Delhi District Court
Sc No: 156/14 State vs . Amir on 7 July, 2015
SC No: 156/14 State Vs. Amir
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 156/14
FIR No. 335/14
Police Station Jahangirpuri
Under Section 363/366A IPC &
4 POCSO Act.
ID No. 02404R0-273022014
State
Versus
Amir
S/o Sh. Akbar Ali
R/o H-3/1483, Jahangirpuri, Delhi.
......Accused
Date of institution 07.08.2014
Judgment reserved on 07.07.2015
Judgment Pronounced on 07.07.2015
Decision Acquitted
Judgment 1 of 10
SC No: 156/14 State Vs. Amir
JUDGMENT
1. The FIR in question was registered on the complaint of father of prosecutrix alleging that on 06.05.2014 at about 9.30 AM, her daughter aged around 17 years went to C-Block market for some work but did not come back. He tried to trace out her but all in vain. He had apprehension that some unknown person had kidnapped his daughter.
2. On 09.05.2014, the prosecutrix (daughter of complainant) came to the police station and stated that she went to UP with Amir (accused) with her own will. The accused was then arrested and was charge-sheeted for the offence punishable U/s 363/366/376 IPC & 4 POCSO Act. The charge for the offence punishable U/s 363/366 IPC & 4 of POCSO Act was framed against the accused on 10.10.2014 to which accused pleaded not guilty and claimed trial.
Judgment 2 of 10
SC No: 156/14 State Vs. Amir
3. The prosecution has examined 3 witnesses.
4. PW1 is the prosecutrix and daughter of the complainant. She did not support the version of the prosecution. Prosecutrix deposed that she went to the village of the accused at village Hathras, UP of her own. She remained with the accused for two days at his native village Hathras, UP. Thereafter, she came back along with the accused and directly went to the PS Jhangirpuri. She proved her endorsement on the MLC wherein she refused for her internal examination as Ex. PW1/A. She also proved her statement recorded u/s 164 Cr.P.C. as Ex. PW1/B. She further stated that she resided with accused of her own will and she left her house herself. The accused neither kidnapped her nor seduced her to have illicit intercourse with him. The accused did not establish physical relations with her.
Judgment 3 of 10
SC No: 156/14 State Vs. Amir
5. PW2 is the father of the prosecutrix. He deposed on the lines of the complaint and proved his complaint as Ex. PW2/A. Further, in his examination he stated that his daughter went along with accused and has solemnized marriage with him.
6. PW3 SI Sangeeta is the IO. She recorded the statement of the prosecutrix and took her for her medical examination at BJRM Hospital and collected the MLC. She got recorded the statement of prosecutrix u/s 164 Cr.P.C. vide her application Ex. PW3/A. She arrested the accused and took his personal search vide memo Ex PX-2 & 3 and recorded his disclosure statement Ex. PW3/B. She obtained the birth certificates of victim. The certificate issued by the Principal of the school is Ex. PW3/D. As per the birth certificate of the prosecutrix issued by the MCD is Ex PW3/E as per which the prosecutrix was found to be born on 01.02.1997. She got conducted the potency test of the accused and proved potency report of the accused vide memo Ex PX-4.
Judgment 4 of 10
SC No: 156/14 State Vs. Amir
7. 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 and of the prosecutrix.
8. Arguments have been addressed by learned Additional PP as well as learned defence counsel.
9. I have heard the arguments and also perused the case file carefully.
10. Age of the Prosecutrix: In the present case, accused is alleged to have kidnapped the prosecutrix, a minor aged about 17 years and took her to Hathras with intent to compel her 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 Judgment 5 of 10 SC No: 156/14 State Vs. Amir of age, as on the date she went missing from her house, prosecution collected the School record of the prosecutrix as Ex. PW3/D and Birth Certificate of the prosecutrix issued by MCD as Ex PW3/E, wherein, the date of birth of the victim is mentioned as 01.02.1997. The defence does not claim that the prosecutrix was more than 18 years when she eloped with the accused. The date of birth of the prosecutrix indicates that she was less than 18 years of age when she eloped with the accused and hence she is a 'child' within the meaning of Section 363/366 IPC & POCSO Act.
11. 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. Let us consider the testimony of the prosecutrix to find out whether the accused has committed the said offences.
Judgment 6 of 10
SC No: 156/14 State Vs. Amir
12. Testimony of prosecutrix: The prosecutrix
categorically deposed that she was knowing the accused for last 5-6 years. She went to the village of the accused and stayed there with the accused. There is no evidence on record that she was enticed by the accused, in any manner, to go with him. Rather she deposed that she herself went to the village of the accused. 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.
13. 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 Judgment 7 of 10 SC No: 156/14 State Vs. Amir 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. ...."
14. 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. 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."
15. 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 appears that prosecutrix was willing and consenting party Judgment 8 of 10 SC No: 156/14 State Vs. Amir and it is evident that everything has happened with her will. In these circumstances, the factum of kidnapping of prosecutrix does not stand proved.
16. 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.
17. Moreover, the prosecutrix has categorically deposed that the accused did not establish physical relationship with her. There is no medical evidence on record to prove the factum of physical relationship between the accused and the 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.
Judgment 9 of 10
SC No: 156/14 State Vs. Amir
18. Thus, in the light of the evidence recorded the allegations against the accused are not proved. Accordingly, the accused stands acquitted for the offence punishable U/s 363/366 IPC and U/s 4 POCSO Act. The 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 7th July, 2015.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
07.07.2015
Judgment 10 of 10
SC No: 156/14 State Vs. Amir
07.07.2015
Present : Ms. Suchitra Singh Chauhan, Ld. Substitute Addl. PP for the State.
Accused on bail with counsel Sh. Aman Saroha 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 and U/s 4 POCSO Act. The 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
07.07.2015
Judgment 11 of 10