Delhi District Court
State vs . Surender Paswan S/O Sakal Paswan, on 6 March, 2014
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 171/13
Unique Case ID No.02405R0215002013
State Vs. Surender Paswan s/o Sakal Paswan,
R/o Village Bhalwa, PS Belaganj,
Distt. Gaya Bihar.
Date of Institution :25.07.2013
FIR No.1142/2000 dated 18.12.2000.
U/s. 363/366/376 IPC
P.S. Dabri.
Date of reserving judgment/Order :28.02.2014.
Date of pronouncement :06.03.2014.
JUDGMENT
1. The prosecution had filed charge sheet against accused in the year 2000 for the offences punishable u/s 363/366/376 IPC
2. It is the case of prosecution that the prosecutrix namely 'S' (real name has been withheld in order to conceal her identity) who was aged about 15 years and studying in Sarvodya Kanya Vidyalaya, New Delhi in 8th standard, had gone missing from her house at 10 pm on 18.12.2000. The information about her disappearance was given to the Police Station by her father during the night at about 2 am regarding which DD No. 4A had been recorded. DD was entrusted to SI R.A. Prasad for suitable action. SI SC No.171/13 Page 1 of 10 R.A. Prasad recorded the statement of the complainant Uma Shankar Tiwari on 20.12.2000 wherein he stated that his daughter has been allured away by Surinder Paswan who had been residing as a tenant in his house about one month before. On the basis of the said statement of the complainant, FIR was got registered u/s 363 IPC and the investigation was commenced by SI R.A. Prasad. During the course of investigation, the prosecutrix 'S' was recovered from the house of accused Surinder Paswan in his native village, Matua, District Gaya, Bihar. The prosecutrix was got medically examined. Her statement u/s 161 Cr.P.C. was recorded by the IO and on the basis of her statement, Section 366 and Section 376 IPC were added to the FIR. Exhibits given by the doctor after her medical examination were sent to the FSL. The accused could not be arrested as he had absconded. He did not appear in the court even after publication of proclamation u/s 82 Cr.PC. against him and ultimately he was declared proclaimed Offender.
3. Accordingly, charge sheet was filed without arresting the accused. Upon committal of the case to the Court of Sessions, evidence was recorded u/s 299 Cr.P.C. as the accused had been declared PO. Ld. MM, who had recorded the statement u/s 164 Cr.P.C. of the prosecutrix, was examined as PW1. Doctor who had conducted medical examination of the prosecutrix was examined as PW-2. The prosecutrix was examined as PW3 and her father was examined as PW4. Thereafter the file was cosigned to Record Room.
4. Ultimately the accused came to be arrested on SC No.171/13 Page 2 of 10 24.7.2013 from Badli Indl. Area, New Delhi u/s. 41(1)(c). Information about his arrest was given to PS Dabri. He was got medically examined and was produced before the concerned ld. MM. The case file was recalled form the record room and the case was re-opened. The case was committed to the Court of Sessions. On 5.9.2013, charge u/s 363 IPC, u/s 366 IPC, u/s 376 IPC and u/s 174 A IPC were framed against the accused. The accused claimed not guilty to the said charge and accordingly the trial was held. The prosecution has examined 10 witnesses to prove charges against the accused. The accused was examined u/s 313 Cr.P.C. on 31.1.2014 wherein he admitted that he had taken the prosecutrix alongwith him on 18.12.2000 to his native village but denied that he had committed forcible sexual intercourse with her. He further stated that the prosecutrix had told him that she is 18 years of age. He further stated that the prosecutrix had accompanied him voluntarily and had willingly consented to the sexual intercourse with him. According to him the prosecutrix was staying with him of her own will and wish.
5. I have heard ld. APP, ld. Counsel for accused and have perused the entire material on record.
6. PW1 has proved the school record of the prosecutrix, which shows her date of birth as 08.6.1996. He has not been cross examined on behalf of the accused. The school record, thus, indicates that the prosecutrix was only 14 years old on 18.12.2000 when she was taken away by the accused. The prosecutrix appearing as PW4 has stated that she was just 15 years old when she was taken away by the accused on 18.12.2000. She has not SC No.171/13 Page 3 of 10 been cross examined on this aspect of her testimony. Nothing has been brought to my notice from the record by the Ld. Counsel for the accused which would suggest that the prosecutrix was more than 16 years of age on 18.12.2000. Therefore, it is evident that the prosecutrix was less than 16 years of age on the date of incident i.e. 18.12.2000 when she was taken away by the accused.
7. The prosecutrix 'S' has been examined as PW4. He deposed that in the year 2000, she was 15 years old and accused resided in their neighbourhod in Shiv Puri, West Sagarpur, New Delhi. Accordingly, she knew him. She further deposed that on 18.12.2000 her parents had scolded her for some reason. Accused met her and asked her to accompany him. He assured her that he would keep her properly. Accordingly, she accompanied the accused and he took her to the house of his sister in a village in District Gaya, Bihar. She did not feel comfortable in that house and insisted upon the accused to take her back home. However, the accused threatened her to keep quiet, otherwise, she would be killed. Accused kept her there for about one week and then took her to the house of his brother where she was kept confined inside the house. After three days, police officials reached there alongwith her father and she was recovered and was brought to Delhi. She further deposed that during her stay with the accused in Gaya, the accused committed sexual intercourse with her almost daily and when she refused to oblige her, he threatened her that he would kill her. She also deposed that on being brought to Delhi, she was got medically examined in DDU Hospital. She was also produced before a Ld. Magistrate, who recorded her statement Ex.PW4/A. In the cross examination, she deposed that SC No.171/13 Page 4 of 10 on 18.12.2000, she had left her house alone at about 12 midnight. Her parents were sleeping at that time and she did not inform anybody that she is going. She further deposed that the accused had physical relations with her for the first time in the house of his sister at Gaya. According to her further deposition, her father was present outside the court when the Ld. Magistrate recorded her statement Ex.PW4/A. She admitted that on that day neither accused nor any of his family members was present in the court. She had come to the court from her house alongwith her father. She also admitted that neither accused nor any of his family members met her since 31.12.2000 when she was recovered by the police officials from the house of accused's brother till the date she was produced before the Ld. Magistrate, who recorded her statement. The Ld. Magistrate had asked her whether she was under any threat or pressure and she replied in negative. She further deposed that she had given statement to the Ld. Magistrate voluntarily and without any threat or pressure. She admitted that she had not stated in her statement to the Ld. Magistrate that she was enticed away by the accused, forcibly confined at Gaya and raped by him.
8. PW6 was the Ld. M.M. at the relevant time when she recorded the statement u/s.164vCr.PC of the prosecutrix which is Ex.PW4/A.
9. At this juncture, it would be relevant to reproduce the statement u/s.164 Cr.PC of the prosecutrix Ex.PW4/A. Same is as under :
SC No.171/13 Page 5 of 10"I know Surender Paswan for the last 6/7 months. His friend Madan was a tenant under my father. Surender used to come and meet him. Slowly, we became acquainted with each other and the acquaintance blossomed into love relations between us. Madan vacated our house and Surender came to our house as a tenant. Surender resided in our house as a tenant for about one and a half months. During this time, my mother saw me once talking to Surender. She also saw us meeting each other. I wanted to marry Surender. When Surender was residing in our house we had husband wife relations with each other and my mother had caught us red handed when I had gone to the room of Surender. After Surender vacated our house, I compelled him to take me and hence he took me. I told Surender that I am pregnant. Surender took me with him in December, 2000 to Jahanabad, Bihar. I had gone to meet Surender myself at Mayapuri factory. From Delhi, we took bus upto Kanpur and thereafter we travelled by train upto Gaya. On reaching Gaya, Surender took me to the house of his Mausi and introduced me as his wife. We were about to marry each other on 02.1.2001. In Gaya also, we had physical relations with each other and it was with my consent. Thereafter my father and police officials brought me to Delhi. I was medically examined and then produced in the court. At that time, Surender was not present in the house. Now I want to go with my father, but I do not want that SC No.171/13 Page 6 of 10 Surender should be sent to jail. I want to marry him and he also wants to marry me."
10. It may be mentioned here that in her deposition recorded on 30.8.2005 u/s.299 Cr.PC also, the prosecutrix has stated that the accused had allured her with intention to marry her, took her to village Janakpur, Bihar and committed rape upon her.
11. It was submitted by Ld. APP that the prosecutrix was below 16 years of age on 18.12.2000 and she has consistently stated in her deposition recorded u/s.299 Cr.PC as well as in her testimony before this court that she was kidnapped by the accused by alluring her and then he committed rape upon her. She argued that the prosecutrix has been able to prove the charges u/s.363 IPC, u/s.366 IPC and u/s.376 IPC against the accused and the accused is liable to be acquitted.
12. On the other hand, Ld. Counsel for the accused submitted that the prosecutrix did not state anything against the accused and gave a clean chit in her statement u/s.164 Cr.PC Ex.PW4/A, which was recorded a couple of days after she had been recovered by the police officials in presence of her father and therefore, whatever she has stated therein is true and trustworthy. According to the Ld. Counsel, the prosecutrix has deposed falsely in court on both occasions on account of pressure of her family. He submits that the statement u/s.164 Cr.PC of the prosecutrix creates a doubt in the prosecution case and the benefit of doubt must go to the accused. He pleaded for acquittal of the accused.
SC No.171/13 Page 7 of 1013. As per the prosecution case itself, the prosecutrix had been taken by the accused on 18.12.2000 and was recovered from the custody of the accused on 31.12.2000 vide recovery memo Ex.PW5/A. On being brought to Delhi, she was produced before PW6, the Ld. M.M., who recorded her statement u/s.164 Cr.PC Ex.PW4/A, the contents of which have already been reproduced herein-above. The prosecutrix in her cross examination has admitted that after she was recovered by the police officials in presence of her father on 31.12.2000 neither accused nor any of his family members met her till the date when the Ld. Magistrate recorded her statement Ex.PW4/A. She also deposed that on that day, she had come to the court alongwith her father and neither accused nor any of his family members were present in the court at that time. This indicates that the prosecutrix had given statement to the Ld. M.M. voluntarily and on her will and volition. It may also be noted that the prosecutrix had been recovered from the house of accused in village Janakpur, District Jahanabad, Bihar, in his absence as he was not present there at that time. Thus there was no occasion for the accused to coerce or threaten the prosecutrix to give a statement in his favour to the Ld. Magistrate. It appears that the prosecutrix has given truthful version of the entire incident to the Ld. M.M. in the statement Ex.PW4/A. In view of the same, I consider that it would be doing violence to the rules of criminal justice to accept the testimony of the prosecutrix before this court as true and correct. The prosecutrix has herself deposed in cross examination that she gave statement to the Ld. M.M. voluntarily and without any threat or pressure. He has nowhere stated in her statement before this court that she had SC No.171/13 Page 8 of 10 given a false statement to the Ld. M.M. and her statement before this court is true and correct.
14. It is thus evident that the prosecutrix was neither allured by the accused to accompany him nor was forced or threatened by him to accompany him. Manifestly, the prosecutrix was in love with the accused and willingly accompanied him on 18.12.2000. This is also indicated by the fact that she had left her house at 12 midnight i.e. in the dead of night without informing her parents or anybody else at home. Therefore, the essentials ingredients of the offence u/s.363 IPC have not been established by the prosecution and the accused is liable to be acquitted of the same. It is also clear from the aforesaid discussion that there had been sexual intercourse between the accused and the prosecutrix during the time prosecutrix was with him and these were also consensual. But as noted herein-above, the prosecutrix was only 14 years of age at that time and hence her consent to the sexual intercourse with the accused was totally immaterial. Therefore, the sexual intercourse between the accused and the prosecutrix comes within the definition of offence of rape as provided u/s.375 IPC and the accused is liable to be convicted for the said offence.
15. Coming to the Charge u/s.174A IPC framed against the accused, it is the case of the prosecution that the accused evaded arrest during the course of investigation and did not appear in the court despite execution of process u/s.82 Cr.PC against him and ultimately, he was declared proclaimed offender. It appears from the record that after recording the statement of process server, the Ld. M.M. vide order dated 22.2.2002 declared the accused SC No.171/13 Page 9 of 10 proclaimed offender. It is also the case of the prosecution that the accused could be arrested as late as on 24.7.2013 u/s.41.1(c) Cr.PC and was put to trial in this case.
16. In order to establish the Charge u/s.174A IPC, it is obligatory for the prosecution to prove that the process u/s.82 Cr.PC was duly served upon the accused and he failed to appear before the court despite the knowledge of the said process. However, in the instant case, the prosecution has not examined the process server, who had gone to execute the process u/s.82 Cr.PC against the accused. There is no evidence on record to show that the process u/s.82 Cr.PC was duly executed against the accused and he was aware about the execution of such process against him. PW7 & PW8, examined by the prosecution, are only regarding the fact that he was arrested on 24.7.2013 u/s.41.1(c) Cr.PC vide Kalandra Ex.PW7/C. Therefore, I consider that the prosecution has failed to lead evidence to prove the charge u/s. 174A IPC against the accused. The accused is liable to be acquitted of the same.
17. Resultantly, the accused is acquitted of the Charge u/s.363 IPC, u/s.366 IPC and u/s.174A IPC. However, he is convicted for having committed the offence punishable u/s.376 IPC.
Announced in open (VIRENDER BHAT)
Court on 06.3.2014. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.171/13 Page 10 of 10