Delhi District Court
State vs 1). Hargovind S/O Shri Arjun Singh on 15 September, 2016
IN THE COURT OF SHRI SANJAY SHARMAI
ADDL. SESSIONS JUDGE - 01 (NORTHEAST)
KARKARDOOMA COURTS : DELHI
SC No. 44750/2015
FIR No. 36/2013
PS Gokalpuri
Under Section 363/366/376 IPC and
Section 4 of the POCSO Act
State Versus 1). Hargovind S/o Shri Arjun Singh
R/o 38/456, Kansi Ram Colony, Uraie, UP
2). Arjun Singh (since declared P.O)
Date of institution of case : 24.5.2013
Date on which judgment reserved : 06.9.2016
Date of judgment pronounced : 15.9.2016
J U D G M E N T :
On 22/1/2013, complainant Sunil Kumar lodged complaint at PS
Gokalpuri that his daughter/victim - aged about 13 years, has been
kidnapped by someone. On the basis of his complaint, present case was
registered under Section 363 IPC.
Subsequently, on 27.2.2013, victim was found present at bus stop,
Yamuna Vihar by the complainant and his uncle (phoofa) Prabhu Dayal and
accused Hargovind was also present with her. The information regarding the
same was given at the PS. Statement of the victim was recorded U/S 161 Cr.
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PC and on its basis Section 4 of the POCSO Act was added in the FIR.
Subsequently, statement of the victim was recorded U/S 164 Cr. PC in
which she made allegations of kidnapping and rape by the accused
Hargovind. Section 366/376 IPC were also added in the FIR and charge sheet
was filed against accused Hargovind for the offences punishable under
Section 363/366/376 IPC and Section 4 of the POCSO Act.
2. Copies of the charge sheet were supplied to the accused. Vide
order dated 27.8.2013, separate charges for the offences punishable under
Section 363/366 IPC and Section 4 of the POCSO Act were framed against
accused Hargovind. Subsequently, vide order dt. 09.5.2016, an alternate
charge for the offence punishable under Section 376 IPC was framed against
the said accused, on an application moved by Ld. Addl. PP for the State. The
accused pleaded not guilty to the charges and claimed trial.
3. The matter was fixed for prosecution evidence. Statement of the
victim was recorded as PW1, in which she deposed that father of accused
Hargovind arranged one room on rent. On its basis, ld. Addl. PP for the State
made a request to summon father of accused Hargovind, namely Arjun Singh
as an accused U/S 319 Cr. PC as according to the deposition of the victim, an
offence under Section 16 of the POCSO Act was disclosed against him.
4. The request of Ld. Addl. PP for the State was allowed and vide
order dt. 20.2.2014, Arjun Singh was summoned as an accused. Said accused
evaded his appearance in the Court and coercive process was issued against
him but he abstained from appearing in the Court. Accused Arjun Singh was
declared 'proclaimed offender' vide order dt. 13.10.2014.
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5. In order to establish its case, the prosecution examined 18
witnesses at the trial.
PW1 was the victim who deposed about the incident.
PW2 ASI Vijay Kumar was the Duty Officer who proved the FIR.
PW3 Ct. Rakesh Kumar deposited the exhibits of this case at FSL,
Rohini.
PW4 Sunil Kumar was the complainant and father of the victim.
PW5 Ms. Seema Vishwas was the Principal from the school last
attended by the victim and she proved her school admission record.
PW6 Smt. Kishori Devi was a witness from District Urai where
accused Hargovind and the victim resided as tenant in her neighbour.
However, PW6 turned hostile and did not support the prosecution story.
PW7 Seema was the landlady where accused Hargovind resided
alongwith the victim at District Urai and she deposed that the room was
arranged by the father of said accused.
PW8 Dr. Dinesh proved the MLC of the victim.
PW9 Dr. Pragati medically examined the victim in the Gynae
Department and proved her detailed observations.
PW10 Dr. P. Ram proved the MLC of the accused.
PW11 HC Ashok Pal Singh was the MHC(M).
PW12 Ct. Abrar got the accused medically examined at GTB Hospital.
PW13 lady Ct. Anu Chowdhary got the victim medically examined at
GTB Hospital.
PW14 Ct. Hajari Lal was a witness to the arrest of accused.
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PW15 HC Jitender went to verify the marriage of the victim with
accused Hargovind at Urai, Jalon (UP).
PW16 ASI Ram Kishore recorded the missing report of complainant
and prepared ruqqa upon it and then got the present FIR registered. He
deposed that further investigation was assigned to Ins. Tilak Chand.
PW17 Ins. Tilak Chand Bisht handed over case file of this case to ASI
Sushila for further investigation after the recovery of the victim alongwith
the accused. He further proved the certificate U/S 65B of the Indian
Evidence Act.
PW18 ASI Sushila was the IO and she deposed about the investigation
and also proved the relevant documents.
6. Statement of accused Hargovind was recorded separately U/S
313 Cr. PC and all the incriminating evidence was put to him which he
denied and claimed that he has been falsely implicated in this case. He
declined to lead evidence in his defence while claiming that he never enticed
the victim nor committed rape upon her nor kept her at his house.
7. I have heard Ld. Addl. PP for the State, Ms. Trilochna -
Advocate for the accused and have carefully gone through the records.
8. The fact that the victim had accompanied the accused has been
proved on record. The evidence which has come on record in this respect
requires appreciation . PW4, father of the victim had lodged the FIR and he
proved this fact. He also deposed that the accused, who is the son of his
maternal uncle, had resided at their house for about two months prior to
22.1.2013. He also deposed that on 27.2.2013, he was informed by some SC No. 44750/2015 FIR No.36/2013 PS Gokalpuri 4 of 12 persons of his locality about the presence of the victim and the accused at the bus stand of Bhagirathi Vihar, Yamuna Vihar and he accordingly went there alongwith his uncle (phoofa) and apprehended both of them and brought them to PS Gokalpuri. PW14 and PW18/IO deposed similarly regarding the apprehension of the accused and the victim from the same place. The depositions of these three witnesses could not be challenged in their cross examination . Thus, the fact has been proved on record that the victim was found in the company of the accused at Yamuna Vihar from where they were apprehended.
9. It is the case of the prosecution that the victim had gone to Urai and from there she alongwith the accused went to Jalon (UP) where they resided as husband and wife after getting married, in a rented house which belonged to PW7 Seema . This fact was again confirmed by PW7 who in her testimony deposed that she knew the accused and that he had resided in her house at District Jalon, UP on rent for about five days in the year 2013, alongwith a girl aged about 15/16 years. She further deposed that father of the accused had arranged for the said room disclosing that it was required for his son and his daughter in law. She also deposed that the rent was fixed as Rs.500/ per month . On being suggested by Ld. Addl. PP for the State, she admitted that the two had come to her house on 22.2.2013. Again , her testimony could not be impeached in the crossexamination wherein she also deposed that after about 45 days of the accused and the victim leaving the house, police had approached her and made inquiries.
10. PW6 was a neighbour of PW7 . However, she turned hostile and SC No. 44750/2015 FIR No.36/2013 PS Gokalpuri 5 of 12 failed to identify both the victim as well as the accused. In any case, PW7 stood to her ground and deposed categorically about the victim and the accused residing in her house on rent at District Jalon, UP. Thus, these facts have been established on record, i.e. that the accused and the victim had resided for a month at District Jalon and were apprehended at Yamuna Vihar, Delhi.
11. The fact as to how the victim had gone or found in the company of the accused could only have been deposed by the victim herself and therefore, her testimony in this respect assumes importance. After her recovery, she was firstly examined U/S 161 Cr. PC, thereafter her statement was recorded U/S 164 Cr. PC and then her deposition was recorded in the Court. It is to be appreciated that she had maintained the same version in all the three statements.
12. In her statement U/S 161 Cr. PC, which was recorded on 27.2.2013, i.e. after about five days of her recovery, she stated that the accused who is her uncle in relation used to reside with them and in December 2012, she fell in love with him. However, her family had some suspicion and as such , the accused left the house but they continued talking on phone. She further stated that on one day, the accused asked her to reach Urai, UP by train and accordingly, on 22.1.2013, she went out of her house in school dress, taking alongwith 23 other civil dresses and instead of going to the school, she reached at Ghaziabad Railway Station where she changed her dress, took a train and reached Urai where the accused was already waiting. She stated that the accused then took her to his house where they stayed for SC No. 44750/2015 FIR No.36/2013 PS Gokalpuri 6 of 12 one night and on the next day, father of the accused took a room on rent at Jalon where they started residing together. On 27.1.2013, they entered into marriage at Shiv Mandir at Jalon and thereafter they started residing as husband and wife. She further stated that on 25.2.2013, upon her insisting the accused, he brought her to Delhi to meet her parents but they were caught at Yamuna Vihar bus stand.
13. Almost similar statement was made by the victim before the Ld. MM in her statement U/S 164 Cr. PC Ex.PW1/A . In this statement, she further added that the accused had told him that his family would be against his marrying her but that she wanted to marry him and had called him near her school. Accordingly, on 22.1.2013, at about 7.30 am, the accused came to pick her up and thereafter they went to Ghaziabad Railway Station and then went to Urai by a train . Thereafter, she deposed about her marriage with the accused and also deposed that they had sexual intercourse but with the use of a condom. She also deposed that her family members and the IO had told her to depose against the accused and on that condition they had agreed for her marriage with the accused.
14. In her deposition before the Court, she again affirmed the same facts deposing that she had left the house on 22.1.2013 for school in uniform but had carried two pairs of extra clothes in her bag without any books. She went alone to Ghaziabad where she changed her dress, took a train and reached Urai where the accused had met her on the station . She repeated all the facts regarding her entering into marriage with the accused and residing in a tenanted premises at Jalon and regarding her returning back to Delhi on SC No. 44750/2015 FIR No.36/2013 PS Gokalpuri 7 of 12 25.2.2013 from where they were apprehended at Yamuna Vihar bus stand. She also deposed that they had sexual intercourse twice during the period of their stay at Urai. In the crossexamination conducted by Ld. Defence Counsel, she changed her statement to the effect that the accused met her near Jyoti Nagar red light and she had proceeded from her house to the school on 22.1.2013 and then they both together went to Ghaziabad Railway Station from where they boarded a train to Urai. She admitted that she had not made any complaint to anyone at the place where she was kept by the accused nor had made any phone call to her parents during her stay with the accused. She also admitted that the accused had not made any sexual intercourse with her but had tried to do it but was not successful. Thus, on this part she made improvements.
15. It is a matter of record and as deposed by PW9 that the victim had refused for her internal and external medical examination . Hence, the allegations of rape could not be confirmed or corroborated. The testimony of the victim in this regard is also not clear. She had not alleged any sexual intercourse by the accused in her statement U/S 161 Cr. PC, but only stated that they had resided as husband and wife. In her statement U/S 164 Cr. PC Ex.PW1/A , she deposed that the accused had sexual intercourse with her using a condom and in her deposition before the Court, in her examination in chief, she deposed that twice she had sexual intercourse with the accused but in the crossexamination she denied that fact and deposed that the accused tried to have it but was not successful. No reliance can be placed on such deviating statements as also the testimony of the victim which is also not SC No. 44750/2015 FIR No.36/2013 PS Gokalpuri 8 of 12 supported by any medical evidence. Hence, in my opinion , the prosecution has not been able to prove the allegations of rape against the accused.
16. The fact that the victim had gone alongwith the accused has come on record and her testimony to that effect could not be challenged in the crossexamination though there is no doubt to hold that she had gone with the accused with her consent and no force was used by the accused. Once it is clear beyond doubt that the victim had gone with the accused with her consent, her age assumes importance.
17. According to the prosecution , she was about 13 years and 3 months of age when she eloped with the accused. However, this age could not be proved on record, as per law. PW4, the father of the victim in this regard deposed that she was born at Kanpur at their house and that he had produced her horoscope at the time of her admission in the school but no such horoscope could be produced on record. In his crossexamination , he failed to depose the date of birth of the victim. Thus, the main witness who could have given the correct date of birth failed to mention the same.
18. The prosecution tried to prove the age of the victim from her school records. PW5 was examined in this respect. She deposed that the victim was admitted in their school on 11.7.2006 in Class II and as per the records, her date of birth was 28.10.1999. She further deposed that she was admitted on the basis of the school leaving certificate of the previous school. However, no witness from the previous school was examined to prove the school leaving certificate issued by that school, Ex.PW5/C. There was no independent birth certificate or any other document which was submitted at SC No. 44750/2015 FIR No.36/2013 PS Gokalpuri 9 of 12 the time of her admission to the second school.
19. In Rakesh Kumar Vs. State 2004 (1) JCC 110 Delhi, under similar situation , it was held by the Hon'ble High Court that "transfer certificate does not indicate who got her admitted initially and on what basis the date of birth was recorded as 01.3.1975. No birth certificate has been produced on record. In absence of birth certificate and other reliable material regarding the date of birth , it cannot be said with certainty that the date of birth of Poonam 01.3.1975 as given in the school certificate is her correct date of birth . It is a matter of common knowledge that at the time of admission in the schools the parents generally tend to get the age of their ward recorded on the lower side so that they do not become over aged while searching job and they remain in service for longer period".
20. Similarly, in Harpal Vs. State of Haryana 2004 (1) RCR (Cri.) 480, the school leaving certificate was not believed in the absence of any other evidence, such as register of the village chowkidar etc. for proving the age of the victim. Devanand Vs. State of NCT of Delhi, 2003(1) RCR Crl. was also a case of rape and therein too the age of the victim was alleged to be 13 years. In that case as well, the entry in the school record was based on school leaving certificate and not on birth certificate. It was observed that "obviously date of birth has been given on certain approximate date which might have flown from the parents of the prosecutrix". The said school leaving certificate was not relied upon .
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21. Thus, a serious doubt has been created regarding the age of the victim. The manner in which she had acted and conducted herself is not that of a minor girl of about 13 years of age. She not only developed a love affair with the accused but had also eloped with her and went to a distant place like Jalon, UP where she entered into marriage with the accused and resided with him as his wife. In none of her statement or in her deposition before the Court, she made any allegation against the accused that he, in any manner, enticed her or forced her either to elope with him, enter into marriage or for sexual intercourse, as alleged by the prosecution . In any case, the prosecution has failed to prove that the victim was a minor at the time when she went with the accused. There is no concrete evidence regarding her age and the benefit of the same would obviously go to the accused.
22. Considering the above facts in totality and the evidence which has come on record, more particularly the testimony of the victim, the only conclusion which can be drawn is that the victim had gone with her consent with the accused and resided with him at Jalon, UP. The factum of marriage could also not be proved on record and there is only a bald statement of the victim to prove this fact. Infact, PW15 who had gone to Jalon to verify the fact of marriage, deposed that he could not found any evidence of marriage between the victim and the accused. As already discussed above, the allegations of rape could also not be proved in view of the contradictory statements of the victim and lack of any corroborative medical evidence. The lack of evidence regarding the minority of the victim would also give benefit of doubt to the accused regarding the allegations of abducting her.
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23. Hence, in these circumstances, accused Hargovind is extended benefit of doubt and he is accordingly acquitted of the offences 363/366 IPC, Section 376 IPC and Section 4 of the POCSO Act. He is set at liberty. His personal bond and surety bond stand discharged.
File be consigned to record room after complying with the provisions of Section 437A Cr. PC.
ANNOUNCED IN OPEN COURT ON 15th day of September 2016 (Sanjay SharmaI) Addl. Sessions Judge01 (NE) Karkardooma Courts, Delhi SC No. 44750/2015 FIR No.36/2013 PS Gokalpuri 12 of 12