Delhi District Court
State vs 1. Manoj @ Mahender S/O Raj Kumar, on 17 May, 2013
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : North East / KARKARDOOMA
COURTS: DELHI.
Case ID Number. 02402R0359312011
Sessions Case No. 05/2012
Assigned to Sessions. 09.01.2012
Arguments heard on 17.05.2013
Date of Judgment 17.05.2013
FIR No. 262/2011
State Vs 1. Manoj @ Mahender S/o Raj Kumar,
R/o Nanik ka makkan, Sashi gali,
opposite Aara machine wali gali, U.P.
1. 2. Sudesh Kumar S/o Jodh Singh, R/o
Dr. J.S. Aggarwal House, Gali No.9,
New Lahaur Shastary Nagar, Delhi -
110031.
Police Station Khajuri Khas
Under Section 363/366/376 IPC
JUDGMENT
1. I shall dispose of this case in which Station House Officer of Police Station Khajuri Khas had filed a challan vide FIR No.262/2011 dated 21.08.2011 u/s 363/366/376/34 IPC for the prosecution of accused persons namely Manoj @ Mahender and Sudesh Kumar in the court of ld. Metropolitan Magistrate and section 207 Cr. P.C. had already been complied with by Ld. M.M. Since, this court is designated court for trial of the cases pertaining to child victims, hence this case was sent by Ld. District SC No.05/2012 State v. Manoj @ Mahender and another 1/15 Judge/Incharge, North East District, Karkardooma Courts to this court for trial. Keeping in view of section 228 (A) IPC and directions of Supreme court in "State of Karnataka Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of U.P. 2006, CRLJ. 2913", the name of prosecutrix is not being given in the judgment.
2. In brief, the facts of the case are that on 21.08.2011 complainant Subhash reached at police station Khajuri Khas and recorded his statement to S.I. Anuj Panwar regarding missing of his minor daughter. Accordingly, FIR No. 262/2013 u/s 363 IPC was registered. During the course of investigation police had arrested accused persons namely Manoj @ Mahender and Sudesh Kumar.
CHARGE:
3. On the basis of material available on record this court vide order dated 01.05.2012 framed charges against accused Manoj @ Mahender for the offence punishable u/s 363/366/376 IPC and against accused Sudesh for the offence punishable u/s 368/376 IPC to which accused persons did not plead guilty and claimed trial. PROSECUTION WITNESSES:
4. In order to prove its case prosecution has examined 05 witnesses namely PW1 Victim, PW2 Bimla Rani, PW3 Subhash, PW4 WASI Tejwati and PW5 HC Ram Avtar.
5. PW1 Victim who has been examined and she was cross examined on behalf of SC No.05/2012 State v. Manoj @ Mahender and another 2/15 accused Sudesh and her cross examination deferred on behalf of accused Manoj and thereafter, she could not appear. Hence, her statement is opened and same cannot be read in evidence.
6. PW2 Bimla Rani. This witness has brought the summoned record i.e. the admission and withdrawal register in respect of the victim and transfer certificate. This witness has deposed that victim was admitted in the school in the 6th standard on 19.04.2008. This witness has proved copy of relevant entry No.6225 of admission and withdrawal register vide Ex.PW2/A and as per this record, the date of birth of victim is 01.08.1997. This witness has proved copy of admission form in respect of victim vide Ex.PW2/B and copy of transfer certificate issued by MCD Primary School vide Ex.PW2/C.
7. In her cross examination by Sh. V.P. Tiwari, Ld. counsel for accused, this witness stated that no birth certificate of victim issued by MCD had been produced by her parents at the time of her admission in the school. This witness admits that the parents of victim had not produced any basic document regarding the date of birth of victim and they had not verified the correctness of date of birth of the victim from MCD Primary School.
8. PW3 Subhash is a material witness being complainant and father of victim. This witness has deposed that more than one and half years back, the victim who was studying in 9th standard had left for school at about 9:00 a.m. and she did not turn up and he had searched for the victim but she could not be traced. SC No.05/2012
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9. This witness has further deposed that on next day, he had reported the matter to the police and given his statement to the police and on the basis of said statement FIR of the present case was registered and after about one week, victim was recovered by the police. Victim was brought by the police from Aligarh and next day, the custody of victim was given to him vide memo Ex.PW3/A.
10.This witness has further deposed that accused Manoj present in court had kidnapped victim and taken her to Aligarh and accused Manoj was residing in his neighbourhood at the time when the victim was kidnapped.
11.This witness has further deposed that about 89 months back, the victim again went missing from his house and he had report the matter at police station Khajuri Khas.
12.In his cross examination by Sh. V.P. Tiwari, Ld. counsel for accused Manoj @ Mahender, this witness admits that school administration had not asked him regarding the documents pertaining to date of birth of victim. This witness further admits that the school administration had recorded the date of birth of the victim as per his version. This witness further admits that he had disclosed the less age of victim at the time of her admission in the school. This witness has stated that the friend of accused Manoj had told him that Manoj had kidnapped the victim and he cannot tell the name of the friend of accused Manoj. This witness had denied to the suggestion that the victim was more than 18 years of age on the day of incident or that the victim had accompanied accused of her own free will under the expectation SC No.05/2012 State v. Manoj @ Mahender and another 4/15 that she will lead a happy life with him or that he was against this relationship or that for this reason he had made a false report to the police in which he had stated the date of birth of victim wrongly as 14 years.
13.PW4 WASI Tejwati. This witness is the part I.O. of the present case. This witness has deposed that on 29.08.2011, she was posted with police station Khajuri Khas and on that day the investigation of this case was assigned to her and she had enquired from the victim about the name of the other accused but she could not tell. Thereafter, she had applied for the production of accused Manoj @ Mahender and int he meanwhile, the investigation of this case was assigned to S.I. Anuj Pawar.
14.During the course of investigation, on 21.09.2011 this witness had examined and recorded the statement of victim u/s 161 Cr. P.C. vide Ex.PW1/C and on 04.10.2011, she had sent the exhibits of this case to CFSL through Ct. Chander Shekhar and examined and recorded his statement and also that of the MHC(M) HC Bijlloren. This witness has submitted the CFSL results on record on 27.04.2013 vide Ex.PW4/A and PW4/B.
15.PW5 HC Ram Avtar. This witness is a formal witness being Duty Officer. This witness has deposed that on 21.08.2011 he was working as Duty Officer from 08:00 a.m. to 04:00 p.m. and on that day, the complainant namely Subhash S/o Janardan had come to police station at about 10:00 a.m. This witness had recorded the statement of Subhash and registered the present case u/s 363 IPC. This witness has SC No.05/2012 State v. Manoj @ Mahender and another 5/15 proved copy of FIR vide Ex.PW5/A.
16.In his cross examination by ld. defence counsel, this witness stated that he had asked for the proof regarding date of birth of the victim from the complainant and he had handed over the education board certificate of the victim to him wherein date of birth of victim is 01.08.1997 vide mark 'XX'.
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
17.As no incriminating has come on record against accused Sudesh. Hence, statement of accused Sudesh Kumar u/s 313 Cr. P.C. has been dispensed with.
18.After prosecution witnesses, statement of accused Manoj @ Mahender u/s 313 Cr. P.C. was recorded wherein accused had denied all circumstances and evidence were put to him and claimed to be innocent and have been implicated falsely in the present case. Accused has claimed that the prosecutrix has told that she is major and she with her consent with him and if she will not be taken along with him then she may go for suicide. Accused has not preferred to lead any D.E.
19.Thereafter, case was fixed for arguments.
ARGUMENTS:
20.Ld. APP for State argued that accused Manoj @ Mahender has been prosecuted u/s 363/366/376 IPC and accused Sudesh has been prosecuted u/s 368/376 IPC. SC No.05/2012
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21.Ld. APP for the State further argued that PW2 Subhash, complainant has supported the case of prosecution.
22.Ld. APP for State further submitted that official witnesses have also supported the case of prosecution. Hence, he has prayed to convict the accused persons namely Manoj @ Mahender and Sudesh under the section for which they had been charged.
23.On other hand ld. defence counsel for accused argued that since statement of victim is opened. Hence, same cannot be read in evidence.
24.Ld. counsel for accused has further argued that prosecutrix in her statement u/s 164 Cr.P.C. had not made any allegation against accused regarding rape.
25.Ld. counsel for accused has further argued that in cross examination father of victim admits that he had disclosed less age of victim at the time of her admission in the school.
26.Ld. counsel for accused has further argued that in her cross examination PW3 Bina Rani had admitted that she had not verified the correctness of date of birth of victim. On these grounds, ld. counsel for accused has prayed to acquit the accused persons. PERUSAL OF RECROD:
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27.Argument heard. Record perused. On perusal of record, it is revealed that present case has been registered on the statement of Subhash on 21.08.2011 on which FIR was registered for offence u/s 363 IPC wherein he had shown suspicion to some unknown person for taking away the victim.
28.It is further revealed that PW2 Bimla Rani, Sr. Teacher, has brought the summoned record i.e. the admission and withdrawal register in respect of the victim and transfer certificate and she has stated that victim was admitted in the school in the 6th standard on 19.04.2008. PW2 has proved copy of relevant entry No.6225 of admission and withdrawal register vide Ex.PW2/A and as per this record, the date of birth of victim is 01.08.1997. PW2 has also proved copy of admission form in respect of victim vide Ex.PW2/B and copy of transfer certificate issued by MCD Primary School vide Ex.PW2/C.
29.It is further revealed that during the course of investigation, on 21.09.2011 PW4 W SI Tejwati who is the 2nd I.O. had examined and recorded the statement of victim u/s 161 Cr. P.C. vide Ex.PW1/C and on 04.10.2011, she had sent the exhibits of this case to CFSL through Ct. Chander Shekhar and examined and recorded his statement and also that of the MHC(M) HC Bijlloren. PW4 has submitted the CFSL results on record on 27.04.2013 vide Ex.PW4/A and PW4/B.
30.It is further reveals that statement of victim u/s 164 Cr. P.C. had been recorded. SC No.05/2012
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31.Before reaching at any conclusion let the relevant sections i.e. 363, 366, 368 and 376 IPC be reproduced, which are as under : Section 363 IPC: "Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Section 366 IPC:
"Kidnapping, abducting or inducing woman to compel her marriage, etc - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to find, and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."
Section 368 IPC :
Wrongfully concealing or keeping in confinement, kidnapped or abducted person. Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines SC No.05/2012 State v. Manoj @ Mahender and another 9/15 such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement.
Section 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever,
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed;
or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii)on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him;
or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution' or
(d) being on the management or on the staff of a hospital, takes SC No.05/2012 State v. Manoj @ Mahender and another 10/15 advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) Commits rape on a woman when she is under twelve years of age; or
(g) Commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection.
Explanation 2 "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.]
32.PW3 Subhash who is the father of victim has appeared before court on 11.09.2012 and stated that victim was missing. Again on 17.10.2012 PW Subhash appear and states that victim is missing and in this regard he had lodged a report with police and Inspector J.S. Mehta was directed to file status report in this regard. SHO PS Khajuri Khas in compliance of order dated 17.10.2012 has filed status report stating SC No.05/2012 State v. Manoj @ Mahender and another 11/15 that on fact of missing of victim on 04.09.2012 a case vide FIR No.382/2012 u/s 363 IPC had been registered during the investigation. Sincerely efforts have been made to trace the prosecutrix and to arrest the accused persons but no clue had been found upto till date. An efforts are continue to arrest the accused and prosecutrix. Since then on each and every date of hearing PW Subhash stated that victim in the present case was not traceable.
33.On perusal of record, it is revealed that present case has been registered on 21.08.2011 on the statement of PW Subhash wherein he had shown suspicion to some unknown person for taking away the victim. It is further reveals that statement of victim u/s 164 Cr.P.C. had been recorded Ex.PW1/B. Since cross examination of victim is open. Hence, same cannot be read in evidence. Other witnesses are on the fact of age proof and recording of statement u/s 164 Cr.P.C. and duty officer.
34.PW2 Bimla Rani who is the Sr. Teacher, Govt. Girls Sr. Secondary School, Khajuri Khas, Delhi where victim had studied. PW2 states that victim was admitted in school in the 6th standard on 19.04.2008 and as per record date of birth of victim is 01.08.1997. In her cross examination by ld. counsel for accused Manoj @ Mahender, this witness submits that no birth certificate of victim issued by MCD had been produced by her parents at the time of her admission in the school. This witness admits that the parents of victim had not produced any basic document regarding the date of birth of victim. This witness further admits that they had not verified the correctness of date of birth of the victim from MCD Primary School.
PW3 who is the father of victim. This witness states that victim was studying in 9th SC No.05/2012 State v. Manoj @ Mahender and another 12/15 standard at the time of incident. More than one and half year back, at 9:00 a.m. victim had left for school and she did not turn up. He had searched the victim but could not traced. Thereafter, he made statement to the police and on his statement present FIR was registered.
35.From the perusal of record it is also reveals that this witness had stated that accused Manoj present in the court had kidnapped victim and taken her to Aligarh. In his cross examination, this witness admits that he had disclosed less age of victim at the time of her admission in the school. This witness further submits that friend of accused Manoj had told him that Manoj had kidnapped the victim. On this fact, this witness is hearsay. Further, this witness could not tell the name of that friend of accused Manoj.
36.PW Tejwati is 2nd I.O. This witness had recorded statement of victim u/s 161 Cr.P.C. Ex.PW1/C and she had sent the exhibits of this case to CFSL through Ct. Chander Shekhar and also recorded the statement of Ct. Chander Shekhar and HC Bijlloren, MHC(M).
37.Since it has come on record that statement of victim is open and that cannot be read in evidence and present case has been registered on the statement of PW3 who is the father of victim. Except this evidence there is no evidence on record which can be said to be proved against accused persons. Moreover, PW3 Bimla Rani who is school teacher and she has proved date of birth of victim as per school record and in her cross examination, this witness admits that the parents of victim had not SC No.05/2012 State v. Manoj @ Mahender and another 13/15 produced any basic document regarding the date of birth of victim. This witness had admitted that she had not verified the correctness of date of birth of the victim from MCD Primary School.
38.From the close scrutiny of aforesaid witnesses as discussed above no incriminating evidence could come on record against accused Sudesh. Hence, S.A. Had been dispensed with and accordingly, by exercising section 232 Cr.P.C. accused Sudesh is hereby acquitted from the charges u/s 368/376 IPC.
39.Further, in respect of accused Manoj @ Mahender, examination of victim is open and PW3 the father of victim could also not bring any record against accused Mahender to connect him with the present case or from the testimony of any of PWs confidence of this court may be inspired. Since it is a settled law that prosecution must prove its case against accused beyond reasonable doubt.
40.Accordingly, in the facts and circumstances of the case, arguments and perusal of record, case of prosecution does not inspire the confidence of this court to convict the accused persons. This court is of the firm opinion that prosecution have been failed to prove the charges under section 363/366/376 IPC against the accused Manoj @ Mahender beyond the reasonable doubt. Accordingly, this court acquit accused Manoj @ Mahender from the charges u/s 363/366/376 IPC by giving him benefit of doubt. Accused Manoj @ Mahender be released forthwith, if he is not required in any other case.
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41.In terms of section 437 A Cr. P.C., accused persons namely Manoj @ Mahender and Sudesh Kumar are directed to execute bail bond in sum of Rs.25,000/ each with one surety each in the like amount for the period of six months. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON THIS 17.05.2013 (RAMESH KUMARII) ASJ01/ North - East Karkardooma Courts, Delhi.
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