Delhi District Court
Sc No: 148/14 State vs . Sonu on 22 December, 2015
SC No: 148/14 State Vs. Sonu
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 148/14
FIR No. 88/14
Police Station Adarsh Nagar
Under Section 363 /366 / 376 IPC,
4 POCSO Act
ID No. 02404R0-276842014
State
Versus
Sonu
S/o Sh. Jugal Kishor
R/o House no. 1492, Gali No.12,
Rajiv Nagar, Gurgaon,
Haryana. ......Accused
Date of institution 01/08/14
Judgment reserved on 22/12/15
Judgment Pronounced on 22/12/15
Decision Acquitted
Judgment 1 of 12
SC No: 148/14 State Vs. Sonu
JUDGMENT
1. Briefly stated the case of the prosecution is that prosecutrix 'A', aged about 16 years went missing from her house on 31.01.2014. Her father alleged that his daughter has been kidnapped by the accused and prayed that she be traced out. On the basis of the complaint, the present FIR was registered.
2. During the course of investigation, IO made efforts to search the prosecutrix through publicity & publication in electronic and print media but there was no clue of the prosecutrix. On 28.05.2014, the prosecutrix and the accused were apprehended from house no. A-256, Surya Vihar, Sector 9, Gurgaon, Haryana and they were brought to Delhi. Prosecutrix claimed that she was in love with accused and went with the accused of her own free will and got married to him. Prosecutrix was medically examined. Since, the prosecutrix was found minor, accused was arrested. After completing investigations, charge-sheet was filed.
Judgment 2 of 12
SC No: 148/14 State Vs. Sonu
3. Charge for the offence U/s 363/366 IPC & Section 4 POCSO (Protection of Children from Sexual Offences) Act were framed against accused. Accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
4. Prosecution has examined 4 witnesses.
5. PW1 is the prosecutrix. She testified that her age is 19 years. She developed friendship with the accused and started liking him. Her parents came to know about her affair with the accused and they sent her to the house of her maternal uncle. She voluntarily left the house of her uncle without informing anyone and met the accused and requested him to marry her. Accused tried to make her to understand to go back to her parents but she threatened the accused of committing suicide and under her pressure, accused solemnized marriage with her. She denied that the Judgment 3 of 12 SC No: 148/14 State Vs. Sonu accused established physical relations with her. She further deposed that she returned back to Delhi along with the accused after they were apprehended by the police. Accused was arrested vide memo Ex. PW1/A. She was taken to Hospital for medical examination but she refused for the same. She proved her statement Ex. PW1/B recorded U/s 164 Cr. PC .
6. PW2 is the father of the prosecutrix. He lodged the missing report Ex. PW2/A of her daughter aged about 16 years. He testified that on 30.05.2014 he got recovered his daughter vide recovery memo Ex. PW2/B.
7. PW3 is mother of prosecutrix. She deposed on similar lines of her husband (PW2).
8. PW4 is maternal uncle of prosecutrix. He deposed that prosecutrix went missing from his house.
Judgment 4 of 12
SC No: 148/14 State Vs. Sonu
9. In the present case, the prosecution cited 12 witnesses in order to prove its case against the accused. After framing of the charge the accused gave a statement wherein he admitted FIR in question as Ex. PX-1, MLC of the prosecutrix Ex. PX-2, his MLC as Ex. PX-3, his potency report Ex. PX-4, Date of birth certificate issued by School of prosecutrix Ex. PX-5 and his personal search memo Ex. PX-6. In view of the same the concerned Duty Officer, Doctor and police witnesses were not summoned for examination. Remaining witnesses were examined as PW1 to PW4 and their testimonies have already been discussed as above.
10. In these circumstances PE was closed. Statement of accused was dispensed with as no incriminating evidence came on record against the accused from the statements of material witnesses.
Judgment 5 of 12
SC No: 148/14 State Vs. Sonu
11. Arguments have been addressed by learned
Additional PP as well as learned defence counsel.
12. I have heard the arguments and also perused the case file carefully.
13. Age of the prosecutrix: In the present case, accused is alleged to have kidnapped prosecutrix, a minor aged about 16 years with intent that she may be compelled to marry him and/or be forced/seduced for illicit intercourse with him. In order to prove that the prosecutrix was a "Child" less than 18 years of age, as on the date she went missing from her house, prosecution collected the School record of the prosecutrix Ex. PX-5 wherein, the date of birth of the prosecutrix is 07.03.1998.
14. Juvenile Justice (Care and Protection of Children) Act, 2000 has laid down the guidelines to arrive at a finding about the age of a juvenile. These are contained in Rule 12 of the Juvenile Judgment 6 of 12 SC No: 148/14 State Vs. Sonu Justice (Care and Protection of Children) Rules, 2007. The procedure to be followed in the determination of the age is contained therein. Hon'ble Supreme Court in Mahadeo Vs. State of Maharashtra & Anr, (2013) 11 SCC 637 has held that this procedure will also apply for determination of age of a rape victim.
15. Rule 12 (3) clearly states that the age inquiry would conducted by the Court by obtaining matriculation or equivalent certificate in the absence of which the date of birth certificate from the school first attended or the next option being the birth certificate issued by the municipal authorities be obtained. Documents relied upon by the prosecution to establish that the prosecutrix was born on 07.03.1998 does not fit into any of the afore-noted category. In such an anomaly, Rule 12 states that a Medical Board will be constituted to determine the age of a victim. This would only be a relevant fact and needless to state, would not be a conclusive evidence about the age of the victim.
Judgment 7 of 12
SC No: 148/14 State Vs. Sonu
16. Stand of the prosecution that the prosecutrix was a minor is not established by the documents relied upon by the prosecution. In terms of Rule 12 if the first three parameters contained in Rule 12 (3) are not made available, the next step would be to subject the prosecutrix to an ossification test. However, ossification test was not got conducted on the prosecutrix.
17. Prosecutrix in her testimony claims her age to be 19 years. No record of any Government authority has been relied upon by the prosecution to prove genuine date of birth of the prosecutrix. Therefore, there is no conclusive evidence on record to establish that prosecutrix was a minor, on the day when she went missing.
18. Ld. Addl. PP has contended that since prosecutrix was less than 18 years of age as on the date of commission of offence, accused is liable to be convicted U/s 363/366 IPC. As stated above, prosecution has not been able to establish that prosecutrix was minor the day she went with the accused. However, Judgment 8 of 12 SC No: 148/14 State Vs. Sonu let us consider the testimony of the prosecutrix to find out whether the accused has committed the said offence.
19. Testimony of prosecutrix: Prosecutrix categorically deposed that she be-friended with the accused and went away with him voluntarily and of her own will. In her testimony, as well as in her statement Ex. PW1/B she stated that she has married the accused voluntarily. She categorically deposed that accused did try to make her to understand to go back to her parents but she threatened the accused of committing suicide and under her pressure, accused solemnized marriage with her. There is no evidence on record that she was enticed by the accused, in any manner, to go with him. Thus, the factum of forcible marriage or taking away of the prosecutrix for the purpose of said marriage is concerned, there is not even an iota of evidence on record.
Judgment 9 of 12
SC No: 148/14 State Vs. Sonu
20. It has been held in para 8 of the judgment titled as Bunty Vs. State (G.N.C.T.) of Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011 by the Hon'ble Delhi High Court that :
"8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had traveled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...."
21. In this regard, it would relevant to refer to the case titled as " S. Varadarajan Vs. State of Madras (reported as AIR 1965 SC 942)", where in while distinguishing between "taking" and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India that:
" There is a distinction between " taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. Judgment 10 of 12 SC No: 148/14 State Vs. Sonu
361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing , voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian."
22. In the present case also, the element of 'taking away' or 'enticement' is found to be lacking. In view of the material on record, it is evident that prosecutrix was willing and consenting party and it seems that everything has happened with her will. In these circumstances, the factum of kidnapping of prosecutrix does not stands proved.
23. The nutshell of foregoing discussion is that from the testimony of the prosecutrix as well as other material witnesses examined by it, the prosecution has miserably failed to prove that accused had kidnapped prosecutrix, with intention to compel her to marry him and to force/seduce her to have illicit intercourse with him.
Judgment 11 of 12
SC No: 148/14 State Vs. Sonu
24. Moreover, the prosecutrix has categorically deposed that the accused did not establish physical relationship with her. As per the MLC of the prosecutrix Ex. PX-2, prosecutrix refused her internal medical examination as such there is no medical evidence on record to establish physical relationship between accused and prosecutrix. Hence, the accused cannot be held to be guilty of committing offence of rape or sexual assault on her as punishable under Section 4 POCSO Act.
25. Accordingly, I acquit accused Sonu of the charged offence. Accused is directed to furnish a personal bond in sum of Rs 10,000/- under provisions of Section 437-A Cr.P.C. File be consigned to record room.
Announced in open Court on Day of 22nd December, 2015.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
22.12.2015
Judgment 12 of 12
SC No: 148/14 State Vs. Sonu
22.12.2015
Present : Ms. Suchitra Singh Chauhan, Addl. PP for the State.
Accused on bail with Counsel Ms. Sonia Garg Matter is fixed for recording of PE. No PW is present. Since, material witnesses have not supported the prosecution case, PE stands closed.
There is no incriminating evidence against the accused. Accordingly, recording of statement of accused u/s 313 Cr.P.C stands dispensed with.
Vide separate judgment, the accused stands acquitted for the offence punishable U/s 363/366 IPC & Section 4 POCSO Act. Accused is directed to furnish a personal bond in sum of Rs 10,000/- under provisions of Section 437-A Cr.P.C.
Bond furnished and accepted.
File be consigned to record room.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
22.12.2015
Judgment 13 of 12