Delhi District Court
Sc No. 73/14 : Fir No. 363/13 : Ps Shalimar ... vs Rashid Khan on 28 February, 2017
SC No. 73/14 : FIR No. 363/13 : PS Shalimar Bagh : State V/s Rashid Khan
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01:
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI
(Sessions Case No. 73/14)
Unique Identification No.: 02404R0060602014
State V/s Rashid Khan
FIR No. : 363/13
U/s : 363/366/376 IPC
& Sec. 6 of POCSO Act
P.S. : Shalimar Bagh
State V/s Rashid Khan
S/o Sh. Javed Khan
R/o House no. 258, Gali no. 1,
Shalimar Bagh, Delhi110088
Date of institution of case : 25.03.2014
Date of arguments : 28.02.2017
Date of pronouncement of judgment : 28.02.2017
J U D G M E N T :
1.This case poses a very important question of law i.e. , if a 15 years old muslim girl elopes with a 18 years old muslim boy, performs marriage with him Page 1 of 22 SC No. 73/14 : FIR No. 363/13 : PS Shalimar Bagh : State V/s Rashid Khan and thereafter during the course of her matrimonial life with that boy if she resides with him as his wife. Can that boy be treated as an offender under POCSO Act having committed sexual assault upon her ?
The answer of this question will have to be found out after analysing the facts of the case, in the light of the legal position under the Muslim Personal Law and the spirit of POCSO Act.
The facts of the case as borne out from the record are that on 01.10.2013, Mst. Nagma, mother of prosecutrix Z, a girl aged about 15 years (hereinafter referred to as 'prosecutrix') went to PS Shalimar Bagh and lodged a missing persons report in respect of prosecutrix by stating that she had been missing from home since 24.09.2013. She expressed suspicion against accused Rashid, her neighbour, to have enticed and taken her away. On the basis of the statement of Mst. Nagma, case FIR in the matter was registered and the matter was entrusted for investigation to SI Deepak Dahiya, who got the matter reported with the missing persons squad. He raided the house of accused at his native village, but he could not be found.
On 26.12.2013, when SI Deepak Dahiya was on patrolling duty, he found the prosecutrix and accused roaming near Tpoint underpass at Shalimar Bagh. He apprehended both of them. He got them medically examined at BJRM Hospital. He also called the mother of prosecutrix at hospital. He collected the sealed exhibits of both of them from the concerned doctors. Thereafter, the further investigation in the matter was entrusted to WSI Sumedha, who collected the Page 2 of 22 SC No. 73/14 : FIR No. 363/13 : PS Shalimar Bagh : State V/s Rashid Khan documents with regard to the age of prosecutrix from the school first attended by her at District Shahjhanpur, UP, however, she could not collect the documents with regard to the age of accused and as such, she got his ossification test conducted at BJRM Hospital, whereby his age was opined to be between 20 to 22 years. She got the statement of prosecutrix recorded U/s 164 Cr.P.C, wherein the prosecutrix did not support the case of prosecution at all. The exhibits were sent to FSL and the result was obtained which shows that the prosecutrix and accused had established physical relations. After conclusion of the investigation the charge sheet in the matter was filed.
2. After filing of the charge sheet in the matter, the copy thereof, was supplied to the accused. Arguments on the point of charge were heard and on 05.05.2014, charge u/s 363/366 IPC and u/s 5 (l) of POCSO Act 2012 (hereinafter referred to as the "Act"), punishable u/s 6 of Act, alternatively u/s 376 (2) (n) IPC were framed against the accused, to which he pleaded not guilty and claimed trial.
3. In order to prove the charge against the accused, prosecution examined as many as 17 witnesses, whereafter the PE in the matter was closed and statement of accused u/s 313 Cr.P.C was recorded, wherein he claimed himself to be innocent and having been falsely implicated in the case by the mother of the prosecutrix. Accused did not lead evidence in his defence.
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4. I have heard arguments advanced at bar by Ld.Addl.PP on behalf of State and Sh. Jitender Kumar, learned defence counsel and perused the entire material on record. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which can be broadly classified into the following categories :
(a) Prosecutrix and her family member
(b) Witness regarding age of the prosecutrix and accused
(c) Medical and forensic evidence
(d) Formal witnesses
(e) Evidence of police officials of investigation
(a) Prosecutrix and her family members
5. Prosecutrix, in the present case was examined as PW5, but she did not support the prosecution case. The relevant portion of her testimony is as under : "xxx ....... Accused Rashid Khan ko mein pehle se janti hu kyunki woh humare pehle kirayewale kamare ke sathwale kamare me apni family ke sath kirayee par rehta tha.
Meri Rashid Khan se dosti ho gayi aur mein usse pyar karne lag gayi thi. Mere gharwale mujhe marte the aur maine Rashid Khan ko kaha ki mujhe Page 4 of 22 SC No. 73/14 : FIR No. 363/13 : PS Shalimar Bagh : State V/s Rashid Khan yaha se lekar chalo. Iss sab me Rashid Khan ki koi galati nahi hai. Karib 11 mahine pehle maine Rashid Khan ko kaha ki woh mujhe mere ghar se le jaye, phir woh mujhe apne sath apne gaon Kannoj, UP, le gaya.
Waha par humne shadi kar li thi. Pehle humne Nikah kiya phir humne Court marriage ki thi.
Rashid Khan ke gharwale mujhe pehle se pasand karte the aur woh iss shadi se razi the. Mein Rashid Khan ke sath 3 mahine 2 din rahi hu. 2 mahine hum Kannoj, UP, me rahe aur ek mahine ke liye mein, Rashid Khan aur uske papa Madras gaye the Rashid ke kissi rishtedar (relative) ke yaha. Uss relative ki bhabhi aur unke bachhe bhi humare sath train me gaye the. Mere aur Rashid Khan ke iss dauran shadi ke baad physical relation bhi bane the.
Hum khud hi police ke paas ek din aa gaye the kyunki meri mummy ne mere sasuralwalo ko dhamki di thi ki 2 din ke andar agar meri ladki ko nahi bulvaya toh mein sabke khilaf complaint kar dungi aur sab ko bandh karwa dungi. Jab humme pata laga toh hum khudi police ke pass aa gaye. Police ne mera bayaan likha. Police mujhe medical karane ke Page 5 of 22 SC No. 73/14 : FIR No. 363/13 : PS Shalimar Bagh : State V/s Rashid Khan liye hospital lekar gayi thi. Pehle bhi mera Court me ek bar bayaan hua tha....
xxx"
She identified her signatures on her statement Ex. PW4/B recorded u/s 164 Cr.P.C.
6. PW3 Mst. Nagma, mother of the prosecutrix, deposed that she had taken the house of Hazi Raees on rent 5 - 6 months prior to the registration of present case and family of accused had also been living in the said house. She further deposed that few days prior to Bakri Eid of last year at about 12:00 Noon, younger brother of the accused called the prosecutrix and thereafter, she left home without disclosing anything to her and did not return and she and her family members/relatives made efforts to search her, but to no avail. She further deposed that she came to know that accused and his father had kidnapped prosecutrix and her husband made every efforts to search the prosecutrix in the houses of relatives of accused and his father, but to no avail. She further deposed that police was informed about missing of prosecutrix on the same evening, when she had gone missing, but no FIR was registered and same was registered late by the police. She proved her complaint as Ex. PW3/A made to the police.
Page 6 of 22SC No. 73/14 : FIR No. 363/13 : PS Shalimar Bagh : State V/s Rashid Khan During crossexamination by learned defence counsel, she stated that in her community, marriage of girl was performed on her attaining the age of majority (jis umar me ladki shadi ke layak ho jati hai, uss umar me uski shadi kar dete hai, kam umar me nahi karte hai). She denied that in Mohamdan families, the girls were married at the age of 14 years and volunteered to state that 'Pehle karte the par ab nahi karte hai kyunki sarkar mana karti hai.' She denied that prosecutrix had got married with accused as per Muslim rites and ceremonies or that she had voluntarily gone with the accused with her own consent and free will. She further denied that she was aware of the love affair of prosecutrix with accused or their intention to marry each other or that when she had refused for the marriage, prosecutrix insisted the accused for taking her along with him and performe Nikah with her.
(b) Evidence with regard to age of the prosecutrix and accused
7. PW14, Dr. Shipra Rampal, was one of the members of the Medical Board which had examined the accused for assessment of his age. She deposed that after radiological, medical and dental examination of the accused, the Medical Board opined his estimated age to be between 20 to 22 years as on the date of examination i.e. 24.03.2014. She proved the report of the medical board as Ex.PW14/A.
8. PW15 Ms. Heena Alam, Incharge, Primary School Matani, Shahjahanpur, Page 7 of 22 SC No. 73/14 : FIR No. 363/13 : PS Shalimar Bagh : State V/s Rashid Khan UP, produced the school record regarding date of birth of the prosecutrix and deposed that as per the school record, she was admitted in the school in 2 nd class, on the basis of admission form Ex. PW15/A and her date of birth was entered in the school record as 20.10.1999. She also proved the relevant entry in the admission register as Ex.PW15/B and certificate issued on behalf of the school as Ex. PW15/C. During crossexamination, she admitted that prosecutrix was not admitted in the school in her presence and she could not state anything about the genuineness of the date of birth of the prosecutrix mentioned in the document furnished at the time of her admission in the school.
(c) Medical and Forensic evidence
9. PW7 Dr. R.S. Mishra, CMO, Babu Jagjeevan Ram Hospital, Delhi, proved the MLC of the prosecutrix as Ex. PW7/A, by identifying the handwriting and signatures of Dr. Khaleelulla, who had examined her and deposed regarding the same. He also proved the MLCs of the accused as Ex. PW7/B and Ex. PW 7/C by identifying the handwriting and signatures of Dr. Pankaj and Dr. Khaleelulla respectively and deposed that as per MLC Ex. PW7/C, after general examination, the accused was referred to Medical Board for bone age determination.
10. PW8 Dr. Vaibhav Gulati, CMO, Babu Jagjeevan Ram Hospital, Delhi, Page 8 of 22 SC No. 73/14 : FIR No. 363/13 : PS Shalimar Bagh : State V/s Rashid Khan proved the MLC of the prosecutrix as Ex. PW7/A by identifying the handwriting and signatures of Dr. Khaleelulla, who had examined her under his supervision and deposed regarding the same.
11. PW9 Dr. Avinash Tripathi, CMO, Babu Jagjeevan Ram Hospital, Delhi, proved the MLC of the accused as Ex. PW7/B by identifying the handwriting and signatures of Dr. Pankaj, who had examined him under his supervision and deposed regarding the same.
12. PW10 Dr. Jitender Nath Jha, SR Surgery, BJRM Hospital, Delhi, had examined the accused and deposed that after examination, he referred him to LNJP Hospital for potency test.
13. PW11 Dr. R. Kappu, Medical Officer, (Gynae Department), Babu Jagjeevan Ram Hospital, Delhi, proved the MLC of the prosecutrix as Ex. PW 7/A by identifying the handwriting and signatures of Dr. Rajesh, who had prepared the same and deposed that as per the MLC, there was no fresh external injury at the time of examination of prosecutrix
14. Later on, FSL result in the present case was filed and as per the said FSL result, alleles from the source of Exhibit '2' i.e. blood stained gauze cloth of accused were accounted in the allelic data of the source of Exhibit '1f(ii) i.e. Micro Page 9 of 22 SC No. 73/14 : FIR No. 363/13 : PS Shalimar Bagh : State V/s Rashid Khan slide of prosecutrix.
(c) Evidence of Formal witnesses
15. PW1 HC Ravinder Singh, was lying posted as duty officer in PS Shalimar Bagh at the relevant time and he proved the endorsement made by him on rukka as Ex. PW1/A and computerized copy of FIR as Ex. PW1/B.
16. PW2, HC Sudesh Kumar, was working as MHCM at PS Shalimar Bagh at the relevant period and he proved the entries made by him in register no. 19 and 21 as Ex. PW2/A to Ex. PW2/C, which were made by him at the time of deposit of case property with him and at the time of sending the same to FSL Rohini and deposed regarding the same.
17. PW4, Sh. Sushil Anuj Tyagi, ld. M.M, in his evidence proved statement of prosecutrix as Ex. PW4/B, recorded by him under Section 164 Cr.P.C on 28.12.2013.
18. PW13 Ct. Sachin, had taken the exhibits of the present case to FSL Rohini, vide RC no. 8/21/14 and deposited the same there and deposed regarding the same. He also proved the copy of RC and acknowledgment receipt of FSL as Ex. PW2/A and Ex. PW2/B respectively.
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(e) Evidence of police officials of investigation
19. PW16, SI Deepak Dahiya, initial IO of the case, deposed that on 01.10.2013, complainant Nagma had come to PS, lodged missing report of the prosecutrix and raised her suspicion against accused for having enticed and kidnapped the prosecutrix. He further deposed that he recorded the statement Ex. PW3/A of the complainant, prepared rukka Ex.PW16/A and got the case FIR registered. He further deposed that thereafter, he and complainant Smt. Nagma had gone to the house of accused, but same was found locked. He further deposed that on 26.10.2013, he, Abdul, husband of the complainant, W/Ct. Bhawna and Ct. Sohanpal had gone to the village of the accused at Kannauj, UP, but no clue in the matter was found therefrom. He further deposed that on 26.12.2013, during patrolling in the area, he noticed prosecutrix and accused near Shalimar Bagh, T Point underpass and thereafter, he apprehended them, got sent the prosecutrix to BJRM hospital for her medical examination and also got the medical examination of the accued conducted. He further deposed about seizure of the exhibits of the prosecutrix vide seizure memo Ex. PW12/A. He further deposed about deposit of exhibits of the case with MHCM and about handing over the custody of the accused and the prosecutrix to W/SI Sumedha, to whom further investigations of the case was transferred.
20. PW17, W/SI Sumedha, IO of the case, deposed that on 26.12.13, after Page 11 of 22 SC No. 73/14 : FIR No. 363/13 : PS Shalimar Bagh : State V/s Rashid Khan handing over further investigation in the matter, she recorded the statement of prosecutrix u/s 161 CrPC and since the prosecutrix was not willing to go with her parents, she was sent to Nirmal Chhaya. She further deposed about arrest and personal search of the accused vide memos Ex. PW17/A and Ex. PW6/B, respectively, about getting the medical examination of the accused conducted vide MLC Ex. PW7/B, about seizure of the accused's exhibits vide seizure memo Ex. PW 6/A, about getting the potency test of the accused conducted vide report Ex. PW17/B, about sending the exhibits to the FSL, about collecting the documents Ex. PW15/A to Ex. PW15/C regarding age proof of the prosecutrix and about their seizure vide memo Ex. PW17/C. She further deposed about getting the statement of the prosecutrix recorded u/s 164 Cr.P.C vide application Ex. PW4/A and about collecting copy thereof vide application Ex. PW4/D. She further deposed that she got the ossification test of the accused conducted vide assessment of age report Ex. PW 14/A, about recording the statements of the witness and about filing of the charge sheet in the matter, on completion of investigation.
21. PW6, Ct. Anil had joined the investigation of the present case with PW17 W/SI Sumedha and got the accused medically examined at BJRM Hospital and deposed that after medical examination, doctor had handed over the sealed exhibits to him, which he handed over to the IO and she seized the same vide seizure memo Ex. PW6/A. He further deposed about arrest and personal search of the accused and proved the personal search memo of the accused as Ex. PW6/B. Page 12 of 22 SC No. 73/14 : FIR No. 363/13 : PS Shalimar Bagh : State V/s Rashid Khan
22. PW12, W/Ct. Monika had joined the investigation of the present case with PW16 SI Deepak and got the prosecutrix medically examined at BJRM Hospital and deposed that after medical examination, doctor had handed over the sealed exhibits to her, which he handed over to the IO and he seized the same vide seizure memo Ex. PW12/A. Arguments advanced at bar
23. I have heard arguments advanced at bar by the learned Addl. PP for the State and Shri Jitender Kumar, learned counsel for the accused and perused the entire material on record.
24. The learned Addl. PP has very vehemently argued that the prosecutrix was a child within the meaning of Section 2(1)(d) of the Act and as such, she was incapable of giving consent for establishing physical relations with accused. It is further argued that the medical and forensic evidence corroborate the allegations of complainant and as such, the conviction of the accused for the charged offences has been prayed for.
25. Per contra, the learned defence counsel has very vehemently argued that the prosecutrix examined as PW5 in the matter has not supported the case of prosecution at all and the accused cannot be convicted on the testimony of Page 13 of 22 SC No. 73/14 : FIR No. 363/13 : PS Shalimar Bagh : State V/s Rashid Khan complainant Smt.Nagma, as her evidence is hearsay and as such, the acquittal of the accused in the matter has been prayed for.
26. Before proceeding to analyze the rival contentions, it has to be borne in mind that the accused as well as the prosecutrix are muslims. It is a fact that under the Muslim Personal law with which the accused and prosecutrix are governed permits them to contract a valid marriage provided the prosecutrix had attained the age of puberty. The prosecutrix had definitely attained puberty, as is evident from her MLC which shows that she had her last menstrual period 2025 days back.
27. This has to be further born in mind that the present case is under Protection of Children from Sexual Offences Act and this act was enacted with the objective that the children of tender age are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in condition of freedom and dignity. The aims and object of the act further make it imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical emotional, intellectual and social development of the child. The preamble of the Act reads as under : 'An act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Page 14 of 22 SC No. 73/14 : FIR No. 363/13 : PS Shalimar Bagh : State V/s Rashid Khan Special Courts for trial of such offences and for matters connected therewith or incidental thereto.'
28. Therefore, the act is a special act, which has been enacted bearing in mind the child psychology as well as the latent sexual abuse of children in the society as well as family, which is apparent from the provisions of Section 29 and 30 thereof, which are reproduced as under :
29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.
30. Presumption of culpable mental state - (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Page 15 of 22SC No. 73/14 : FIR No. 363/13 : PS Shalimar Bagh : State V/s Rashid Khan (2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
29. In the light of the aim and objects of the Act and the specific provisions like Section 29 and 30 of the Act, reproduced hereinabove, the presumption of innocence of the accused as is available to him under ordinary criminal jurisprudence is not available, in child abuse jurisprudence and the presumption, if any, available under the Act is to be considered strictly in accordance with the provisions of the Act and not under the ordinary criminal jurisprudence.
30. Therefore, a clear conflict is apparent between the Muslim Personal Law and the provisions of the Act with regard to the marriage of a muslim girl. The Act treats her as a child not capable of giving consent for her marriage and consummation thereof whereas her personal law clearly authorises her to go ahead and get married at that age. The Parliament probably did not foresee the aforesaid issue . It is clearly evident in this case that at no point of time the accused had ever used any kind of force against the prosecutrix. If, everything had happened with the sweet will of the prosecutrix then can the accused be held guilty of committing sexual assault upon her in the teeth of the admission made by the prosecutrix as well as the accused.
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31. In my considered opinion the answer of the aforesaid question has to be in negative. The reasons for the same are as under: a. as discussed herein above the validity and legality of the marriage of the prosecutrix and the accused cannot be questioned in these proceedings. The parties to the marriage have duly accepted the same to be a valid marriage.
b. the prosecutrix has not alleged any overtact against the accused to have enticed her before taking her along with him.
c. Even otherwise the prosecutrix had attained
sufficient maturity to have been capable of
understanding the consequences of her acts.
32. The Hon'ble High Court of Delhi has been pleased to render an authoritative pronouncement on 14.08.2015 in Criminal Appeal No. 325/2013 titled as Sh. Vijay Kumar Vs. State of NCT of Delhi wherein a girl aged about 15 years of age had gone along with the accused to Bhatinda and remained there for 89 days where physical relations between them were established on several occasions. In Page 17 of 22 SC No. 73/14 : FIR No. 363/13 : PS Shalimar Bagh : State V/s Rashid Khan the said case the Ld. Trial Judge had convicted the boy for offence punishable U/S 363/366/376 IPC, however in the appeal filed in the matter the Hon'ble High Court of Delhi duly considered the conduct of the girl and came to the conclusion that the girl was of the age of discretion, she had gone along with the accused without any kind of protest, she had not raised alarm at any point of time at any place despite there being an opportunity for the same . As far as the medical evidence in the said case is concerned the Hon'ble High Court duly considered the medical evidence of prosecutrix showing her hymen to be found torn and the allegations that the boy had established physical relations with her in Bhatinda and found the same to be consensual . The Hon'ble High Court placed reliance upon the law laid down in Shyam and Another Vs. State of Maharashtra AIR 1995 SC 2169 to hold that the girl was of the age of discretion . The paragraphs of the aforesaid judgment relevant for the facts of the present case are reproduce as under: "xxx In her statement in Court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the socalled "taking", it does not seem that the prosecutrix was truthful in that Page 18 of 22 SC No. 73/14 : FIR No. 363/13 : PS Shalimar Bagh : State V/s Rashid Khan regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabout would be under check by both the appellants/accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by "taking" her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but, still, she was in the age of discretion, sensible and aware of the intention of the accused Shyam. That he was taking her away for a purpose. It was not unknown to her with whom, she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam the Page 19 of 22 SC No. 73/14 : FIR No. 363/13 : PS Shalimar Bagh : State V/s Rashid Khan appellant on her own and in that sense there was no "taking" out of the guardianship of her mother. The culpability of neither Shyam, A1 nor that of Suresh, A2, in these circumstances, appears to us established. The charge against the appellants/accused under Section 366 I.P.C would thus fail. Accordingly, the appellants deserve acquittal. The appeal is, therefore, allowed acquitting the appellants.
xxx"
33. In this regard, it would be relevant to refer to the case titled as " S. Varadarajan Vs. State of Madras (reported as AIR 1965 SC 942)", wherein 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 : "xxx 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 Page 20 of 22 SC No. 73/14 : FIR No. 363/13 : PS Shalimar Bagh : State V/s Rashid Khan cannot be said to have taken her away from the keeping of her lawful guardian.
xxx"
34. It has also been held in para 8 of 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 of Delhi as under : "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 travelled with the accused to different places outside Delhi without raising any 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. ...."
35. 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 and it seems that everything had happened with her sweet will. In these circumstances, the factum of kidnapping of prosecutrix does not stand proved. If the law laid down in the aforesaid authorities is applied to the facts of the present case, then it would be absolutely clear that the accused is not on the wrong side of law in the matter.
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36. The FSL result in the matter goes on to show that the prosecutrix and accused had physical relations. This is even otherwise an admitted fact on record. The accused cannot be convicted merely on account of this, particularly when the question framed at the beginning of the judgment has been answered in favour of accused.
37. In view of the above discussions, it is hereby held that the prosecution has failed to establish the charges against the accused. Accused Rashid Khan accordingly stands acquitted. He is on bail in this case. His bail bond stands canceled. Surety stands discharged. Endorsement, if any on the documents of either accused or his surety be canceled. The original documents of either accused or his surety, if on record, be returned to them forthwith.
38. File be consigned to Record Room, after compliance of the provisions of Section 437A Cr.P.C.
Dictated & Announced in the (Vinod Yadav)
open Court on 28.02.2017 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
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