Delhi District Court
The State vs . on 2 February, 2017
IN THE COURT OF SH. PAWAN KUMAR MATTO:
ADDL. SESSIONS JUDGE01 (WEST):
TIS HAZARI COURTS: DELHI.
SC No.: 294/16 (Old No.)
58256/2016 (New No.)
FIR No.: 276/16
PS : Mundka
U/S : 363/366/376 of IPC & Sec.6 of POCO Act
The State
(Govt. of NCT of Delhi)
Vs.
Nand Kishor
S/o Sh. Lal Babu Prasad
R/o Village Sisba Sob, Post Behlolpur,
PS Kalyanpur, District Champaran, Bihar
...... Accused
Date of Institution : 06.12.2016
Date of arguments: 02.02.2017
Date of judgment : 02.02.2017
JUDGMENT:
1 Brief facts of the case are that, in the case in hand, the FIR has been registered u/s 363 of IPC on the complaint of 'HSR' (presumed name of the father of prosecutrix), wherein, he has alleged that he is living on the address as mentioned in his complaint Ex.PW2/A and on dated 04.07.2016 at about 7.30 pm, his daughter 'R' (presumed name of the prosecutrix), aged about 14years, had gone out of his house for some domestic work and he firmly believed that accused Nand Kishor had FIR No.276/16 PS Mundka State Vs. Nand Kishor Page 1 of 13 kidnapped away to the prosecutrix, as accused Nand Kishor is also missing from his house from the same day. He has also suspected that mother, father & brother of this accused Nand Kishor are also having hands in the kidnapping of the prosecutrix, as they did not disclose about the accused and the prosecutrix. He has also alleged that accused Nand Kishor also belongs to his native village and on the date & time of alleged occurrence, he was living in the area of Mundka and he was in search of an opportunity to do this immoral act and prayed for taking legal action against this accused Nand Kishor. On such complaint of the complainant, FIR no. 276/16 was registered u/s 363 of IPC dated 13.07.2016 and on the recovery of the prosecutrix, her statement U/s 164 of Cr.PC was recorded, wherein, she has failed to support the case of the prosecution. The accused was arrested on 16.10.2016 & since then, he is behind bars.
2 On completion of the investigation, the chargesheet was filed U/s 363/366/376 IPC and Sec. 6 of POCSO Act. Copy of charge sheet and CD were supplied to the accused. On finding of the primafacie case, the charges U/s 363/366/376 of IPC & Sec.6 of POCSO Act were framed against the accused, to which, the accused pleaded not guilty and claimed trial. Accordingly, the accused was put on trial.
3 In order to prove its case, prosecution has examined two witnesses.
4. On dated 11.01.2017, the complainant "HSR" (presumed name of father of the prosecutrix) was examined as PW1, who has deposed that he has nine children and the prosecutrix "R' is his 5th child.
FIR No.276/16 PS Mundka State Vs. Nand Kishor Page 2 of 13He has further deposed that one day at 07:30 pm about 45 months prior to the recording of his testimony in this court, he had filed a complaint Ex.PW1/A regarding the kidnapping of the prosecutrix (who is 15 years 6 months or 16 years of age) by the accused from his house, who had come from Bihar. He has also deposed that the prosecutrix was recovered from Jalandhar after two and half months/three months alongwith accused. During his examination in chief, this witness has correctly identified to the accused. This witness was cross examined by the Ld. Counsel for accused and during his cross examination, this witness has admitted that accused also belongs to his village and that he knows the entire family of the accused. He has also admitted it to be correct that his caste & the caste of the accused are different and his family and the family of the accused were on visiting terms. He has denied that prosecutrix was more than 18 years of age, when she eloped away with the accused. He has also admitted that when the prosecutrix had left his house, he was not present in his house and his two small children were present in his house at that time. He has further deposed that his wife was there in the Bazar for selling some goods. He has also admitted it to be correct that accused Nand Kishor had not kidnapped away to the prosecutrix and denied that he was aware that prosecutrix was in Jalandhar along with the accused. He had also deposed that he does not know whether the prosecutrix had voluntarily gone to the Jalandhar with the accused or not.
5 Whereas, the prosecutrix 'R' (presumed name) has been examined as PW2 today, who has deposed that she had left her studies about 4 years back and she is 20 years of age and in the month of July, 2016, she was living in Mundka and she has correctly identified to the FIR No.276/16 PS Mundka State Vs. Nand Kishor Page 3 of 13 accused. When this prosecutrix was asked, as to where did this accused take her in July, 2016, she has replied that ' YE MUJHE KAHIN NAHI LEKAR GAYA THA. PAPA MUJHE MAARTE THE TO MENE ISSE KAHA THA KI MUJHE PUNJAB LEKAR CHAL'. She has also deposed that she married with the accused Nand Kishor in a temple in Punjab. She has categorically denied the development of her physical relations with the accused Nand Kishor. Since this prosecutrix did not support the case of the prosecution. So, the Ld. APP for the State has sought permission to cross examine this witness and after hearing, this witness was declared as 'hostile' and the Ld. APP for the State was allowed to crossexamine this witness and during her crossexamination by the Ld. APP for the State, she had admitted that her statement was recorded by the Ld. Metropolitan Magistrate. But, on seeing her statement U/s 164 of Cr.PC, she has denied her signature thereon. She has denied that she had told to the Ld. Metropolitan Magistrate, who had recorded her statement u/s 164 of Cr.PC that she was pregnant, at that time. She has also denied that she was 16 years of age at that time or that she has deposed falsely, since she had married with the accused Nand Kishor. This witness was also crossexamined by the Ld. Counsel for the accused and during her crossexamination, she has admitted it to be correct that she was never kidnapped or raped by the accused Nand Kishor. She has admitted it to be correct that her father had lodged the false complaint against the accused. When this prosecutrix was asked if she had voluntarily gone from the house of her father, then, she has replied that 'HAAN MAIN APNI MARZI SE APNA GHAR CHHOD KAR GAYI THI'. She has also admitted it to be correct that accused Nand Kishor had not done any GALAT KAAM with her and deposed that 'HAAN ACCUSED NAND KISHOR NE MERE SAATH KOI GALAT KAAM NAHI FIR No.276/16 PS Mundka State Vs. Nand Kishor Page 4 of 13 KIYA'.
6 I have heard the Ld. Counsels for the parties.
7 After examination of PW2, today the Ld. APP for the State has submitted that the matter may be adjourned for examination of the remaining prosecution's witnesses, whereas, Ld. Counsel for accused has opposed the same and submitted that since, the prosecutrix & her father (complainant) have been examined & since the prosecutrix has failed to support the case of the prosecution, and father of the prosecutrix has also admitted during his cross examination that accused had not kidnapped to the prosecutrix so, he has prayed for closing the evidence of the prosecution & also prayed for acquittal of the accused.
8 Since, the prosecutrix has been examined & crossexamined today and the perusal of the record shows that, in the case in hand, FIR was registered on the statement of the father of the prosecutrix U/s 363 of IPC whereas at the time of the cross examination of complainant, who has been examined as PW1. He has admitted that the accused had not kidnapped to the prosecutrix. Since the prosecutrix has been examined as PW2 and at the time of her examination she has deposed that she is 20 years of age and when this prosecutrix was asked, as to where did this accused take her in July, 2016, she has replied that ' YE MUJHE KAHIN NAHI LEKAR GAYA THA. PAPA MUJHE MAARTE THE TO MENE ISSE KAHA THA KI MUJHE PUNJAB LEKAR CHAL'. She has also deposed that she married with the accused Nand Kishor in a temple in Punjab. She has categorically denied the development of her physical relations with the FIR No.276/16 PS Mundka State Vs. Nand Kishor Page 5 of 13 accused Nand Kishor and when this witness was crossexamined by the Ld. Counsel for the accused, she has admitted it to be correct that she was never kidnapped or raped by the accused Nand Kishor. She has admitted it to be correct that her father had lodged the false complaint against the accused. When this prosecutrix was asked if she had voluntarily gone from the house of her father, then, she has replied that 'HAAN MAIN APNI MARZI SE APNA GHAR CHHOD KAR GAYI THI'. She has also admitted it to be correct that accused Nand Kishor had not done any GALAT KAAM with her and deposed that 'HAAN ACCUSED NAND KISHOR NE MERE SAATH KOI GALAT KAAM NAHI KIYA'
9. So, in the given circumstances, the testimonies of PW1 & PW2 are found to be inconsistent & contradictory on the material points and the testimony of the prosecutrix is also contradictory to her statement recorded u/s 164 of Cr.PC, which is Ex.PW2/A, the testimony of PW1 & complaint Ex.PW2/A. So, in the considered opinion of this court, it will be futile to adjourn the matter for examination of the remaining witnesses of the prosecution. Accordingly, the evidence of the prosecution is closed by order, as, in the considered opinion of this court, no fruitful purpose would be served to examine the remaining witnesses of the prosecution, who are formal in nature, as the case of the prosecution cannot be resulted in conviction of the accused, even if remaining witnesses of the prosecution are allowed to be examined.
10 Since, nothing incriminating evidence has come on the record against the accused Nand Kishor, therefore, the statement of the accused U/S 313 Cr.P.C is dispensed with.
FIR No.276/16 PS Mundka State Vs. Nand Kishor Page 6 of 1311 Since, Their Lordship of the Hon'ble Supreme Court was pleased to hold in case 'Suraj Mal Vs. State (Delhi Administration) AIR 1979 Supreme Court 1408' was pleased to hold that:
"it is well settled that where witnesses make two inconsistent statements in their evidence either on one stage or at two stages, the testimony of such witness become unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witness."
12 Similarly, Their Lordship of the Hon'ble Supreme Court in case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi) and Hari Singh Vs. State (NCT of Delhi) (2012) 8 SCC 21'.
"In our considered opinion, the "sterling witness"
should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent FIR No.276/16 PS Mundka State Vs. Nand Kishor Page 7 of 13 with the case of the prosecution qua the accused.
There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the crossexamination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar test to be applied, can it be held that such a witness can be called as a "sterling witness"
whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."FIR No.276/16 PS Mundka State Vs. Nand Kishor Page 8 of 13
13 Their lordship of High Court of Delhi in Rameshwar Giri V. State, 211 (2014) Delhi Law Times, 508, was pleased to observe : "16. As held by the Supreme Court in AIR 1965 SC 942, S. Varadarajan V. State such an act would tantamount to 'taking'. The observations of the Apex Court in this context are as under:
"The offence of 'kidnapping from lawful guardianship' is defined thus in the first paragraph of Section 361 of the Indian Penal Code:
"Whoever taken or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship'
8. It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping.........11. It must, however, be borne in mind that there is a distinction between 'taking : and allowing a minor to accompany a guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful quardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.
12. It would, however, be sufficient if the prosecution establishes that through immediately prior to the minor FIR No.276/16 PS Mundka State Vs. Nand Kishor Page 9 of 13 leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to 'taking'."
"17. This version is further fortified by the fact that the victim was admittedly known to the accused as he was residing in the same street since the last 2 years. The fact that the accused was known to the victim is also admitted by both PW6 and PW7 i.e. the mother and father of the victim. PW5 had accompanied the appellant for sightseeing; they did sightseeing for one hour in Delhi; then by a TSR, the appellant took her to the railway station; people were gathered there to purchase tickets. Tickets were purchased by the appellant from the railway station from where he took her to Bihar which would be a more than one day journey. The victim stayed in the village of the appellant 23 days. She was never threatened by the persons living in that house/ 56 ladies were also present. Other persons from the village also came to meet her. The MLC of the victim also shows that there was no injury upon her person. This corroborates the argument of the Learned Counsel for the appellant that the victim was not subjected to any force.
18. This Court thus necessarily draws the conclusion that the victim was a consenting party with the accused. The offence of rape as defined under Section 375 of the IPC (unamended) is not made out as for the purposes of rape to qualify as a minor, the victim should be less than 16 years. As noted supra, the victim was aged 15 years & 9 months on the date of the offence i.w. just about three months short of the age of 16. Being in the age of discretion; this Court is of the view that she was conscious of her act in accompanying the accused and it cannot be said to be an act of force. The accused is entitled to an acquittal for FIR No.276/16 PS Mundka State Vs. Nand Kishor Page 10 of 13 the offence under Section 376 of the IPC. He is accordingly acquitted of the said charge.
14 Since, in case in hand, the FIR was registered on the statement of the father of the prosecutrix i.e. PW1, wherein, he has alleged that accused Nand Kishor has kidnapped away to the prosecutrix, who is 14 years of age, whereas, at the time of his cross examination in this Court, he has admitted that the accused had not kidnapped away to the prosecutrix and also deposed that he does not know whether the prosecutrix had gone with the accused voluntarily. Whereas, the prosecutrix 'R' (presumed name) has been examined as PW2, and when this prosecutrix is asked as to where did the accused take her in July, 2016, she has replied that YE MUJHE KAHIN NAHI LE KAR GAYA THA, PAPA MUJHE MAARTE THE TO MAINE ISSE KAHA KI MUJHE PUNJAB LEKAR CHAL. When she was asked whether physical relations were developed between her and the accused, she has categorically denied the development of physical relations with the accused Nand Kishor. This witness was also crossexamined by the Ld. Counsel for the accused and during her crossexamination, she has admitted it to be correct that she has never been kidnapped or raped by the accused and further admitted it to be correct that her father had lodged false FIR against the accused.
15 The prosecutrix has also admitted that she had gone voluntarily from the house of her father. The perusal of the complaint of the complainant shows that the complainant has alleged in his complaint Ex.PW1/A. The prosecutrix is 14 years of age and she has been kidnapped away by the accused. Whereas at the time of his cross examination, he has FIR No.276/16 PS Mundka State Vs. Nand Kishor Page 11 of 13 admitted it to be correct that the accused had not kidnapped away to the prosecutrix. Prosecutrix has deposed her age as on today 20 years. She has deposed that she had voluntarily gone with the accused and got married with the accused and accused has never kidnapped or raped her. So, the testimony of PW1 becomes doubtful & suspicious.
16 So, taking into consideration the material inconsistencies & contradictions in the testimonies of PW1 & PW2, this court is inclined to hold that the testimonies of PW1 & PW2 are inconsistent, suspicious, unreliable & untrustworthy, so, the same do not inspire any confidence, and since, the charges against this accused were framed u/s 363/366/376 of IPC & Sec.6 of POCSO Act, and the prosecutrix has admitted, when cross examined in this Court, that she has never been kidnapped nor raped by accused Nand Kishor. Therefore, I am inclined to hold that the prosecution has failed to prove that accused has committed the offences punishable u/s 363/366/376 of IPC & Sec.6 of POCSO Act beyond reasonable doubt. Accordingly, accused Nand Kishor is acquitted of the charges framed against him. The accused Nand Kishor is directed to furnish the bail bond in the sum of Rs.5,000/ with one surety of like amount, as per the provision of Section 437(A) of Cr.P.C, for next six months to ensure his presence in the Hon'ble appellate court and on filing of bail bond and surety bond, the file be consigned to the Record Room.
17 At this stage, the Ld. Counsel for the accused has filed an application and submitted that this accused is a poor man. He was granted bail by the court during the trial on dated 07.12.2016. But he could not arrange any surety and since the permanent address of this FIR No.276/16 PS Mundka State Vs. Nand Kishor Page 12 of 13 accused has already been verified. So, he may be released on personal bond. In view of the submission made by the Ld. Counsel for the accused and as the permanent address of his accused has already been verified by the IO. So, the accused is ordered to be released on personal bond of Rs. 5000/. At this stage, the Ld. Counsel for the accused has furnished the personal bond U/s 437A of Cr,PC of Rs. 5000/ and the same are accepted for a period of Six months and accused Nand Kishor is ordered to be released forthwith, if he is not required in any other criminal case.
File be consigned to the record room.
Announced in the open court (PAWAN KUMAR MATTO)
today i.e. on 02.02.2017 Additional Sessions Judge01(West)
Special Court Under POCSO Act / THC
02.02.2017
FIR No.276/16 PS Mundka State Vs. Nand Kishor Page 13 of 13