Delhi District Court
These Regard I Rely Upon S. Vardarajan vs State Of Madras 1965 Air on 13 January, 2014
1
IN THE COURT OF SHRI SANJEEV KUMAR: ASJ01: NORTH:ROHINI
DELHI
SC NO: 119/13
FIR NO.327/11.
PS : ALIPUR
U/S: 363/376 IPC.
STATE
VERSUS
PATI RAM,
S/O NATHU RAM,
R/O H.No.6, KAPIL COLONY,
SECTOR46, FARIDABAD,
HARYANA ... Accused
Date of Institution:26.04.2013
Date of Argument:17.12.2013
Date of Decision:13.01.2014
JUDGMENT
1. Brief facts of the prosecution case are that on 25.08.11, Ram Prakash (PW2), father of prosecutrix B (name with held) lodged a complaint to the duty officer regarding missing of his daughter i.e B aged about 18 ½ yrs. since 20.08.11. Duty officer recorded DD no.28 in this regard and gave the same to SI Mahesh. IO/SI Mahesh recorded State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 1 of 18 2 the statement of the Ram Parkash, father of the prosecutrix in this regard and made endorsement for registration of FIR u/s 363 and accordingly FIR of the present case was registered. He verified the age of B from the school. During the investigation, brother in law of B told that he has came to know that boy namely Pati Ram had come to the house of his inlaws with the girl and married with her and keeping her in his village Lahnipur to verify the said fact HC Ramesh was sent to vill. Lakhnipur and he recovered the prosecutrix from the house of accused and brought her to Delhi. SI Mukesh recorded the statement of B and she stated that she has left her house voluntarily and gone with the accused and performed marriage with him and there accused committed sexual intercourse with her and she become pregnant. He got her medically examined from SRHC hospital. Accused was arrested later on from Vasant Kunj area. After completion of investigation he filed the chargesheet u./s 363/376 IPC and accused was put to trial.
2. Ld MM after compliance of provision u/s 207 Cr.P.C committed the case to Sessions Court through Ld District Judge which was assigned to this court.
3. Vide order dated 12.07.13 charge u/s 363/366/376 IPC were State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 2 of 18 3 framed against the accused to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined PW1 B and PW2 Ram Prakash. Besides this accused has admitted copy of FIR as ExPX1, site plan ExPX2, DD no.28A ExPX3, DD no.17A ExPX4, arrest memo ExPX5, contents of statement u/s 164 CrPC ExPW1/A, date of birth certificate given by Principal Municipal Pratibha School ExPX6, date of birth certificate given by Principal Nigam Coed School Bhagnathu Singh K.M. Pur ExPX7, MLC of prosecutrix ExPX8, MLC of accused Pati Ram ExPX9, recovery memo of blood sample and sample seal of accused ExPX10, order of Chairman for placing the prosecutrix in the children home running by Child Welfare Committee ExPX11.
5. Statement of accused was recorded u/s 313 CrPC in which all the incriminating evidence were put to him. Accused admitted that he used to visit to the house of B with brother in law (jija) of B and there B fell in love with him and she made a call to him that she had come to Faridabad in the house of her sister and thereafter she started living with him in a tenanted room for about two months. Thereafter he taken State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 3 of 18 4 her to his native village Lakhnipur. He also admitted that during his stay at tenanted room and at Lakhnipur he had developed physical relations with prosecutrix and also admitted that he has performed marriage with prosecutrix at village Lakhnipur. He further stated that he is innocent and has been falsely implicated in this case.
6. I have heard argument and gone through the record.
7. Ld. APP has argued that prosecutrix is less than 16 yrs. of age as per her school record ExPX6 and since accused has admitted that he had taken the prosecutrix from the lawful guardianship of her parents and then committed sexual intercourse with her, therefore offence u/s 363/366/376 IPC are proved against him.
8. On the other hand, Ld. Counsel has argued that the prosecutrix has herself left her parental house as she was in love with accused and therefore accused has not kidnapped her. He further submits that he performed marriage with the prosecutrix B with her consent. Hence no offence has committed by the accused and has sexual intercourse with the consent of prosecutrix. In support of his argument Ld. Counsel has relied upon Jitender Kumar Sharma V State, 2010 (4) RCR (Criminal) 20.
State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 4 of 18 5
9. I have considered the argument and gone through the record. The accused has been charged for kidnapping of a minor punishable u/s. 363/366 IPC which are reproduced as below:
363. Punishment for kidnapping.--Whoever kidnaps any person from 1[India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 1[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid].
State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 5 of 18 6
10. Section 361 IPC defined kidnapping, which is reproduced below:
361. Kidnapping from lawful guardianship.-- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
11. Hence from the definition of kidnapping it is evident that the consent of a female is immaterial for offence of kidnapping if she is less than 18 years of age. Hence age of prosecutrix is quite relevant in such cases.
12. As per judgment of Jarnail Singh V State of Haryana, 2013 VII AD (SC) 313 it is held that the rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007 to determine the age will be applicable in cases of victim also where victim is a child. The relevant portion of the judgment is reproduced as below:
20. On the issue of determination of age of a State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 6 of 18 7 minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The afore stated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred herein above read as under:
"12. Procedure to be followed in determination of age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) The matriculation or equivalent certificates, if State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 7 of 18 8 available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee for the reasons to be recorded by them, may, if considered necessary, given benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii),
(iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regard such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any or the conclusive proof specified in subrule (3), the court or the Board State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 8 of 18 9 or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in subrule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those dispose off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of juvenile in conflict with law."
Even though, rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 9 of 18 10 appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW - PW6.
13. Therefore, in view of the aforesaid rule 12, the age recorded in the first class in school is to be given most preference, if same is available however where age in school record is without any basis court can look into other evidence.
14. Accused has admitted the school record of prosecutrix issued by Principal Municipal Pratibha School which is ExPX6. As per school record date of birth of prosecutrix is 19.12.95. As per the testimony of PW2 Ram Prakash, prosecutrix has left her house on August 2011 and thereafter he had gone to lodge the report on 19.09.11. Hence, if we take the date 31.08.11 as the date when prosecutrix has left the house of her parents her age comes 15 years six months. Hence the prosecutrix was less than 16 years of age on that day. Hence her consent is immaterial if accused has enticed her or taken her without the consent of her lawful guardian.
15. The important ingredient of Section 361 IPC is whether accused has taken out the prosecutrix B from the custody or her lawful guardian. The PW1 prosecutrix has categorically stated in her State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 10 of 18 11 statement that she was not good in her studies and therefore her father used to beat her as a result of which she had gone from the house of her sister Arti at Faridabad. Accused used to visit with his brother in law (jija) to their in laws house and she fell in love with accused. She has taken the mobile number of accused and before leaving her house she made a call to accused and stated to him that she had come to Faridabad in the house of her sister. Accused insisted and told her to go back to her house but she refused and frankly stated to him that she was in love with the accused and wanted to marry with him. She had arranged a room on tenancy and she started living with accused and developed physical relationship with accused as per her own consent and will. They lived there for two months and thereafter they went to village Lakhnipur and there she married with accused in a temple with the assistance of parents of accused and at present she is living with accused peacefully at Faridabad where parents of accused were also residing. Thus from the testimony of prosecutrix, it is evident that it is the prosecutrix who has left her house and come to the house of her sister at Faridabad and before leaving the house she had made a call to accused that she is coming to Faridabad and told the accused that she State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 11 of 18 12 love with him and despite accused asked her to go back to her house she refused to go back and she herself taken a room on rent where she resided with accused. Therefore it is proved that accused had not taken the prosecutrix or enticed her to go out form the lawful guardianship but she herself has left her house. The accused had not done any positive act, which could be considered that he enticed the prosecutrix D or took her away from the custody of the lawful guardianship of her parents. If prosecutrix has herself left her home without any persuasion from the accused and accused just accompanied the prosecutrix, it could not be said that he entice her or took away her from the lawful guardianship. In these regard I rely upon S. Vardarajan vs State of Madras 1965 AIR 942, 1965 SCR (1) 243, Hon'ble Supreme Court while dealing with almost similar kind of situation has held that:
"In such a case we do not think that the accused can 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. It would, however, be sufficient if the prosecution establishes that though immediately prior State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 12 of 18 13 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. In our, opinion if evidence is to establish one of those thing 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. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, 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"."Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian is said to kidnap such minor or person from lawful guardianship."
It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 13 of 18 14 we have to find out is whether the part played by the appellant amounts to "taking" out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Natarajan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law "taking". There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the SubRegistrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 14 of 18 15 wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompany him the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was of course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or unsophisticated village girl but a senior college.
16. Therefore, in these circumstances, I held that the State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 15 of 18 16 prosecution has failed to prove that accused has kidnapped the prosecutrix and when he had not kidnapped her, accused cannot be convicted for offence u/s 366 IPC. Therefore, I acquit him from the offence u/s 363/366 IPC.
17. The accused has also been charged for rape which is punishable u/s. 376 IPC and rape has been defined in Section 375 IPC as under:
375. Rape.--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 State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 16 of 18 17 consequences of that to which she gives consent. Sixthly.--With or without her consent, when she is under sixteen years of age.
18. The prosecutrix has categorically stated that after leaving her parental house she came to Faridabad and then she resided at a tenanted accommodation with accused where she had developed physical relationship with accused even prior to her marriage with the accused. Accused has not cross examined the prosecutrix to rebut the said fact that he did not commit sexual intercourse with prosecutrix prior to performing marriage with her, therefore said fact remained undisputed. As stated above, the prosecutrix was less than 16 years of age when she resided with the accused at the tenanted accommodation at Faridabad. Therefore her consent for sex is immaterial.
19. As far as judgment relied upon by the accused i.e Jitender Sharma (supra) is concerned, in my view, same is not applicable in the present case because in that case though accused and prosecutrix had sexual intercourse after the marriage when prosecutrix was less than 16 years of age but above 15 years of age, therefore Hon'ble Justice has held that the case was covered in exception to Section 375 IPC. In the State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 17 of 18 18 present case, accused has committed sexual intercourse with the prosecutrix prior to their marriage. Hence it would not be covered under the exception of 375 IPC and since prosecutrix is below 16 years, therefore it is a rape. In these circumstances, I held that prosecution has been able to prove that accused has committed rape with the prosecutrix. Hence, I convict the accused Pati Ram for offence u/s 376 IPC.
ANNOUNCED IN OPEN COURT (SANJEEV KUMAR) On 13.01.2014. ASJ01 (NORTH), ROHINI:DELHI.
State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 18 of 18 19 State V Pati Ram FIR No.327/11 PS Alipur 13.01.2014 Present : Shri A.K.Gupta, Ld. APP for the State.
Accused Pati Ram on bail.
Shri N.D. Pathak, counsel for accused.
Vide separate detailed judgment, accused is convicted for offence u/s 376 IPC and acquitted for offence u/s 363/366 IPC.
Heard on sentence.
It is submitted by Ld.counsel that convict and prosecutrix/victim had performed marriage and are living together and as husband and wife and one child has been born out of said wedlock who is aged about 1 ½ yrs and further submits that convict is the only bread earner and sentencing him would amount to punishing the victim and her child besides accused. Ld. Counsel further submits that parents of prosecutrix have no objection. Ld. Counsel further submits that convict remained in JC for one week during trial. Therefore, lenient view be taken.
State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 19 of 18 20 2 On the other hand, Ld. APP submits that convict has committed rape of a minor girl and since consent of prosecutrix was immaterial, therefore, maximum sentence be awarded.
I have considered the argument and gone through the record. Though, as per Section 376 IPC minimum sentence for rape is seven years except where there are adequate and special reason to impose sentence less than seven years. In this case, there are sufficient reason to award less sentence as convict and victim are married and having child, they are living together and in case convict is sent to jail, then it would amount to punish the victim who has settled live with the convict. The convict has committed sex with the victim with her consent as they were in love with each other and offence of rape is made out only because at that time victim was less than 16 years of age, hence it is rape in technical terms. Therefore taking into account all the facts and circumstances, I convict the convict Pati Ram for the period already undergone with fine of Rs.5000/ in default of payment of fine, he shall undergo SI for a period of five months.
State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 20 of 18 21 3 The convict seeks time to pay the fine. In the interest of justice, he is granted five days time to deposit the fine. Thereafter file be consigned to record room. A copy of judgment and sentence be supplied to convict free of cost.
(Sanjeev Kumar) ASJ01, North, Rohini, Delhi.
13.01.2014 State V PATI RAM FIR no.327/11 PS ALIPUR Page No. 21 of 18