Delhi District Court
State vs Santosh Kumar S/O. Late Sh. Deepan Ram on 14 February, 2014
IN THE COURT OF SANJAY GARG : ADDITIONAL SESSIONS JUDGE - 01
(EAST) :KARKARDOOMA COURTS : DELHI
SC No. 106/13
FIR No. 553/13
PS Mandawali
Under Section : 363/365/366/376 IPC
State Versus Santosh Kumar S/o. Late Sh. Deepan Ram
R/o. Village Gorpat Sahni tola,
Poet Udakishanganj, PS Bihariganj,
Distt. Madhepura, Bihar
Date of Institution of Case : 26.07.13
Date on which Judgment Reserved : 14.02.14
Date on which Judgment Delivered : 14.02.14
J U D G M E N T :
1. Briefly stated the case of the prosecution is that Jhinku Painter (PW1) visited PS on 1.12.12 and made a complaint regarding missing of his daughter aged 13 years and showed suspicion on accused Santosh who was residing in his neighbourhood. On this SI Virender Kumar (PW7) prepared rukka and got the FIR registered u/s. 363 IPC. IO visited the house of accused and he was found missing since 29.11.12. In the month of April complainant (PW1) told IO that he has received a call from his daughter. On the number the call was traced to be from Village Makdoompur, Kahar Toli, Distt. Madhepura, Bihar and phone was registered on the name of Ganesh Ram. On inquiry Ganesh Ram told that accused is residing at Purnia, Bihar. From there accused was apprehended and prosecutrix was recovered from his possession. They both were brought to Delhi and their medical examination was got done. Statement of prosecutrix was got recorded u/s.
FIR No. 553/12 page 1 of page 8 164 CrPC. After investigation police filed chargesheet against the accused u/s. 363/365/366/376 IPC and u/s. 6 of POCSO.
2. Charge u/s. 363/366/376 (2) (i) IPC and alternative charge u/s. 6 of POCSO was given to accused, to which he pleaded not guilty and claimed trial.
3. To prove its case prosecution has examined seven witnesses. PW1 Jhinku is the complainant. He proved his complaint Ex.PW1/A, recovery memo of prosecutrix Ex.PW1/B, arrest memo and personal search memo of accused as Ex.PW1/C and Ex.PW1/D. Prosecutrix is examined as PW2. She admitted her signatures on her statement recorded u/s. 164 CrPC. PW3 Smt. Veenita is formal witness, she had gone with prosecutrix to LBS Hospital where she refused to get her medical examination done. PW4 Smt. Samlesh Kumari, Incharge, MCD Primary School produced the certificate issued by Smt. Nirmal Gaur, previous Incharge of the school as Ex.PW4/A, admission/withdrawal register for the year 20082011 containing entry regarding prosecutrix as Ex.PW4/B, the pasting file containing application and a supporting affidavit as Ex.PW5/C and Ex.PW5/D. PW5 HC Pramod Kumar was duty officer, he proved FIR Ex.PW5/A and endorsement on rukka as Ex.PW5/B. PW6 SI Deepa is a part IO as she has filed the chargesheet. PW7 is the main IO who proved rukka Ex.PW7/B, application moved before Ld. M.M for recording statement of prosecutrix Ex.PW7/B and his application for proving copy of the statement Ex.PW7/C, seizure memo Ex.PW7/D vide which exhibits given to him after medical examination of FIR No. 553/12 page 2 of page 8 accused, were seized.
4. Accused admitted MLC of victim as Ex.PA1, provisional diagnosis of victim as Ex.PA2, his MLC as Ex.PA3, his X'Ray report and age determination report as Ex.PA4 and his statement u/s. 294 CrPC was recorded to this effect.
5. On the basis of the incriminating evidence against the accused, his statement was recorded u/s. 313 CrPC wherein he denied the entire prosecution evidence against him and took the defence that since 2010 he and prosecutrix used to love each other. They wanted to marry but family of prosecutrix was not agreeing. At that time prosecutrix was more than 18 years of age. Prosecutrix asked him to run away and get married. On 29.11.12 prosecutrix met him at Railway Station and they went to Bihar. There they did marriage. Before marriage they did not establish physical relations. Prosecutrix got pregnant. She delivered a baby who died. She is his legally wedded wife.
6. Heard arguments of Sh. Sanjay Kumar, Ld. Addl. PP for State and Sh. Gaurav Vashishth, Ld. Amicus Curiae for the accused. Perused the case file.
7. Ld. Addl. PP submitted that as per statement of prosecutrix it stands established that she was taken away by accused and subjected to forcible sex. It is stated that from the school record of prosecutrix produced by PW4 it stands established that she was just 11 years of age at the time of this incident.
FIR No. 553/12 page 3 of page 8
8. The Ld. Amicus Curiae for accused submitted that prosecutrix has specifically stated that she had gone with the accused at her own freewill and had married with him. It is stated that she is legally wedded wife of accused and was major when she went with him. It is stated that no offence is made out against the accused.
9. Prosecutrix while deposing as PW2 has stated that accused was known to her for the last 6 months as he also used to live in the same building. They both used to love each other. On 29.11.12 she left her house and accused met her at Railway Station. From there by train they went to Village Madheypura, Bihar. After 10 days they married in a temple. After marriage she got pregnant. On 28.4.13 Delhi police reached there with her parents and brought them to Delhi. She was taken to GTB Hospital and there medically examined. In July'13 she delivered a baby girl. Since she was married and had delivered a daughter she wants to live with accused. She was declared hostile and crossexamined by Ld. Addl. PP. During cross she stated that on 30.4.13 her statement was recorded by Ld. M.M. She identified her signatures on her statement Ex. PW2/A. She admitted that she had told her age as 19 years before Ld. M.M. She stated that she is not aware if her date of birth is mentioned as 11.2.01 at Nigam Prathmik Vidhyalya No. 1, Mandawali, Fazalpur. She admitted that she has studied upto 4th class in the said school. She denied the suggestion that accused had forcibly taken her from her house and had forcibly married her in Village Madhepura, Bihar. She admitted that on 29.11.12 when she left her house and went with FIR No. 553/12 page 4 of page 8 accused she was aware that she was less than 18 years of age. She admitted that she had married with accused knowing that she was less than 18 years of age. During cross by accused she admitted that she married with accused in Bihar and after marriage she had also gone to the Court of Madhepura, Bihar and there she and accused had signed an affidavit. She admitted that on her affidavit Ex.PW2/DA she had given her aged as 19 years. She admitted that a daughter was born to her on 29.7.13 at 10 p.m and she died at 2 a.m same night. She admitted that her parents were not happy with her relationship with accused and due to his reason they had falsely implicated accused in this case. She admitted that accused had not forcibly taken her anywhere and she had gone with her consent.
10. Ex.PW2/A is the statement of prosecutrix recorded by Sh. Sujit Saurabh, Ld. M.M. In this statement she has given her age as 19 years and has stated same facts as deposed by her before this Court.
11. Complainant PW1 and IO PW7 are the two witnesses of recovery of prosecutrix from possession of accused from his house at Purnia, Bihar. This fact is not disputed by accused. Hence, statement of PW1 and PW7 in this regard are not discussed.
12. In view of the facts of this case, age of victim is very material considerable. While deposing before this Court she has given her age as 20 years. But in her statement Ex.PW2/A u/s. 164 CrPC she has given her age as 19 years. As per the school record produced by PW4 her date of birth is mentioned as 11.2.01. Whereas in the complaint her age is given as 13 years.
FIR No. 553/12 page 5 of page 8 Complainant PW1 during his crossexamination has stated that he got married in his Village at UP about 21 years ago. He shifted to Delhi about 10 years ago and he had brought prosecutrix from Village to Delhi 2 years back and got her admitted in 4th class. Prosecutrix had already completed her 5th class in Village. Prosecutrix was admitted in the school in the year 2012 but he does not remember the date and month and in his examinationinchief PW1 has stated that he has four children and prosecutrix is his eldest daughter and he has three sons who are aged 11,9 and 7 years.
13. As per the school record produced by PW4, prosecutrix was admitted in the school on 17.8.10 in 3rd standard. In this record her date of birth is mentioned as 11.2.01.
14. Except the school record no other documentary proof regarding exact date of birth has been proved on record by the prosecution. As already discussed as per PW1 prosecutrix was brought to Delhi from her native village which is about 2 yeas ago and she had already passed 5 th class there. As per PW1 he is married for the last 21 years and prosecutrix is his eldest child. As per him his eldest son is 11 years of age. As per school record prosecutrix was only aged 11 years at the time of this incident. From all this it stands established that her date of birth is wrongly mentioned in the school records. The relevant point to be seen here is that what was her approximate age at the time of this incident.
15. Ex.PW2/DB is the affidavit filed by prosecutrix, duly attested by Notary at Udakishanganj, Madhepura, Bihar where her age is mentioned as FIR No. 553/12 page 6 of page 8 19 years. It also bears joint photograph of accused and prosecutrix. It is also mentioned in this affidavit that she had married with accused. As already discussed, as per PW1 prosecutrix had already completed her 5th class in her native village and she was admitted in the school here in the year 2012. But as per school record prosecutrix produced by PW4, she was admitted in the school in Delhi on 17.8.10. PW1 has also stated that they got married about 21 years ago and prosecutrix is his eldest child.
16. From statement of complainant PW1, who is father of the prosecutrix, it stands established that date of birth of prosecutrix was wrongly mentioned as 11.2.01 in the application form while admitting her here in Delhi. As per evidence discussed above, it appears that prosecutrix was 1617 years of age at the time of this incident.
17. Prosecutrix has specifically stated that she was in love with accused and on 29.11.12 she had left her house at her own and had met accused at Railway Station and from there they had gone to Village Madhepura, Bihar. Prosecutrix has also stated that she had married with accused there. She has admitted her affidavit Ex.PW2/DB wherein she has stated to have married with accused and has given her age as 19 years.
18. The essential ingredient of the offence of kidnapping as defined u/s. 361 IPC are "taking" or "enticing". The word " take" means to cause to, go to, escort , or to get into possession. What is required is that there must be proof of taking. The prosecution has to prove that the accused had played some active part in the girl leaving her lawful guardian's FIR No. 553/12 page 7 of page 8 house and taking shelter in his house. The word " take" implies want of wish and absence of desire of the person taken. The word " entice" involves an idea of inducement by exciting hope or desire in the other. One does not entice another unless the latter attempted to do a thing which she or he would not otherwise do. The act of prosecutrix while leaving her house at her own is not covered under either 'taking' or 'enticing'
19. As already discussed age of the prosecutrix is found to be 1617 years at the time of this incident. The statement of prosecutrix is silent if before marriage accused established physical relations with her. Prosecutrix has just sated that they married at Village Madhepura, Bihar in a temple and she got pregnant after marriage.
20. Prosecutrix has specifically stated that she is married with the accused and got pregnant after their marriage.
21. In view of the facts and circumstances of this case, prosecution has failed to prove its case against accused beyond reasonable doubt. Accused is thereby acquitted from the offences punishable under Section u/s. 363/366/376 (2) (i) IPC and alternative charge u/s. 6 of POCSO.
File be consigned to the record room.
ANNOUNCED IN OPEN COURT ON 14.02.2014 (SANJAY GARG) ADDL. SESSIONS JUDGE(EAST) 01 KARKARDOOMA COURTS : DELHI FIR No. 553/12 page 8 of page 8