Delhi District Court
Sc No. 124/11 State vs Amit Page No. 1 Of 22 on 12 February, 2016
IN THE COURT OF ADDITIONAL SESSIONS JUDGE01 : SED:
DESIGNATED JUDGE: TADA/POTA/MCOCA/POCSO:
SAKET COURTS: NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
CASE ID NO. 02406R0150692011
SESSIONS CASE NO. 124/11
FIR NO. 45/11
POLICE STATION : OKHLA INDUSTRIAL AREA
UNDER SECTION : 366/376/363 IPC
STATE
VERSUS
AMIT
S/O SH. ATTAR SINGH,
R/O VILLAGE IBRAHIMPUR GARHI, P.S. SAHASWAN,
DISTRICT BADAYUN, UTTAR PRADESH.
DATE OF INSTITUTION : 09.06.2011.
DATE OF RESERVING ORDER : 22.01.2016.
DATE OF DECISION : 12.02.2016
J U D G M E N T
Case of Prosecution:
1. Brief facts of the prosecution case are that on receiving DD No. 19A dated 13.02.2011, HC Rajbir Singh along with Ct. Sunil reached at the spot i.e. G122, Harkesh Nagar, Okhla PhaseII, New Delhi where complainant Sh. Banwari Lal met them who gave his statement that he works as a baildar. On 13.02.2011 his daughter 'D'( name withheld to SC No. 124/11 State Vs Amit Page No. 1 of 22 keep her identity confidential) has gone from his house at about 4 PM and has not returned back. He further deposed that one person namely Amit who resides on the second floor of the house used to talk with his daughter is also not present in his house. He made suspicion upon him to have taken his daughter with him. Case u/s 363/366 IPC was registered on the complaint of complainant. WT messages were flashed. Missing notice of prosecutrix was sent and information was sent to CRO , NCRB, Anti Kidnapping Cell CBI, DMPU, Doordarshan Kendra and Zipnet. NBWs were got issued against the accused Amit. Complainant along with IO went to the house of accused but he could not be found. On returning, they found accused and prosecutrix at Platform No. 119, ISBT Anand Vihar, Delhi. They both were stopped there. IO called lady constable and one male constable from police station. Accused was arrested. Prosecutrix and accused were got medically examined. After medical examination, section 376 IPC was added in the chargesheet. Accused was sent to JC and prosecutrix was sent to Prayas NGO. Statement of prosecutrix u/s 164 Cr.P.C was got recorded by the police and thereafter she was handed over to her father. School certificate of prosecutrix was collected wherein her date of birth is 10.09.1997. DLSA was informed. Thereafter, statement of witnesses were got recorded by the Investigating officer and after completion of investigation, charge sheet under Section 363/366/376 IPC was filed against the accused in the court.
Charge against the accused:
2. Prima facie case under section 363/366/376 IPC was made SC No. 124/11 State Vs Amit Page No. 2 of 22 out against the accused and accordingly charge was framed upon the accused to which he pleaded not guilty and claimed trial. Witnesses Examined:
3. In support of its case, prosecution has examined fourteen witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under: Material Witnesses:
4. PW2 is prosecutrix 'D' who had stated that about one year prior to the incident, she had come with her father to Delhi and residing in Harkesh Nagar, OIA. Accused Amit used to reside at the first floor of the same premises at Harkesh Nagar . She has studied upto 5th class at the Primary School, Mundiya, Bishan Sahai, District Bareily. Whenever her father and brother were not available at home, accused used to speak to her and used to say that he loves her and would marry her. About one year back when she was alone at home, accused came and asked her to accompany her on the pretext of marriage. Influenced by his sweet talks, she accompanied the accused. The accused took her to the house of his sister in District Badaiyun. Accused took her to the court at Badaiyun where he got prepared the marriage documents against her wishes and married her. Accused had sexual intercourse with her at the house of her sister. When accused brought her to Delhi, police apprehended her at Anand Vihar Bus Stand and police handed over her to her father vide memo Ex.PW2/A. IO recorded her statement to this effect. Accused was correctly identified by the witness in the court.
5. PW3 is Sh. Banwari Lal, complainant of the case, who had SC No. 124/11 State Vs Amit Page No. 3 of 22 deposed that in the year 2011 he used to work as baildar (labourer) and used to reside at Harkesh Nagar, OIA. His daughter 'D', aged about 14 years of age, also resides with him. Two days prior to the Holi in 2011, at about 4 PM his daughter 'D' was not found at home. He suspected the accused Amit as he was also not available at his home and accordingly he reported the matter to the police. The police recorded his statement to this effect which is Ex.PW3/A. On 17.03.2011 he accompanied the police to the village of accused at Village Abrahimpur, PS Sheshwan, District Badaiyun, where the police had raided the house of the accused, but the accused could not be found. On 19.03.2011 he had come to Delhi and on the intervening night of 19.03.2011 the police apprehended the accused from Anand Vihar Bus Stand and his daughter 'D' was recovered from his possession. Police prepared the recovery memo Ex.PW3/B and arrested the accused. Disclosure statement of accused was recorded which is Ex.PW3/C. Police got conducted the medical examination of his daughter. Police handed over his daughter to him. His daughter 'D' had studied upto 4th class in the village Mudiya Bisan Saar. He had handed over the leaving certificate to the police vide seizure memo Ex.PW3/D. His daughter had informed him that accused had taken her forcefully and had sexual intercourse with her without her consent. IO recorded his statement to this effect.
6. PW11 is ASI Jagbir Singh, Investigating Officer, who had deposed that he was entrusted with the investigation of the case. He got the message flashed regarding kidnapping of prosecutrix by accused and sent the relevant papers to DLSA, NCRB, Anti Kidnapping, CBI, Doordarshan etc. Father of prosecutrix produced the school leaving SC No. 124/11 State Vs Amit Page No. 4 of 22 certificate of prosecutrix which was seized by him vide seizure memo already Ex.PW3/D and certificate on record is already Ex.PW1/A. He got verified the certificate. Since the accused was not traceable, he obtained the NBWs of accused from the concerned court. On 18.03.2011 he along with complainant went to native village of accused i.e. Village Ibrahimpur, Garhi, PS Sehswan, District Badayun , UP and contacted the local police. In the morning of 19.03.2011 they along with local police went to the house of accused Amit but he could not be found. On inquiry, the inhabitants of the village told that accused Amit was already married for last about 7/8 years. Accordingly, they returned to Delhi and when they reached at Anand Vihar Bus Stand, complainant pointed out towards his daughter i.e. prosecutrix and accused Amit present at Terminal No. 119, Anand Vihar Bus Stand. They apprehended the accused as well as the prosecutrix. He got recorded the DD entry in PS OIA to this effect and called up the police. Ct. Kamlesh and L/Ct. Guddi came there. He prepared the recovery memo of prosecutrix which is already Ex.PW3/B and interrogated the accused arrested him vide arrest memo already Ex.PW7/A and conducted his personal search vide personal search memo already Ex. PW7/B. During the course of interrogation he recorded the disclosure statement of accused vide memo already Ex.PW3/C. They took the accused and prosecutrix and both were got medically examined. One Smt. Chameli Devi, mausi of the prosecutrix also accompanied the prosecutrix for her medical examination. After medical examination of accused, doctor handed over four sealed pullandas duly sealed with the seal of hospital along with sample seal to Constable Kamlesh who produced the same to him. He seized the same vide seizure memo SC No. 124/11 State Vs Amit Page No. 5 of 22 Ex.PW7/C. Prosecutrix was sent to NGO Prayas and accused was sent to JC. On 21.03.2011 he got the statement of prosecutrix u/s 164 Cr.P.C recorded and thereafter her custody was handed over to her father. During investigation the family members of the accused had produced the marriage documents regarding the marriage of the prosecutrix with the accused at Badayun Court where the age of the prosecutrix was represented more than her actual age for the purpose of marriage with the accused. Thereafter, he proceeded on leave and investigation was handed over to W/SI Madhu Sharma who got the ossification test of the prosecutrix conducted. He again returned from leave and was entrusted with the investigation of the case. He recorded the statement of witnesses, prepared the charge sheet and submitted the same to the concerned court. Accused was correctly identified by the witness in the court.
7. PW13 W/SI Madhu Sharma who had deposed that on 27.04.2011 as the IO of this case proceeded on leave, she was entrusted this case. She attended the bail matter and Ld. ASJ directed for bone age ossification test. She got the bone age ossification test of prosecutrix 'D'. The doctor handed over the ossification test report to her which is Ex.PW13/A in which the doctor opined the age of the prosecutrix between 15.2 years to 16 years. Thereafter, she handed over the case file to ASI Jagvir.
Formal Witnesses:
8. PW1 is Sh. Ram Bharosay Lal, Head Master in Prathmik Vidyalaya, Mudia Beshan Sahay, Nawab Ganj, Bareli, UP who had stated SC No. 124/11 State Vs Amit Page No. 6 of 22 that Durgesh Kumar was admitted in their school in Ist class in the year 2005. After passing 4th class her name was struck off on 21.07.2009. At the time of leaving the school she was also issued the school leaving certificate. As per school record, the date of birth of Durgesh Kumari was 10.09.1997 which was Ex.PW1/A (OSR).
9. PW4 is HC Rajbir Singh who had deposed that on 13.02.2011 upon receipt of DD No. 19A copy of which is Ex.PW4/A he along with Ct. Sunil reached at spot i.e. G122, Harkesh Nagar where complainant Sh. Banwari Lal met them and reported about the kidnapping of his daughter 'D', aged about 14 years by accused Amit. He recorded his statement and handed over the same to Ct. Sunil for registration of FIR. After registration of case, Ct. Sunil came back at the spot and handed over the rukka and copy of FIR to him. He made efforts to locate the accused Amit and recover the prosecutrix in Harkesh Nagar but neither the accused was located nor prosecutrix was recovered. They came back to police station and thereafter, investigation was transfered to ASI Jagbir Singh. He deposited the case file with the MHC(R).
10. PW5 is Sh. Rajinder Singh, Metropolitan Magistrate who had stated that he had recorded the statement of prosecutrix 'D' under Section 164 Cr.P.C and proved on record Ex.PW5/A to Ex.PW5/D.
11. PW6 is L/Ct. Guddi who had deposed that on the intervening night of 19/20.03.2011 she along with Ct. Kamlesh and IO had gone to ISBT, Anand Vihar where prosecutrix, her father and accused Amit met them. IO prepared the recovery memo of the prosecutrix already Ex.PW3/B. They came back to the police station. Thereafter, she along with prosecutrix, her mausi and her father went to AIIMS where SC No. 124/11 State Vs Amit Page No. 7 of 22 the prosecutrix was medically examined. The prosecutrix refused to undergo gynae test. IO recorded her statement to this effect. Accused Amit was correctly identified by the witness in the court.
12. PW7 is Ct. Kamlesh Kumar who had deposed that on the intervening night of 19/20.03.2011 as per the instructions of duty officer he took L/Ct. Guddi from Control Room and went to Anand Vihar Bus Stand where at Bus Terminal No. 119, the prosecutrix 'D', her father and accused met us. IO/ASI Jagbir was also there. IO interrogated the accused and arrested him vide arrest memo Ex.PW7/A and conducted his personal search memo vide personal search memo Ex.PW7/B. Thereafter, they came back to police station. On instructions from IO, he got the accused Amit medically examined at AIIMS Hospital. After his medical examination, doctor handed over three pullandas sealed with the seal of hospital along with sample seal to him which he produced to IO and IO seized the same vide seizure memo Ex.PW7/C. Father of prosecutrix produced the school certificate of the date of birth of prosecutrix which was seized by IO vide seizure memo already Ex.PW3/D. Prosecutrix was sent to Prayas and accused was sent to judicial custody. Accused Amit was correctly identified by the witness in the court.
13. PW9 is Smt. Chameli who had deposed that she does not remember the date, month and year. She had gone to the police station when prosecutrix 'D' was recovered. She had accompanied prosecutrix 'D' to AIIMS Hospital along with police officials and she was made to sit outside while the medical examination of 'D' was conducted. No statement was made by 'D' to the doctor in her presence. During SC No. 124/11 State Vs Amit Page No. 8 of 22 examination, witness turned hostile. Ld. Addl. PP for the state has cross examined the witness but nothing incriminating has come out in the cross examination of witness.
14. PW12 is Constable Sunil who had deposed that on 13.02.2011 upon receipt of DD No. 19A he along with IO reached at the spot i.e. G122, Harkesh Nagar, Okhla , PhaseII where the complainant Sh. Banwari Lal met them. He reported about his daughter 'D'. IO recorded his statement. IO prepared rukka and handed over same to him for registration of case. After registration of case, he came back at the spot and handed over the rukka and copy of FIR back to IO. The IO recorded his statement to this effect.
15. PW14 is Inspector Praveen Kharab who had deposed that upon receipt of rukka mark 'X' through Constable Sunil, he recorded formal FIR, the computerized print out of the FIR on record is now Ex.PW14/A. After registration of FIR, he handed over the rukka and copy of FIR back to Ct. Sunil who took the same to HC Rajbir as HC Rajbir was entrusted with the investigation of the case. His endorsement on rukka is now Ex.PW14/B. Medical Witnesses:
16. PW8 is Dr. Asit Kumar Sikary who had deposed that on 20.03.2011 at about 2.58 AM accused was brought to the casualty of AIIMS by police. He had medically examined the accused/patient and prepared detailed MLC Ex.PW8/A and upon examination opined that there is nothing to suggest that the person examined is incapable to perform sexual intercourse under normal circumstances. During the SC No. 124/11 State Vs Amit Page No. 9 of 22 course of medical examination, he collected the blood in gauze, penile swab with control and undergarments of the accused and sealed the same with the seal of hospital and handed over to the police with sample seal.
17. PW10 is Dr. Jatinder who had deposed that he can identify the handwriting and signatures of Dr. Deb Jyoti. He has seen MLC No. 19229/11 dated 20.03.2011 already Ex.PW9/A according to which prosecutrix 'D' was medically examined by Dr. Deb Jyoti wherein prosecutrix refused for her medical examination. Dr. Jatinder has stated that Dr. Deb Jyoti has left the services of hospital and his whereabouts are not known.
Statement and Defence of accused :
18. Statement of accused under Section 313 Cr.P.C was recorded wherein the accused denied the case of the prosecution and stated that it is a false case made by the complainant. He stated that he was having love affair with the prosecutrix however the parents of the prosecutrix were not accepting their relationship as they are of different caste i.e. he is balmiki whereas the prosecutrix is Jaat. Prosecutrix was insisting upon him to take her alongwith him as she was troubled by her father and she did not want to stay with him. However, he always refused to take her. She had even stated to him that she is major aged 20 years and there is no problem in taking her . But, he always refused. He stated that he never took the prosecutrix nor made any physical relations with her. Father of the prosecutrix has lodged a false report against him as he was of other caste. Accused further stated that he does not wish to lead defence evidence and therefore, the Defence Evidence was closed.
SC No. 124/11 State Vs Amit Page No. 10 of 22Arguments of Ld. Defence Counsel for accused:
19. It is argued by the counsel for accused that the accused has been falsely implicated in this case. It is stated that case of HMA seeking restitution of conjugal rights was filed between the parties in which the prosecutrix has made statement before the family court mentioning her age as 20 years whereas in the court she has falsely given her age as 17 years. It is stated that as per the bony age her age is between 15.2 years to 16 years. It is stated that as she was more than 15 years and has married with the accused willingly no case is made out as the case is covered under exception (2) of 175 IPC. It is also stated that she has given statement favouring the accused under Section 164 Cr.P.C. It is stated that PW3 has stated in his statement that he had gone with the police on 17.03.2011 for recovery of the prosecutrix whereas PW11/IO says that on 18.03.2011 the girl was in custody of NGO/police with her statement under Section 164 Cr.P.C was recorded. There was no influence. IO has admitted in his statement that date of birth was given during the course of investigation. It shows that accused and prosecutrix had married each other and girl was major and no offence is proved.
Arguments of Ld. APP for state:
20. On the other hand Ld. Addl. PP for the state has argued that accused has admitted that they had gone together. In cross examination, the prosecutrix has stated that she told the accused that she was 20 years of age. It is stated that there is school record which is admissible as proof of age. Mere statement of the girl in the Family Court is not sufficient against the school record. Hence, it is prayed that as the prosecutrix was SC No. 124/11 State Vs Amit Page No. 11 of 22 minor, her consent is not material. The accused had taken the prosecutrix out of the custody of her parents and made physical relations with her. Hence, he is liable to be convicted.
21. I have heard the Ld. Defence counsel for the accused and Ld. APP for state and have carefully perused the record. Conclusion:
22. Before appreciating the facts of this case,it is necessary to know the ingredients of the offence by resorting to the provisions of sec.375 read with sec.376 IPC. Section 375 Rape provides: " A man is said to commit "rape" who, except in the case 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 knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself 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 SC No. 124/11 State Vs Amit Page No. 12 of 22 consequences of that to which she gives consent.
Sixthly With or without her consent, when she 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.
23. "Rape" is the act of physically forcing a woman to have sexual intercourse: an act of sexual intercourse that is forced upon a woman against her will. "Statutory rape" is a sexual intercourse with a girl under the age of consent, which age varies in different States from ten to eighteen years.
24. The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. lett. 123b); or as expressed more fully, 'rape' is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section requires the essentials:
1. Sexual intercourse by a man with woman.
2. The sexual intercourse must be under circumstances falling under any of the six clauses in Section 375 IPC.
25. In MANU/SC/7825/2008 Moti Lal vs. State of M.P., the Apex Court had observed that : "a rapist not only violates the victim's privacy and SC No. 124/11 State Vs Amit Page No. 13 of 22 personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female.
The court, therefore, shoulders a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. "
26. The two issues to be determined on the basis of evidence adduced by the prosecution are the age of the prosecutrix and whether she was a consenting party to the incident or not.
Age of the prosecutrix:
27. To prove the age of the prosecutrix the prosecution has relied upon the school record of Ist class. The record is proved by PW1 Sh. Ram Bharosay Lal, Head Master in Prathmik Vidyalaya, Mudia Beshan Sahay, Nawab Ganj, Bareli, UP, who has stated that prosecutrix was admitted in their school in Ist class in the year 2005. After passing 4th class her name was struck off on 21.07.2009. As per their school record, her date of birth is 10.09.1997. He has proved the school leaving certificate. The witness was cross examined where the accused has only put the suggestion about the furnishing of any birth certificate or any other documents of the school by the parents of the prosecutrix. At the time of her admission, PW1 has admitted that no such documents was SC No. 124/11 State Vs Amit Page No. 14 of 22 given and the date of birth was entered on the basis of date given by the parents of the prosecutrix.
28. It is stated by the counsel for accused that prosecution has also placed on record bony age ossification test report of the prosecutrix wherein her date of birth is mentioned as between 15.2 years to 16 years and this date of birth should be taken into consideration and giving the benefit of 2 years, the prosecutrix should be held as major on the date of offence. So far as this submission of the counsel for accused is concerned, it is settled law that the school record is to prevail against the bony age ossification test report. In the case of Ashwani Kumar Saxena Vs State of Madhya Pradesh, (2012) 9 Supreme Court it is held by the Apex Court that: "Age determination inquiry" contemplated under section 7A of the JJ Act read with rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, does the court need to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.
Once the court, following the abovementioned procedures, passes an order, that order shall be the conclusive SC No. 124/11 State Vs Amit Page No. 15 of 22 proof of the age as regards such child or juvenile in conflict with law. It has been made clear in Rule 12(5) that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to Rule 12(3). Further, Section 49 of the JJ Act also draws a presumption of the age of the juvenility on its determination.
Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an inquiry under other legislations, like entry in service, retirement, promotion etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a corporation or a municipal authority or a panchayat may not be correct. But court, Juvenile Justice Board or a Child Welfare Committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the Child Welfare Committee need to go for medical report for age determination."
29. In this case the Hon'ble Apex Court has even held that no roving enquiry with regard to authenticity of school is required to be conducted by criminal court. Age recorded in the school record has to prevail as against the age ossification test report. The date of birth of prosecutrix was recorded in the year 2005. The present case had happened on 13.02.2011. Hence, it is clear that when the date of birth of prosecutrix was recorded in the school record it could not have been in the imagination of parents of the prosecutrix that at one point of time, they may require the age record of the child so as to prove her minority in some criminal case. The authenticity of school record cannot be doubted.
SC No. 124/11 State Vs Amit Page No. 16 of 22The school record has to prevail as against the ossification test report or against any oral testimony as it is a documentary evidence. On the basis of the school record wherein date of birth of the prosecutrix is 10.09.1997 and in view of the date of incident i.e. 13.02.2011 it is held that prosecutrix was less than 14 years and was minor.
Consent of the prosecutrix:
30. The most material witness to prove the offence of rape against the accused is the prosecutrix herself who has appeared as PW2. In her statement before the court she has stated that accused used to speak to her in the absence of her father and brother and used to say that he loves her and would marry her. Around 1 year back when she was alone he came and asked her to accompany him on the pretext of marriage and influenced by his sweet talks she accompanied him. They went to the house of his sister at Badayun , UP where the accused took her to the court and performed marriage with against her wishes and then he had sexual intercourse with her at the house of his sister. She also stated that when the accused brought her to Delhi the police apprehended them at Anand Vihar Bus Stand. Ld. Addl. PP for the state had put some leading questions to the witness which were specifically denied by the witness stating that she never stated that accused had been committing sexual intercourse with her for the last one year prior to the incident. During the cross examination from the side of accused, she has admitted her marriage with accused. She also admitted that before magistrate, in her statement under Section 164 Cr.P.C she had stated that she wanted to accompany the accused. She also admitted that they stayed for about SC No. 124/11 State Vs Amit Page No. 17 of 22 more than one month at the house of the sister of the accused. She also stated that she raised alarm when the accused had taken her to the court for marriage but nobody heard. The prosecutrix was recalled for her further cross examination in pursuance to the order passed on the application of accused under Section 311 Cr.P.C. In the later cross examination of prosecutrix recorded on 30.03.2015 she was further cross examined and it is admitted by her that the accused had filed the restitution of conjugal rights against her under Section 9 of Hindu Marriage Act wherein the matter was settled before the court of Ms. Madhu Jain, Ld. ASJ, Family Courts, Delhi and she agreed to reside with accused with whom she married. She also admitted that she mentioned her age as 20 years in the said statement recorded in Family Court. She also admitted that she had always disclosed her age between 18 to 20 years to the accused during her affair with the accused. She further stated that she had gone with the accused voluntarily and married with him with her consent. On the similar lines, father of the prosecutrix had admitted the settlement between his daughter and accused in Mediation Center, Delhi High Court.
Though, it is settled law that the conviction of the accused can be made at the sole testimony of the prosecutrix but the court has to weigh evidence and to see if it inspires confidence. It is held in 2009 VI AD (DELHI) 37 Arshad Vs. State that: "Conviction of the offender in rape case is based on sole testimony of rape victim may be a child provided if it inspires confidence of the court."
31. However, while evaluating the statement of the witness the SC No. 124/11 State Vs Amit Page No. 18 of 22 court while evaluating facts of the case is supposed to form opinion about the credibility of the witness examined in the case. The judge has to form his own estimate of the evidence produced before him and to articulate an opinion about the credibility of the witness. For the purpose of assessing the credibility, the court has to consider the evidence of a witness to find out as to how he has fared in the cross examination and what impression is created by his evidence, taken in context of other facts of the case. Law recognizes following ways in which the evidence of a witness can be termed unreliable:
a) the witness statement is inherently improbable or contrary to the course of nature,
b) his deposition contains mutually contradictory or inconsistent passage,
c) he is found to be bitter enemy of the opposite party,
d) he is found not to be a man of veracity,
e) he is found to have been bribed or accepted any other corrupt inducement to give evidence and,
f) his demeanor, while under examination, is found abnormal and unsatisfactory.
32. It is for the court to consider in each case whether as a result of cross examination the witness stands discredited or can still be believed in regard to any party of his testimony. In appropriate cases, the court can rely upon a part of the testimony of a witness if the said deposition is found to be credit worthy. The law even recognizes to rely upon the part of the testimony of a hostile witness if the same inspires confidence. A part of the testimony of a witness can be incredible but the other part can SC No. 124/11 State Vs Amit Page No. 19 of 22 be credible on a careful scrutiny and that portion of the evidence which is consistent with the case of the prosecution or the defence can be relied upon if the testimony is found to be credible.
33. It is clear that the prosecutrix has been giving wavering statement of the court time and again. The testimony of prosecutrix on the point of forcible rape or kidnapping is also belied by statement of PW7 Ct. Kamlesh Kumar who in his cross examination has stated that in his presence the prosecutrix had not stated that she was forcibly taken by the accused.
34. In this case the prosecutrix has admittedly staying with the accused for more than a month. Admittedly, they performed marriage in the court. It is not believable that if she would have raised alarm in the court at the time of performance of marriage, nobody would have heard the same. The prosecutrix and the accused both have appeared before the Family Court and admitted their relationship being husband and wife and the said matter was settled between them. In her statement u/s 164 Cr.P.C recorded by the Magistrate, she has stated that she willingly gone with accused and married him and wants to reside with him. In that statement she nowhere stated that accused raped him. The prosecutrix has even refused for her medical examination. She herself has given wavering statement. Her testimony is full of contradictions and is not reliable on the point that the accused has made physical relations with her. It does not inspire confidence more so when it is not corroborated by medical evidence. It seems that she herself went with accused and married him and that is why both filed a case is family court admitting their relationship of husband and wife in which she agreed to stay with accused SC No. 124/11 State Vs Amit Page No. 20 of 22 and settled the case. Accused has also admitted in his defence that he and the prosecutrix were having love affair but their relationship was not acceptable to the parents of the prosecutrix due to differences in caste. Prosecutrix insisted the accused to take her away and that she is major being 20 years. He also stated that he never made any physical relations with her nor he took her. In view of above discussion, prosecution has failed to prove that accused has made physical relations with the prosecutrix.
Offence of Kidnapping:
35. For the offence under section 363 of IPC, the prosecution has to prove the ingredients of the offence as mentioned in section 361 of IPC i.e.:
i) taking or enticing a minor girl under 18 years of age,
ii) out of the keeping of lawful guardian of such minor,
iii) without their consent.
Offence under section 366 IPC:
36. For proving the offence under section 366 IPC the prosecution has to prove the following ingredients.
The essential ingredients of section 366 of IPC are :
(a) A person kidnaps or abducts any woman.
(b) The act is done
(i) with intent that she may be compelled to marry any person against her will, or
(ii) knowing it to be likely that she will be so compelled, or
(iii) in order that she may be forced or seduced to illicit SC No. 124/11 State Vs Amit Page No. 21 of 22 intercourse, or
(iv) knowing it to be likely that she will be so forced or seduced.
37. The prosecutrix has stated in her cross examination that she had gone with the accused and had married with him. She stated that she had always disclosed her age between 18 to 20 years to the accused during her affair with the accused. She stated that she and accused remained as husband and wife for about more than one month at the house of the sister of the accused. As discussed above that prosecutrix was minor child on date of offence and in view of settled law that consent of a minor child is not material, it is proved that accused had taken the prosecutrix out of the keeping of the lawful guardianship without the consent of the parents of the prosecutrix, as it only her father who had lodged missing report of the prosecutrix.
38. In view of the above said facts and circumstances, accused is held guilty and convicted for the offence under Section 363/366 IPC Accused is however acquitted of the offence under Section 376 IPC. ANNOUNCED IN THE OPEN COURT ON 12.02.2016.
( RENU BHATNAGAR ) DESIGNATED JUDGE TADA/POTA/MCOCA/POCSO ASJ01/SED/NEW DELHI SC No. 124/11 State Vs Amit Page No. 22 of 22