Delhi District Court
Page Numbers State vs . Rakesh @ Vicky on 29 January, 2010
Page numbers State Vs. Rakesh @ Vicky
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE: SOUTH EAST-02
NEW DELHI
IN RE: Sessions Case No. 53/09
FIR No. 163/08
PS Sarita Vihar
U/s 363/376 IPC
State Vs. Rakesh @ Vicky
S/o Sh. Ramesh Kumar
R/o E-520, Kallu Ka Makan,
Village Nithari, Sector-31,
Noida, UP
________________________________________________________________
Date of institution: : 05.08.08
(received on 15.01.2009)
Date when the case was fixed
for orders : 19.01.2010
Date of judgment : 29.01.2010
JUDGMENT
The prosecution case, in brief, is as follows:-
On 30.01.2008 at about 12.10 pm one Durga Prasad, father of the prosecutrix, came to Police Post Madan Pur Khadar and lodged a missing report for her daughter aged about 14 years stating that she had left the house on 29.01.2008 at about 6.40 pm and has not returned since then. In this complaint, he gave the description of the girl but did not express suspicion on any person. The inquiry in this regard was handed over to SI D. P. Singh. On 18.03.08, SI D. P. Singh sent the Page numbers State Vs. Rakesh @ Vicky rukka stating that complainant Durga Prasad has expressed his suspicion regarding missing of his daughter on a boy namely Vicky. SI D. P. Singh recommended the registration of the case under Sec. 363 IPC vide rukka Ex. PW 6/A and accordingly FIR Ex. PW 1/A was registered.
2. On 26.03.08, the prosecutrix was recovered and her medical examination was, thereafter, conducted at AIIMS Hospital and the investigation was assigned to ASI Manju who produced the prosecutrix before the Magistrate for recording her statement under Sec. 164 Cr.PC on 28.03.08 and after her statement was recorded, the prosecutrix was sent to Nirmal Chaya. The exhibits which were collected after the medical examination of the prosecutrix and the accused, who was arrested on 27.03.08, were sent to FSL. The prosecutrix was also subjected to Bonny Age Test which opined her age between 15.3 years to 15.8 years. It may be pertinent to mention here that the school record regarding the date of birth of the prosecutrix was also collected from the Principal, MCD, Primary School, Sant Nagar which shows that the age of the prosecutrix was less than 15 years on the date of commission of the offence and her date of birth was shown as 15.03.1993. On the basis of this material collected during the investigation, Sec. 376 IPC was also added and the charge sheet was filed accordingly in the Court.
3. On 04.02.09, accused was charged for the offence punishable under Sec. 363/376 IPC to which he pleaded not guilty and claimed trial.
Page numbers State Vs. Rakesh @ Vicky EVIDENCE
4. To prove its case, prosecution has examined as many as seven witnesses in this case.
4.1. PW 1 is HC Prem Chand, who was the Duty Officer on 18.03.08 and had registered the FIR Ex. PW 1/A. 4.2. PW 2 Sh. Durga Prasad is the complainant in this case. He deposed that he had four sons and one daughter i.e, prosecutrix. He deposed that on 19.01.08 the prosecutrix had left the house without telling any family member and on 30.01.08 he lodged a missing report at Police Post Madan Pur Khadar. The police official searched for his daughter, however, she could not be traced. Thereafter, he had made suspicion on the accused Vicky. He further deposed that after three months, his daughter gave him a call on telephone and he called her at home pursuant to that the prosecutrix came along with accused and he, thereafter, informed the police. The prosecutrix was medically examined and, thereafter, produced before the Ld. Magistrate and was sent to Nirmal Chaya. He further deposed that he had given the copy of the certificate of MCD, Primary School, Sant Nagar regarding the date of birth of his daughter and he categorically deposed that date of birth of his daughter i.e, prosecutrix, is 15.03.1993.
4.3. PW 3 is Ct. Satish Kumar, who was posted at Police Station Sarita Vihar as DD writer on 30.01.08 and had taken down the statement Page numbers State Vs. Rakesh @ Vicky of the complainant Durga Prasad vide DD no. 13 regarding missing of his daughter. He has proved this DD entry Ex. PW 3/A. 4.4. PW 4 is Shaqil-Ur-Rehman, Principal, MCD, Primary Girls, School, Sant Nagar, New Delhi, who produced the record pertaining to the date of birth of the prosecutrix. He deposed that as per the school record, date of birth of the prosecutrix is 15.03.1993. He has placed on record the copy of the register as well as certificate issued by him Ex. PW 4/A and Ex. PW 4/B respectively.
4.5. PW 5 is the prosecutrix. She is not supporting the prosecution case in any manner. So far as, the offence of kidnapping was concerned, she stated that she had got married with the accused on 12.02.08 and at that time she was 16 years of age. It may be pertinent to mention here that when she was deposing in the Court she had given her age 18 years. So, even if the age as given by the prosecutrix is considered, she was minor even on the date when the offence was allegedly committed. To a specific query by the Court, she stated that she does not know about the year of her birth and her father may be knowing about the same. She stated that she had got married with the accused and she was not induced by the accused in any manner. Rather she had forced him to take here along with him despite his reluctance. She stated categorically that accused did not commit rape upon her and they lived as husband and wife.
Page numbers State Vs. Rakesh @ Vicky 4.6. PW 6 is SI D. P. Singh, who was the initial Investigating Officer of the case.
4.7. PW 7 is WASI Manju, who is the Investigating Officer in this case. She has placed on record the Bonny Age Test report of the prosecutrix Ex. PW 7/F.
5. The accused was confronted with the evidence against him when examined under Sec. 313 Cr.PC, he stated that he has been falsely implicated in this case by the father of the prosecutrix. He further took the defence that it was the prosecutrix who had taken him to UP and got married with him.
6. I have heard the arguments adduced by Ld. Counsel for the accused as well as Ld. Addl. PP for State and perused the evidence carefully.
7. Before, I proceed further, I would refer to the statement of the prosecutrix under Sec. 164 Cr.PC Ex. PW 5/A. In this statement also, the prosecutrix does not say anywhere that she was forced or induced or enticed away by the accused. In this statement, she had stated that she herself called the accused and had accompanied him. She further stated that they had gone to Bareilly and from there they proceeded to Badayu where they got married on 12.02.08 and from Badayu they went to Hasanpur. She stated that she herself had gone with the accused and got married with him. She further stated that she was 18 years of age Page numbers State Vs. Rakesh @ Vicky and wanted to live with her husband i.e, accused Rakesh @ Vicky. Despite this statement which was obtained during the investigation, the charge sheet was filed for the offence under Sec. 363/376 IPC. I would like to mention here that when the prosecutrix had stated in her statement under Sec. 164 Cr.PC that she had got married with the accused at Badayu through a Court marriage, the Investigating Officer should have made further inquiry into this matter to obtain the record of the Court marriage so that the charge sheet could have been filed under appropriate provision of law. When the prosecutrix had stated that she got married with the accused with her own free will in Court at Badayu and the accused also endorsed this fact, this Court does not see any reason to disbelieve them as the prosecution has not placed anything on record to disbelieve their statement.
8. Before, I proceed further, it would be appropriate to refer to the relevant provisions of law for which the accused has been charged. The accused has been put to trial for the offence punishable under Sec. 363/376 IPC and a quick glance on the relevant provisions would be helpful.
Section 361 IPC define what is 'kidnapping' and it reads as under:-
" Sec. 361 IPC - Kidnapping from lawful guardianship - whoever takes or entices any minor under 16 years of age if a male, or under 18 years of age Page numbers State Vs. Rakesh @ Vicky 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".
Section 363 IPC provide punishment for offence of kidnapping. It reads as under:-
"Sec. 363 IPC: Punishment for kidnapping - 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".
Rape is defined in Sec. 375 IPC as under :
" Rape: A man is said to commit 'rape' who, except in the cases, hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :
First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man known that he is not her husband, and that her Page numbers State Vs. Rakesh @ Vicky consent is given because she believes that he is another man to whom she is or believes her to be lawfully married.
Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly - With or without her consent, when she is under sixteen years of age.
Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
9. As I have observed above that the prosecutrix in her statement stated that she got married with the accused with her own free will and consent, the question before the Court would be whether any offence under Sec. 376 IPC is made out or not?
10. As per the Hindu Marriage Act (herein after referred as the Act), one of the condition for Hindu Marriage would be that the Page numbers State Vs. Rakesh @ Vicky bridegroom must complete the age of 21 years and the bride must complete the age of 18 years at the time of marriage by virtue of Sec. 5 of the Act. The Act further define which is void marriage and which marriage can be declared void and annulled by a decree of nullity. The relevant provisions are as follows:-
" Sec. 11 - Void Marriages - Any marriage solemnized after the commencement of this Act shall be null and void any may, on a petition presented by either party thereto [ against the other party], be so declared by a decree of nullity if it contravenses any one of the conditions specified in clauses (i), (iv) and (v) of Section 5".
12. Voidable Marriages - (1) Any marriages solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
[ (a) that the Marriage has not been consummated owing to the impotence of the respondent; or
(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner { was required under Sec. 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)}, the consent of Page numbers State Vs. Rakesh @ Vicky such guardian was obtained by force {or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or
(d) that the respondent was at the time of the marriage pregnant by time person other than the petitioner".
11. I refer specifically to Hindu Marriage Act because the prosecutrix and the accused presumably belong to Hindu religion. Sec. 11 of the Act speaks about certain marriages which are considered to be void and Sec. 12 of the Act deals with voidable marriages. Neither of these sections says that any marriage in contravention of the condition of age as provided under Sec. 5 of the Hindu Marriage Act will be void or voidable. However, it is Sec. 18 of the Act which says that a person who procures a marriage of himself or herself in contravention of the conditions specified in clause (iii) of Sec. 5 i.e, the condition of age, shall be liable for imprisonment for 15 days or with fine or with both. Thus, the Act has prescribed the minimum age of marriage but violation of this provision does not render the marriage void or voidable. This view was taken by the Hon'ble High Court of Delhi in Ravi Kumar Vs. State and Anr 2005 (4) RCR (Civil) 831 (Delhi) and Phoola Devi Vs. State and Ors 2005 VIII AD (Delhi) 256. Same view was also taken in Manish Singh Vs State (Govt. of NCT of Delhi) and Ors 2006 (1) RCR Criminal 653. In the present case, if the prosecutrix and the accused say that they have got married and the prosecution has not placed anything on record to the contrary, I do not see any reason to disbelieve them. So, when the marriage between both of them is accepted, then question is whether Page numbers State Vs. Rakesh @ Vicky Sec. 376 IPC will be applicable or not? "Sec. 375 Exception of the Penal Code says that any sexual intercourse by a man with his own wife, wife not being under 15 years of age, is not rape.
12. Now, I come to the question of age of the prosecutrix. The prosecution placed on record two sets of evidence, one is the school record which shows that age of the prosecutrix was less than 16 years on the date of commission of alleged offence and her date of birth is shown as 15.03.1993. The other evidence is the Bonny Age Test which says that the prosecutrix was more than 15.3 years and less than 15.8 years on the date i.e, 26.03.08, when she was examined. The prosecutrix says that she had got married with the accused on 12.02.08 at Badayu. If the Bonny Age report is accepted then the age of the prosecutrix would be more than 15 years on the date of marriage i.e, 12.02.08. This, I say because in the Bonny Age report the prosecutrix has been shown to be more than 15.3 years of age on 26.03.08. Meaning thereby, she completed the age of 15 years in December, 2007.
13. The settled position of law is that the accused is entitled for the benefit of the interpretation of the evidence which is in his favour. Although, the school certificate is considered to be the best evidence with regard to the age of a child but there must be something to show the basis on which the entry with regard to the date of birth is mentioned in the school record. In the present case, the father of the prosecutrix deposed that the date of birth of the prosecutrix is 15.03.1993 and the same date of birth is mentioned in the school record.
Page numbers State Vs. Rakesh @ Vicky However, it is not clear on what basis this date of birth was mentioned in the school record. PW 4 Shaqil-Ur-Rehman, who has brought the school record, stated in the cross-examination that as per the school record, the birth certificate of the prosecutrix was placed on file which was issued by the MCD but no such birth certificate issued from the MCD has been shown to the Court nor it was available in the school record which was produced by the witness. Although, when the parent of a child depose about the date of birth, it should be believed to be correct but the Court cannot ignore the realities of our social life. It is a general perception that whenever a child is admitted in the school without any birth certificate from the municipality, parents give such date of birth which is found suitable for getting admission in the school. Generally, it has been observed that in the absence of any documentary proof, the admission is given on the basis of affidavit of the parents. In such a situation, there are chances that the age on the lower side is mentioned by the parents to secure admission in the school. Though, it is not a rule that every time the parents give age on the lower side at the time of admission of the child but it generally happens.
14. In the present case also, the possibility cannot be ruled out that the age of the prosecutrix was mentioned on the lower side at the time of her admission in the school because there is no birth certificate from the MCD showing the date of birth of the prosecutrix. At the same time, there is a Bonny Age report which says that the prosecutrix was between 15.3 years to 15.8 years on 26.03.08. Thus, there is every possibility that on 12.02.08 when prosecutrix, as per her statement, married with Page numbers State Vs. Rakesh @ Vicky the accused, she was more than 15 years of age. If that is the case then by virtue of Sec. 375 Exception IPC, the accused cannot be held liable for the offence under Sec. 376 IPC. Moreover, no evidence has come on record which suggest that the accused has physical relation with the prosecutrix. In her statement in the Court, PW 5 prosecutrix has stated that they lived as husband and wife. It does not necessarily mean that they had also a physical relation as the prosecutrix does not say that marriage was consummated. Though, generally it will be presumed that when a man and woman are living as husband and wife, they have physical relation as well.
15. Now, I come to the question of the applicability of Sec. 363 IPC. Sec. 363 IPC provide punishment for the offence of kidnapping. The necessary ingredients of the offence of kidnapping which prosecution has to prove are; the taking or enticing away of a minor; that such minor must be under 16 years of age, if male and under 18 years of age, if female; that their taking or enticing must be "out of the keeping of the lawful guardian" and such taking or enticing must be "without the consent of such guardian".
16. The crucial word which have been used in Sec. 361 IPC, which defines kidnapping, are 'takes' or 'entices'. The distinction between the two can be expressed by saying that the mental state or mental attitude of the minor is not of relevance when we talk of 'taking'. The work 'takes' in common parlance and its simple meaning would convey to 'cause to go', 'to escort' or 'to get into possession'. Thus, when an Page numbers State Vs. Rakesh @ Vicky offender take a minor with him whether she is willing or not, the act of 'taking' is completed. The word 'entices', however, convey and involve some idea of inducement by generating hope or desire in the other person e.g., one say A has enticed B, it would mean that A has generated some hope or desire in the mind of B to do an act which B would not do otherwise. Thus, the word 'entices' involve an idea of inducement or allurement by giving rise to hope and desire to other person. This can be in many forms. The enticement may be on the spur of the moment or it may be working on the mind of the other person for a long time gradually and continuously ultimately resulting in achieving its ultimate purpose.
17. Thus, Sec. 363 IPC would be applicable when the offender 'takes' or 'entices' away a minor out of the keeping of her lawful guardian without the consent of the guardian. So, the prosecution has to prove first; the taking or enticing away of a minor; secondly such taking or enticing out of the keeping of the lawful guardian and thirdly; it must be without the consent of guardian. I would state here that consent of a minor would be immaterial. Only the consent of a guardian can take the act out of purview of Sec. 361 IPC.
18. Ld. Counsel for the accused argued that Sec. 363 IPC is not applicable in this case because the girl herself had left the custody of her parents and there was no inducement or enticement from the accused. He argued that the girl had attained the "age of discretion", therefore, if she leaves her parent's house on her own violation without any Page numbers State Vs. Rakesh @ Vicky inducement or enticement or promise from the accused, the offence of kidnapping will not be made out. He relied upon the judgment in Ruksana and Anr Vs. Govt. of NCT of Delhi 2007 [2] JCC 1401 in support of his contentions. I have gone through this judgment wherein reference to certain other judgments like S. Vardarajan Vs. State of Madras 1965 SCR (1) 243 and Prakash Vs. State of Haryana AIR 2004 SC 227, has been made apart from certain other judgments. These judgments would refer to concept of "age of discretion". What is the "age of discretion" is although not defined anywhere but "age of discretion" would be when a child is on the 'verge of attaining majority'. If a girl who is about 16 years or more than that or about 17 years of age or near about 18 years of age, one can safely say that the girl child has attained the 'age of discretion' having reached the "verge of attaining majority". However, a girl who is just 15 years of age would be too young to say that she has attained the 'age of discretion'. In the case Ruksana and Anr Vs. Govt. of NCT of Delhi (Supra) on which Ld. Counsel for the accused has placed reliance, the girl was 16.6 years old on the date of incident and she had voluntarily left the protection of her lawful guardian. Therefore, the FIR registered in the said case was quashed by the Hon'ble High Court. However, in the present case, the age of girl is just 15 years and this age cannot be considered as the age of discretion because the girl is not on the verge of attaining majority.
19. Coming back to Sec. 363 IPC, it may be that accused did not induced or enticed away the prosecutrix but he has definitely 'taken' the prosecutrix out of the keeping of her lawful guardian. Here, the consent Page numbers State Vs. Rakesh @ Vicky or the willingness of the girl child is of no consequence. Sec. 363 IPC does not speak about the willingness of the child, it lays emphasis on the consent of the lawful guardian. The consent of the minor is, therefore, immaterial and it is only the consent of lawful guardian which can take the act of such "taking" of the child out of the keeping of the lawful guardian, out of the purview of Sec. 361 IPC which defines kidnapping from lawful guardian. Since, the evidence on record clearly says that the prosecutrix went with the accused without the consent of her lawful guardian and the accused took her out of the keeping of her lawful guardian, he is liable for the offence punishable under Sec. 363 IPC only. PW 2 Durga Prasad, who happens to be the father of the prosecutrix, although admit that his daughter had left the house with her own free will but he nowhere stated that he had given any consent for taking her out of his keeping.
20. Therefore, in view of the evidence on record, I am of the considered view that prosecution has successfully proved its case against the accused only for the offence punishable under Sec. 363 IPC. Hence, accused is acquitted for the charge under Sec. 376 IPC and is held guilty for the offence punishable under Sec. 363 IPC and convicted accordingly.
Announced in open court ( AJAY KUMAR KUHAR )
Dated: 29.01.2010 Addl. Sessions Judge:South East-02
New Delhi
Page numbers State Vs. Rakesh @ Vicky
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE: SOUTH EAST-02
NEW DELHI
IN RE: Sessions Case No. 53/09
FIR No. 163/08
PS Sarita Vihar
U/s 363/376 IPC
State Vs. Rakesh @ Vicky
S/o Sh. Ramesh Kumar
R/o E-520, Kallu Ka Makan,
Village Nithari, Sector-31,
Noida, UP
ORDER ON SENTENCE
Arguments on the point of sentence have been heard from Ld. Addl. PP for State as well as Ld. Counsel for the convict.
"Sentencing is a crucial strategy of Criminal Law in achieving social defence and re-socialization of the offender. Sentencing is a facet of social justice. None can dispute the need to humanize sentencing as a tool of reformation. If the social pressure compels a Court to take cognizance of the society's cry for retribution where the offence is committed in a diabolic and a brutal manner of a magnitude where the conscience of the society is revolted, the same social sanction has a catalyst - to respect the worth of personhood and the right of a human being in its residual human essence".
These were the observations of Hon'ble High Court of Delhi in State Vs. Raj Kumar Khandelwal 2009 IV AD (DELHI) 691.
Page numbers State Vs. Rakesh @ Vicky
2. Ld. Addl. PP for State submitted that the incident of this nature are increasing day by day. Therefore, the convict may be given appropriate sentence so that the message is sent across in the society that run away marriages in tender age is not acceptable by law.
3. Ld. Counsel for the convict submits that the convict and the prosecutrix in this case have married with their free will. Although, it is conceded that it is in violation of the condition of age as prescribed in Sec. 5 of Hindi Marriage Act. Ld. Counsel also informed that the prosecutrix, who is present in person in court today, is residing with the parents of the convict. This fact is endorsed and confirmed by the prosecutrix.
4. The convict has remained in custody since the date of his arrest. Although, the offence under Sec. 363 IPC stands proved against him but still the fact remains that prosecutrix has willingly solemnized married him in Court and is still willing to lead her life with the convict. Therefore, I do not feel justified to further increase the incarceration of the convict and I am of view that the period of custody which he has already undergone during the investigation and trial of the case, is sufficient to meet the ends of justice. As per the conviction slip, convict is in custody in this case since 27.03.2008. Therefore, I award the following sentence to the convict:
" The convict is sentenced to period of imprisonment for the period of custody which he has already Page numbers State Vs. Rakesh @ Vicky undergone during the investigation and trial of the case for the offence under Sec. 363 IPC and is further sentenced to pay a fine of Rs. 500/- in default to undergo SI for 7 days".
5. Committal warrants be prepared accordingly. Copy of the judgment and order on sentence be given to the convict free of cost. File be consigned to record room.
Announced in open court ( AJAY KUMAR KUHAR )
Dated: 30.01.2010 Addl. Sessions Judge:South East-02
New Delhi