Delhi District Court
State vs Mahender Kumar @ Raja S/O. Ram Gopal, on 22 April, 2014
IN THE COURT OF SANJAY GARG : ADDITIONAL SESSIONS JUDGE01
(EAST) :KARKARDOOMA COURTS : DELHI
SC No. 39/12
FIR No. 394/12
PS Mandawali
Under Section : 328/363/366/376 IPC
State Versus Mahender Kumar @ Raja S/o. Ram Gopal,
R/o. E77, Jhuggi No. 452/C, Nehru Camp
Patparganj, Delhi.
Date of Institution of Case : 20.12.12
Date on which Judgment Reserved : 11.04.14
Date on which Judgment Delivered : 22.04.14
J U D G M E N T :
1. On 22.8.12 Hari Lal (PW4) visited PS and made a complaint that his daughter aged 15 years 8 months (hereinafter mentioned as prosecutrix) had gone to Rajkiya Sarvodya Kanya Vidhyalya, West Vinod Nagar but has not returned back. He showed suspicion on accused Mahender Kumar @ Raja stating that accused has kidnapped his daughter by giving her enticement. ASI Harphool Singh prepared rukka on this complaint and got the FIR registered u/s. 363 IPC. On 29.8.12 PW4 with police went to Ghaziabad in search of prosecutrix. Raju (PW9), who was known to accused called him at Dasna Bridge, Ghaziabad by making a call. Accused reached there with prosecutrix and was apprehended. Further investigation was done by SI Deepa (PW7), who arrested the accused. Both accused and prosecutrix were medically examined. Statement of prosecutrix was got recorded u/s. 164 CrPC . After investigation police filed chargesheet against the accused u/s. 363/366/328/376 IPC.
3. Charge u/s. 363/366/328/376 IPC was given to accused, to which he pleaded not guilty and claimed trial.
4. To prove its case prosecution has examined ten witnesses. PW1 Smt. Neelima Bhatnagar, Principal, MCD School produced FIR No. 394/12 page 1 of page 9 admission/withdrawal register containing date of birth of prosecutrix Ex.PW1/A. She also produced application form, affidavit and caste certificate of prosecutrix submitted in the school as Ex.PW1/B to Ex.PW1/D. Prosecutrix was examined as PW2, she admitted her signatures on her statement recorded u/s. 164 CrPC Ex.PW2/A. PW3 Sh. R.K. Singh, Nodal Officer proved CDRs, customer application form, cell ID chart and certificate u/s. 65B of Indian Evidence Act of mobile No. 9650077980 as Ex.PW3/A to Ex.PW3/D. PW4 Sh. Hari Lal is the complainant, he proved complaint Ex.PW4/A, arrest memo and personal search memo as Ex.PW4/B and Ex.PW4/C. PW5 HC Pramod Kumar is the duty officer, he proved FIR and rukka as Ex.PW5/A and Ex.PW5/B. PW6 Ct. Dinesh Kumar had taken the exhibits to FSL, Rohini and had deposited the same there. PW7 WSI Deepa is the IO, she proved disclosure statement of accused Ex.PW7/A, seizure memo Ex.PW7/B vide which exhibit given by doctor after medical examination of accused were taken into possession. PW8 Sh. D.K. Tyagi, Advocate, KKD Courts proved the affidavits signed by accused and prosecutrix as Ex.PW8/A and Ex.PW8/B. He also produced copy of the marriage deed produced by accused and prosecutrix as Ex.PW8/C. He also produces this register containing relevant entries as Ex.PW8/D. PW9 Raju is a friend of brother of accused. He had called accused by making call on 29.8.12 at Dasna Bridge from where he was apprehended with prosecutrix. PW10 Ms. Anita Chhari, SSO (Biology, FSL proved DNA report Ex.PW10/A.
5. Accused admitted MLC of prosecutrix and his MLC as Ex.PA1 and PA2 and his statement u/s. 294 CrPC was recorded to this effect.
6. On the basis of the incriminating evidence against the accused, his statement was recorded u/s. 313 CrPC wherein he denied the entire prosecution evidence against him and took the defence that prosecutrix wanted to marry him. Twothree times earlier she had told him that she wanted to marry him but her parents are not agreeing for this. On 22.8.12 from school at her own she went with him to Ghaziabad. Under the pressure FIR No. 394/12 page 2 of page 9 of her parents she made a false statement before this Court.
7. Heard arguments of Sh. Maqsood Ahmad, Ld. Addl. PP for State and Sh. Chandrakar Mishra, Ld. Defence counsel for accused. Perused the case file.
8. The Ld. Addl. PP submitted that prosecutrix was minor and she has specifically stated that she was kidnapped by the accused. It is stated that in her statement u/s. 164 CrPC prosecutrix has mentioned same facts as told by her before this Court. It is stated that though prosecutrix is refusing that accused established physical relations with her but her MLC and DNA report are establishing the physical relations between them. It is stated that recovery of prosecutrix from the possession of accused stands established from the statements of PW4, PW9 and IO.
9. On the other hand Ld. counsel Sh. Chandrakar Mishra for accused submitted that since prosecutrix has denied that no physical relations were established by accused with her, the DNA looses its significance. It is stated that prosecutrix has admitted that on the day of incident she had made a call to the accused in the market which establishes that she had gone herself with the accused. It is stated that prosecutrix had gone with accused in threewheeler and had stayed with him and had gone to KKD Courts without raising any alarm proves beyond doubt that she was consenting and had gone with her own free will. It is stated that PW4 (father of prosecutrix) has admitted that copy of the ration card mark PW4/X is his and there year of birth of prosecutrix is mentioned as 1994 which proves that she was major at the time of this incident.
10. Prosecutrix while deposing as PW2 has stated that on 22.08.12 at about 12.30 pm she came out of her school. Accused who lives in her neighborhood told her that her father is waiting for her. She accompanied accused in Auto. Accused was carrying a cold drink and gave it to her, she consumed it and thereafter fell unconscious. When she regained consciousness, she found herself in a room on a bed. She inquired from FIR No. 394/12 page 3 of page 9 accused about her father, accused told her that now she will stay with him and will not go any where. Accused further told that he will marry with her and threatened to kill her brothers in case she refused to marry him. Accused used to keep her in his house and made her do all his household works. On 25.08.12 accused took her to court and did court marriage there with her after giving her threat that otherwise he will kill her brothers. Same day, accused took her to a Temple and also did marriage there. On 29.08.12 her parents along with police reached there and they were brought to PS Mandawali. There police recorded her statement. She was produced in LBS Hospital and was medically examined. Thereafter she was produced before Ld. M.M and her statement under Section 164 CrPC was recorded. She identified her signatures on her statement Ex.PW2/A recorded by Sh. S.P.S. Laler, Ld. M.M. She was crossexamined by Ld. APP after declaring her hostile. During her crossexamination she admitted that accused had threatened to show her video to the public in case she did not marry with him, due to this reason she got scared and kept on staying with him. She admitted that on 29.08.12 in the noon time, friend of accused made a telephone call, since accused was not available there at that time, she picked up the phone and before she could speak, friend of accused stated "Raja Dasna Pull Par Mil Jana". When accused returned, she told him about this phone and accused asked her to get ready. She and accused reached at Dasna Pull at about 7.00 p.m and friend of accused also reached there ; her parents were following his friend and they also reached there with the police. Police apprehended accused and his friend. She denied that accused established physical relations with her without her consent in a room where she was kept. During cross examination by accused she admitted that on 22.8.12 in the morning she had made a call on the mobile of accused from the mobile of her father. She volunteered that her brother used to drop her at the school and on that day her brother was not there and due to this reason she made a call on phone of accused to inquire about her FIR No. 394/12 page 4 of page 9 brother ; after 5 minutes of consuming Pepsi she became unconscious and cannot tell time when she regained consciousness ; there were houses around the house where she was kept by accused. She has further stated that whenever accused used to go out, he used to lock the main door from outside. There was no window in that room and even bathroom was inside that room. She stated that she does not know if motherinlaw of sister of accused was resident in the adjacent room and she used to cook food for them. She has further stated that on 25.8.12 at about 10 a.m she left the house with accused, she was fully conscious and accused had threatened to kill her brothers if she did not agree to do marriage with him; lot of public was present in the Court when she was brought there; she did not complain against accused that accused had obtained her signatures on papers of court marriage because she was scared and was under threat. She admitted that accused had purchased one pair of clothes for her ; on 29.8.12 she had worn Sari given by accused to her. She admitted that on 22.8.12 she was carrying school bag containing books and was wearing school dress ; she was carrying photocopy of the identity of her parents and ration card. She further stated that on 25.8.12 they stayed in the Court for half an hour and she had signed 23 papers. A photograph mark PX showing her, accused, two more girls and a boy was shown to her and she admitted that the photograph is of her. A Court question was put to her that whether this photograph was taken at Pandav Nagar. She replied that she does not remember. She admitted that in this photograph accused had put his right hand on her right shoulder, she explained that accused suddenly put his arm on her shoulder and she had not taken notice of it at that time.
11. PW4 Hari Lal is the complainant being father of prosecutrix. He has deposed regarding missing of the prosecutrix and her recovery on 29.8.12 at Dasna Pull being called by Raju, friend of accused. During cross he admitted that ration card mark PW4/X is his. He stated that date of birth of prosecutrix is wrongly mentioned as 1994 on it.
FIR No. 394/12 page 5 of page 9
12. PW9 Raju is the friend of accused, as per him on 29.8.12 police made a call to him on his mobile. He met the IO who inquired from him about accused and prosecutrix. Accused used to talk with him on telephone and he called accused at Dasna Bridge. Accused reached there with prosecutrix and at his instance accused was apprehended. During cross examination he admitted that he is witness to affidavits Ex.PW8/A which bears his signatures at pint A. He stated that prosecutrix married with accused with her freewill and at that time she was more than 18 years of age. He admitted that he had asked prosecutrix not to marry without consent of her family but she was adamant and due to this reason they both married at Arya Samaj Mandir, Yamuna Bazar. PW8 Sh. D.K. Tyagi, Advocate has attested affidavits of accused and prosecutrix as he was working as Notary Public. As per him on 25.8.12 he was working as Notary Public. Accused and prosecutrix came to him, they signed their affidavits in his presence and same were notarized by him. They also produced marriage deed and same was also notarized by him.
13. Ex.PW10/A is the DNA finger print unit report proved by PW10 Ms. Anita Chhari, SSO Biology, DNA Unit, FSL. In her report PW10 has observed that the DNA profiling STR Analysis performed on the exhibit '2a' (underwear of victim) & exhibit '3' (Blood gauze of accused) provided is sufficient to conclude that the Biological stains on the source of exhibit '2a' (underwear of victim) and the source of exhibit '3' (Blood gauze of accused) are similar.
14. One of the main contention raised by Ld. defence counsel for the accused is that prosecutrix was more than 18 years of age, she had willingly left her house as she wanted to marry accused and they both had married in the temple. Age of the prosecutrix is very material consideration. As per Ex.PW1/A to Ex.PW1/D record produced by PW1, Principle, MCD School date of birth of prosecutrix is 20.12.96, the incident is dated 22.8.12. Accordingly, as per school record she was less than 16 years of age at the FIR No. 394/12 page 6 of page 9 time of incident.
15. While deposing before this Court prosecutrix had given her age as 16 years. Ex.PW2/A is the statement of the prosecutrix recorded u/s. 164 CrPC wherein she has made same statement as deposed by her before this Court. Here also she has given her age as 15 plus by specifically stating that she will complete 16 years in December.
16. Ex.PW8/A is the affidavit of accused, Ex.PW8/B is the affidavit of prosecutrix attested by PW8 who was working as Notary Public in KKD Court Complex. In her affidavit prosecutrix has mentioned that she has attained age of majority and her date of birth is 18.4.94. Mark PW4/X is the ration card of prosecutrix bearing photograph of her father(PW4), where her year of birth is mentioned as 1994. It is relevant to mention here that PW4 has admitted that it is copy of his ration card but he has stated that date of birth of prosecutrix is wrongly mentioned on it. PW1 during her cross examination admitted that no documentary proof regarding her date of birth was produced by father of prosecutrix at the time of her admission and whatever date of birth is mentioned in her affidavit same is mentioned on record. No doubt as per school record date of birth of prosecutrix is 20.12.96 but the question arises that how her year of birth is mentioned as 1994 in her ration card. As per mark PW4/X i.e. copy of the ration card, it was renewed in Jan'2010, meaning thereby it was prepared much earlier than 2010. The age mentioned on the ration card cannot be ignored. PW4 has failed to explain that why age of prosecutrix was wrongly mentioned in ration card. The law is settled that if on the basis of evidence on record regarding a particular fact two interpretations are possible, the interpretation favouring accused should be taken. Therefore, age of the prosecutrix is taken as 1718 years.
17. As per statement of prosecutrix discussed above she had gone with the accused in auto at noon time, had stayed with accused for 7 days in a room, had gone to KKD Court and had signed her affidavit, marriage deed FIR No. 394/12 page 7 of page 9 and registration of same by Notary Public, it cannot be believed that during all this she did not raise any alarm or complained to anyone, since as stated by her, she was under threat given by accused to kill her brothers. As already discussed prosecutrix was having mobile number of accused and on 22.8.12, when she went missing, admittedly in the morning she had called accused on his mobile. The explanation given by her that since her brother was not there due to this reason she had made a call to accused is not found satisfactory.
18. The statement of prosecutrix further appears to be doubtful as she has specifically denied that accused had established physical relations with her. Ex.PW10/A the DNA report establishes that she had physical relations with accused. Why prosecutrix is denying of having physical relations with accused, prosecution has failed to explain that.
19. As already discussed age of the prosecutrix stands established as 1718 years. She was on the verge of majority. In view of the evidence discussed above, it cannot be said that accused had taken away her after giving her any enticement.
20. In S. Varadarajan Vs. State of Madras AIR 1965 SC 942, court has interpreted taking or enticing away a minor out of the keeping of a lawful guardian and has observed as follows: " But when the girl ( who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) from the house of the relative of the father where she is kept , herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the SubRegistrar's Office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the FIR No. 394/12 page 8 of page 9 accused by complying with her wishes can by no stretch of imagination be said to have ' taken' her out of the keeping of her lawful guardianship, that is, the father.
The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him."
21. In view of the facts and circumstances of this case, prosecution has failed to prove its case against accused beyond reasonable doubt. Accused is thereby acquitted from the offences punishable under Section 363/366/328/376 IPC.
File be consigned to the record room.
ANNOUNCED IN OPEN COURT ON 22.04.14 (SANJAY GARG) ADDL. SESSIONS JUDGE(EAST) 01 KARKARDOOMA COURTS : DELHI FIR No. 394/12 page 9 of page 9