prosecutrix determened through the scientific investigation i.e. the bone age ossification test. However, these facts of producing of two set of documents mentioning two set of dates of the birth of the prosecutrix are not disputed.
52. Thus, two records have been placed during trial for the age of the prosecutrix, one was making her major of more than 18 years at the time of alleged occurrence and the other was of the age of 17½ years as per school record.
UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 1953. It is observed that there are discrepancies regarding the age of prosecutrix. The IO should get conducted the bone age ossification test of the prosecutrix for establishing the age of the prosecutrix, but the IO despite admitting that the prosecutrix had produced the Vaivahik Ikrarnama Mark A to the IO, during investigation, on which the age of prosecutrix is shown as 22 years, she did not get conducted the bone age examination to get determine the age of the prosecutrix.
54. Thus, there were clearly two set of evidence / material about the age of the prosecutrix and it is well settled proposition of law as settled in case titled as Chidda Ram Vs. State cited as 1992 (2) Crimes 1140, that, In case of two dates if one is making her minor and another major, then the date favourable to the accused should be considered.
55. Thus, the age of the prosecutrix in view of her depositions and as per her marriage certificate, is considered according to which she had attained the age of majority i.e. the age more than 18 years, at the time of leaving her house and even at the time of solemnization of her marriage with the accused in the court as well as according to Hindu rites and custody in a temple.
56. As per the testimony of prosecutrix she has left her house on her own out of her own volition and accused had not taken her away nor enticed her, in any manner.
Further, she has solemnized her marriage out of her own volition and on executing her Vaivahik Ikrarnama at U.P. on 14062014, she was told UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 20 by legal person that it was a certificate of court marriage and considering her little literacy and a common man's knowledge, she was believing that that it was a court marriage and after that she has solemnized her marriage according to Hindu rites and rituals in a Temple and maintained physical relations with the accused as husband and wife and she had two children out of such wedlock.
57. Further, she has not supported the case of any physical assault or penetrative sexual assault upon her by the accused to whom she treated as her husband. Her solemnization of marriage as per such Vaivahik Ikrarnama which she was told by a legal person as a court marriage and again her marriage in temple as per Hindu rites, the factum of marriage is also proved.
58. Thus, neither the case of kidnapping nor the case of any penetrative sexual assault as described in section 3 of the POCSO Act punishable u/s 4 of the Act have not been proved by the prosecution, in any manner or even in alternative u/s 376 IPC as her relations were consensual & only after her valid marriage.
59. Thus, in the abovenoted facts and circumstances on appreciation of the entire evidence on record, it is observed that the prosecution has miserably failed to prove the basic ingredients above mentioned for proving the offences under section 363/366 IPC & section 6 of POCSO Act or in alternative u/s 376 IPC against the accused Firtu Lal @ Pintu, beyond reasonable doubt.
UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 2160. Thus, a benefit of doubt is given to the accused namely Firtu Lal @ Pintu on the basis of abovenoted facts and circumstances.
61. Consequently, the accused namely Firtu Lal @ Pintu is acquitted of the offences under section 363/366 IPC & section 6 of POCSO Act or in alternative u/s 376 IPC. ARCHANA Digitally signed by ARCHANA SINHA SINHA Date: 2018.04.05 16:50:38 +0530 Announced in the open Court (Dr. Archana Sinha) th on this 31 day of March 2018 Addl. Sessions Judge06,West Tis Hazari Courts, Delhi 31.03.2018 UID No. 57658/16 FIR No. 246/14 PS. Anand Parbat State Vs. Firtu Lal @ Pintu Page No. 22