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Delhi District Court

Fir No. 193/08. State vs . Rahul @ Ram Page 1 Of 11 on 1 April, 2011

   IN THE COURT OF SH. RAVINDER DUDEJA : ADDL. SESSIONS
                 JUDGE-03:NW:ROHINI:DELHI

SESSIONS CASE NO. 205/09.

                                                 FIR No. 193/08.
                                                 P.S. Model Town.
                                                 U/S: 363/366/376 IPC.

                    State
                                            Versus

                    Rahul @ Ram, S/o Jagdish Madan,
                    (Ram Prakash), R/o H. No. 10,
                    Priyadarshini Vihar, Phase-II,
                    Delhi.

Date of Institution                     :   15.10.2008.
Date of Argument                        :   26.02.2011.
Date of Judgment                        :   01.04.2011.


JUDGMENT

1. Prosecution case is that on 22.06.2008, complainant Jasbir Singh came at police station and gave his statement Exbt. PW-1/A that his daughter Kumari "N" (name withheld) aged about 15 ½ years had gone to market on 21.06.2008 at about 6.30 pm but did not return back. He suspected that accused Rahul had enticed away his minor daughter. On the statement of the complainant, FIR was registered under Section 363 IPC. On 02.07.2008, prosecutrix was recovered from accused from Nanak Piao Gurudwara, GTK Road. She was got medically examined. Her statement was got recorded under Section 164 Cr. PC wherein she stated that accused Rahul was her friend and she and accused had promised to marry each other and when she FIR No. 193/08. State Vs. Rahul @ Ram Page 1 of 11 sought permission from her mother and sister, they refused on the ground that the boy was a Hindu. When she insisted, they stopped her movement outside the house. She further stated that when she had gone to market to purchase medicines for her mother, she purchased some sleeping pills. She thereafter met accused and told him that she would not go back to her house and would commit suicide by taking sleeping pills. She also asked accused to take her along with him. At her asking, accused took her on his bike. They spent the night in a hotel near Jhandewalan Temple. On 22.06.2008, they went to Palam Pur, Himachal Pradesh where they stayed together in a hotel. When she contacted her father on telephone, she was told that her mother was not well. On hearing this, she and accused came back to Delhi. She was left by accused near Gurudwara from where, her father and police took her to Police Station Model Town. At the asking of the police, she called the accused at Police Station where after he was arrested. She further stated that before going to hotel on 21.06.2008, she and accused had got married at Kirpal Bagh. She also stated that she had gone with accused with her own consent and that accused was innocent. The exhibits were sent to CFSL, Rohini. On completion of investigation, charge sheet was filed against accused under Section 363/366/376 IPC.

2. After compliance of Section 207 Cr. PC, the case was committed to Sessions Court. Charge under Section 363/366/376 IPC was framed against the accused to which, he pleaded not guilty.

3. In order to prove its case, prosecution examined 15 witnesses. PW-1 is Jasbir Singh. He is the complainant. He proved the statement which he gave to the police as Exbt. PW- 1/A. He stated that on 02.07.2008, accused left his daughter at Nanak Piao Gurudwara from where she was recovered by the police. She was then taken to police station. She was asked by the police officials to call the accused. She telephonically called the accused to police station and when accused came at the police station, he was arrested by the police. He produced the birth certificate of the prosecutrix which is Exbt. PW-1/B. In reply to a leading question put by the learned APP, he admitted that his daughter had telephoned Rahul who informed her that he was standing at Nanak Piao Gurudwara but denied that accused was arrested from the Gurudwara.

PW-2 is HC Naresh Kumar, Duty Officer. He proved the FIR Exbt. PW-2/A. PW-3 is Kumari "N". She stated that her father wanted to marry her with a man who was much elder to her and that on 21.06.2008, she herself went with accused and got married him at Kiral Bagh Ashram. She further states that the marriage was performed with her consent. After her marriage, they went to Palam Pur, Himachal Pradesh and resided in a hotel but were not keeping any physical relationship. She further stated that after residing there for 12 days, they came back to Delhi. She telephonically informed her father about the marriage. Her father told her that her mother was not well. When she went at her father's house, her father took her to police station. She further deposed that she gave statement under Section 164 Cr. PC which FIR No. 193/08. State Vs. Rahul @ Ram Page 3 of 11 is Exbt. PW-3/A. She was declared hostile and was cross examined by the learned APP. She admitted that she knew the accused since about 2-3 months prior to 21.06.2008 and was having love affair with him. She admitted that after marriage, she wore Chura but denied that she and accused resided as husband and wife in a hotel at Delhi and also at Palam Pur.

PW-4 is Sh. Braham Prakash, Sub Registrar (Birth & Death), MCD. He produced the birth record of the prosecutrix. He stated that as per record, the date of birth of female child of Jasbir Singh and Amrit Kaur is 11.12.1992 and that Exbt. PW-1/B is her original birth certificate issued by the Sub Registrar.

PW-4 SI Ricch Pal has been wrongly numbered as PW-4. He is the IO. He had made the endorsement Exbt. PW-4/A on the statement of complainant Jasbir Singh, on the basis of which, Duty Officer recorded the FIR. He stated that on 02.07.2008, accused was apprehended outside Nanak Piao Gurudwara and prosecutrix was recovered from his custody at the instance of the complainant. Accused was then arrested vide memo Exbt. PW-4/B and his personal search was conducted vide memo Exbt. PW-4/C. He then prepared the recovery memo of the prosecutrix which is Exbt. PW-4/D. He recorded the statement of prosecutrix under Sectionn 161 Cr. PC. Accused and prosecutrix were then got medically examined from Hindu Rao Hospital. The exhibits were seized from the hospital vide memos Exbt. PW-4/E and Exbt. PW-4/F. He had filed an application for getting the statement of prosecutrix recorded under Section 164 Cr. PC. After statement, prosecutrix was released to the custody of her father by the court. Pullandas were sent to FSL. In reply to a leading FIR No. 193/08. State Vs. Rahul @ Ram Page 4 of 11 question put by the learned APP, he admitted that initially, only the prosecutrix was found at Nanak Piao Gurudwara and was taken to police station. He admitted that on the telephone call given by the prosecutrix, accused informed that he was at Nanak Piao Gurudwara from where he was arrested.

PW-5 is Dr. Shipla. She had examined the prosecutrix and after initial examination, referred her for gynae examination. She proved the MLC Exbt. PW-5/A. Constable Subhash has been wrongly numbered as PW-5. He took the accused to Hindu Rao Hospital for medical examination. After medical examination, he collected the sealed pullanda bearing the seal of HRH and the sample seal from the doctor which was later seized by the IO vide memo Exbt. PW-4/F. PW-6 is Constable Shri Bhagwan. He is the witness of recovery of prosecutrix and the arrest of accused.

PW-7 is Woman Constable Sushila. She had taken the prosecutrix to hospital for her medical examination. She collected the exhibits from the doctor and gave the same to IO.

PW-8 is HC Jagdish. He had deposited the exhibits at FSL Rohini.

PW-9 is HC Rajiv Kumar, the then MHCM. He produced Register No. 19 and proved the relevant entry of the register as Exbt. PW-9/A. PW-10 is Dr. Ruchi Bajaj. She had conducted the gynae examination of the prosecutrix. She stated that the hymen of prosecutrix was torn but the patient gave no history of sexual assault. She collected the vaginal smear and undergarments and FIR No. 193/08. State Vs. Rahul @ Ram Page 5 of 11 sealed them. According to her, patient did not allow her internal examination.

PW-11 is Sh. Ashish Aggarwal, MM. He had recorded the statement of prosecutrix under Section 164 Cr. PC.

PW-12 is Dr. J.K. Ujjainia from Hindu Rao Hospital. He proved the MLC of the accused as Exbt. PW-12/A. PW-13 is V. Sankara Narayanan, Senior Scientific Assistant, FSL. He proved the biological report Exbt. PW-13/A and serological report Exbt. PW-13/B.

4. Statement of accused was recorded under Section 313 Cr. PC wherein he stated that prosecutrix was not happy with her parents who wanted to marry her with a boy in Canada. She herself came at his house with sleeping pills and told that she does not want to go back to her house and asked him to take her along otherwise she would take the pills. He therefore took her with him. He stated that they stayed at Palam Pur, Himachal Pradesh but had no relations of husband and wife. They slept in separate rooms. He further stated that now they have been residing as husband and wife and having a female child aged more than an year. He refused to lead any evidence in his defence.

5. I have heard arguments from Sh. Anil Kumar, learned Additional PP and Sh. Rambir Singh, advocate for the accused and have also gone through the records of the case. Prosecution has built up its case on the basis that prosecutrix was 15 ½ years old at the time of incident. Since she was less than 18 years of FIR No. 193/08. State Vs. Rahul @ Ram Page 6 of 11 age therefore, she was not in a position to give consent to the accused to take her away from the custody of her parents. Prosecution has relied on the statement of father of prosecutrix as also on her birth certificate to prove her age.

6. The defence has argued that prosecutrix was major at the relevant time. It is stated that prosecutrix has given her age as 21 years at the time of her testimony in court. She gave her date of birth as 11.12.1989 and stated that her parents had given incorrect age in the birth certificate. It is thus argued that prosecutrix did not require the consent of her parents to accompany the accused. She voluntarily had gone with accused and therefore it is not a case of kidnapping.

7. In the cases of offences of kidnapping and rape, the prime question for consideration always remains the age of the prosecutrix. The prosecution has relied on the birth certificate of the prosecutrix. Sub Registrar (Birth & Death) has proved the birth certificate Exbt. PW-1/B and as per birth certificate, the date of birth of prosecutrix is 11.12.1992. As per MLC of prosecutrix Exbt. PW-5/A, her age is mentioned as 15 ½ years. Dr. Ruchi Bajaj in cross examination stated that patient herself gave her age as 15 ½ years. In her statement under Section 164 Cr. PC, in reply to a general question put by the learned MM, prosecutrix gave her age as 15 ½ years. There is no basis with the prosecutrix when she states that her parents had got recorded her incorrect age in the birth certificate. There is no reason to disbelieve the age of prosecutrix given in her birth certificate Exbt. PW-1/B. The court FIR No. 193/08. State Vs. Rahul @ Ram Page 7 of 11 shall therefore prefer the date of birth as mentioned in the municipality certificate in preference to the age given by the prosecutrix herself for the first time in court. Thus, the age of the prosecutrix was 15 ½ years at the time of the alleged occurrence.

8. In her testimony, prosecutrix has categorically stated that she and accused had no physical relationship with each other during the period when they stayed together in hotels. She denied the suggestion that she and accused had resided as husband and wife in hotels at Delhi and Palam Pur. The learned APP submits that medical evidence proves that hymen of prosecutrix was torn and therefore there is sufficient evidence to prove that accused had sexual relations with the prosecutrix. There is no merit in the submission of the learned APP, in as much as, the hymen may get torn due to many other reasons. Moreover, the MLC does not show that it was an old or fresh torn. Since prosecutrix herself has denied that there was any physical relationship between her and the accused, in my view, prosecution has failed to prove the charge of rape against the accused.

9. The learned APP has argued that once it is proved that the prosecutrix was less than 18 years of age, accused can be convicted for the offence under Section 366 IPC as the consent of a minor is no consent in the eyes of law. Section 361 IPC defines kidnapping. The gravaman of this offence lies in the taking or enticing of a minor under the age specified in that Section, out of the keeping of lawful guardian without the consent of such guardian. In the case of S. Varadarajan Vs. State of Madras AIR FIR No. 193/08. State Vs. Rahul @ Ram Page 8 of 11 1965 Supreme Court 942, the Hon'ble Supreme Court held that there is a distinction between "taking and allowing a minor to accompany a person. The two expressions are not synonymous though it cannot be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 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 persons, the accused cannot be said to have taken her away from the keeping of her lawful guardian. 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. In the present case, prosecutrix has stated that she herself went with the accused and married with him at Kirpal Bagh Ashram and the marriage was performed with her consent. She stayed with the accused in the hotels with her consent. She was aged about 15 ½ years and therefore had the capacity to know the full import of what she was doing. The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of accused for which the desire of accompanying him wherever he went is of course implicit. Under these circumstances, no inference can be drawn that accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him.

10. In the case of S. Varadarajan (Supra), it has been further held that it would, however, be sufficient if the prosecution establishes that though immediately prior to the minor 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. If the 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 or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. The Hon'ble Court further held that no doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl but that part 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".

11. In the present case also, there is no evidence to establish that accused at any stage prior to the prosecutrix leaving her father's protection had played any active part or had solicited or persuaded her to do so and therefore the act of the accused does not tantamount to "taking".

12. Prosecutrix has deposed that she and accused had got married on 21.06.2008 at Kirpal Bagh Ashram. Although no marriage proof has been produced, in her cross examination by Ld. APP, she admitted that after marriage, she wore Chura. This FIR No. 193/08. State Vs. Rahul @ Ram Page 10 of 11 suggestion itself suggests that even the prosecution does not dispute the factum of marriage between the accused and the prosecutrix. In the case of Ravi Kumar Vs. State & Anr. Reported as 124 (2005) DLT 1, the Division Bench of Delhi High Court has ruled that the minority of the spouse cannot be a ground to declare their marriage illegal. As per the said judgment, the marriage of such a spouse is neither void nor illegal on account of his or her being less than 18 years but over 15 years of age. Relying on the said judgment as also the judgment of Hon'ble Supreme Court in the case of S. Varadarajan (supra), the Hon'ble High Court in the case of Bhagwan Singh & Ors. Vs. State & Anr. 2006 (3) JCC 2050, quashed the FIR under Section 363/366/120-B/34 IPC.

13. In the present case, it has come in evidence that prosecutrix accompanied the accused with her own free will and married him with her consent and therefore accused cannot be held guilty for her kidnapping and therefore offence under Section 366 is also not proved against the accused.

14. In view of my aforesaid discussion, I am of the opinion that prosecution has failed to prove charges against the accused. Accused is therefore acquitted. His bail bond is cancelled. Surety is discharged. Documents of surety if any be released after cancellation of endorsement. File be consigned to Record Room.

(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:NW-03:ROHINI:DELHI.

ANNOUNCED IN THE OPEN COURT ON 01.04.2011.