Delhi District Court
State vs Bharat @ Yogewsh -Sc No. 70/10 1/6 on 16 March, 2011
ID No.02403R0266402010
IN THE COURT OF SH. VINAY KUMAR KHANNA,
ADDITIONAL SESSIONS JUDGE04 (SOUTH EAST)
SAKET COURTS: NEW DELHI
Sessions Case No. 70/10
ID No. 02403R0266402010
FIR No. 91/10
PS : Jaitpur
U/s. 363/376 IPC
State
Versus
Bharat @ Yogesh
s/o Sh. Rajender
r/o 925, Mandapur, Khadar, PhaseIII,
Raj Nagar, New Delhi. .........................Accused
Instituted on : 28.09.2010.
Judgment Reserved on : 16.03.2011
Judgment pronounced on : 16.03.2011
J U D G M E N T
Accused in this case has been charged for the commission of offence punishable u/s 363, 376 IPC.
2 Briefly stated the case of the prosecution is that Smt. Rekha @ Bala (PW3), mother of the prosecutrix lodged a report that on 27.04.2010, her daughter (Prosecutrix) aged 13 years, studying in 8th Class, had gone to school at about 07:00 am, but she did not returned back. Complainant suspected that her neighbour Bharat @ Yogesh had taken her away. FIR No.91/10 was registered u/s 363 IPC. IO/ASI Rajpal flashed the abovesaid information through wireless all over India. On 02.05.2010, prosecutrix and accused came together at the Police Station. After making inquiries, Prosecutrix and accused were taken for medical examination to AIIMS Hospital. Statement of prosecutrix u/s 161 Cr.P.C was recorded and accused was arrested. Prosecutrix's statement u/s 164 Cr.P.C. was got recorded in which prosecutrix stated that her parents and uncle used to scold her and wanted to marry her State Vs Bharat @ Yogewsh -SC No. 70/10 1/6 ID No.02403R0266402010 with a aged person and therefore, she had left her house alongwith the accused. She stated that accused was not taking her with him, but she insisted to go with him to Hapur. She further stated that accused established physical relations with her at his office Kalkaji with her consent. Offence u/s 376 IPC was added. On completion of investigation, chargesheet was filed in the court of Ld. Metropolitan Magistrate on 30.07.2010, who committed the case to the court of Sessions on 09.08.2010. Charges u/s 363, 376 IPC were served to the accused on 28.09.2010 to which accused pleaded not guilty and claimed trial.
3. In order to establish accusations against the accused, prosecution examined five witnesses in all. Prosecutrix (PW1), Smt. Raj Kumar (PW2), TGT, Govt. Girl Sr. Secondary School, Smt. Rekha @ Bala (PW3), Mother of the prosecutrix, Sh. Dilip (PW4) Father of the prosecutrix and ASI Rajpal (PW5) Investigating Officer.
4 On conclusion of prosecution evidence, incriminating evidence on record was put to the accused u/s 313 Cr.P.C. Accused pleaded innocence and false implication.
5. I have heard the submissions advanced by Sh. R. K. Gurjar, Ld. Additional PP for the State and Sh. Gaje Singh, Ld. Defence Counsel and have perused the material on record carefully.
6. Points which emerge for determination in this case are :
(i) What is the age of the prosecutrix?
(ii) Whether accused took or enticed prosecutrix out of the lawful keeping of her guardian without the consent of her guardian?
(iii) Whether accused committed rape on the persons of prosecutrix?
7. Point(i) Age of Prosecutrix PW2 Smt. Raj Kumari, teacher from Govt. Girls Sr. Secondary School, J. J. Colony, Madanpur, Khadar, Delhi, appeared and produced Admission Register. PW2 deposed that according to school record (Ex.PW2/A) the date of birth of prosecutrix is 17.03.1998 and she was a State Vs Bharat @ Yogewsh -SC No. 70/10 2/6 ID No.02403R0266402010 student of 8th class. In the cross examination she deposed that except school leaving certificate there was no other proof of age alongwith the admission form. Date of alleged offence is 27.04.2010. According to school leaving certificate her date of birth was 12 years and one month. On the MLC, prepared on 07.05.2010, her age is mentioned as 13 years. In the history recorded by the doctor, according to the prosecutrix, she was 16 years old. Her mother, Smt. Rekha @ Bala (PW3), first informant deposed that her daughter, the prosecutrix was born at home on 27.08.1992. She was cross examined by Ld. Addl. PP for the State. PW3 admitted that she told police that age of her daughter was 13 years. PW3 deposed that she did not tell to the police that the date of birth of her daughter was 17.03.1998. PW3 categorically denied the suggestion that correct age of her daughter was 17.03.1998. She clarified that date of birth '17.03.1998' mentioned in the school leaving certificate was not correct and was got recorded by her father inlaw and prosecutrix's correct date of birth was 27.08.1992. Prosecutrix (PW1) deposed that her date of birth was 27.08.1993. In the cross examination by Ld. Addl. PP, prosecutrix deposed that her date of birth '17.03.1998' was wrongly mentioned in the school record by her mother. She deposed that she remained ill for 2-3 years when she was young and her throat was operated upon. Therefore, instead of '27.08.1993' they got it recorded as '17.03.1998'. PW1 admitted that she told her age as 16 years to the Magistrate, who recorded her statement.
8 Admittedly, there is no document or proof produced from the school to show that date of birth of prosecutrix was correctly recorded in the school. Ld. Counsel for the accused relied upon "Sunil Vs. State of Haryana, reported as 2010 (1) CC Cases (SC 148), in support of his submission. It is submitted that in this case, school leaving certificate was produced by the prosecution, but prosecution failed to produce any admission form of the school which was the primary evidence regarding age of the proseuctrix. No ossification test was got conducted and the father of the prosecutrix had given State Vs Bharat @ Yogewsh -SC No. 70/10 3/6 ID No.02403R0266402010 a approximate date without any basis or record. It was held that the conviction could not be based on an approximate date which was not supported by any record and it would be quite unsafe to pass conviction on a approximate date". Smt, Rekha @ Bala (PW4), the mother of the prosecutrix was cross examined by Ld. Addl. PP. In her cross examination, she deposed that she did not tell to the police that date of birth of her daughter is 17.03.1998. She was confronted with her statement u/s 161 Cr.P.C. where it was so recorded. She denied the fact that correct date of birth of her daughter was '17.03.1998' or she had told to the police same date of birth. No birth certificate or any proof of the birth was filed alongwith the admission form of the prosecutrix . No ossification test of the prosecutrix has been conducted. Evidence on record regarding the age is doubtful and ambiguous . Present case is on a better footing than the aforesaid case, as the date of birth given by Mother of the prosecutrix is '27.08.1992', according to which prosecutrix's age would be 17 years 8 months on the date of the incident. According to prosecutrix her date of birth is 27.08.1993, which means her age was 16 years and 8 months on the date of offence. Thus, in any case, it stands established that the age of the prosecutrix is above 16 years.
9. Point(ii) Whether accused took or enticed prosecutrix out of the lawful keeping of her guardian without the consent of her guardian?
Legal position is well settled that the consent of minor is wholly immaterial. Persuasion of accused which creates willingness on the part of the minor is sufficient to attract the section (Prakash vs State of Haryana AIR 2004 SC 227). The two words "taken" and "entices" as used in section 361 IPC are intended to be read together, so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leave her parental home completely uninfluenced by any promise, or inducement emanating from the guilty party, then the later cannot be considered to have committed the offence as defined in section 361 IPC (Thakor Lal D Vadgama AIR 1973, Supreme Court 2313).
State Vs Bharat @ Yogewsh -SC No. 70/10 4/6ID No.02403R0266402010
10. In this case, Prosecutrix (PW1) deposed that she was residing with her parents, grand parents as well as Uncle and aunty at House No. 908, Madanpur, Khadar, J. J. Colony, PhaseIII, New Delhi. Her father had scolded her on 27.04.2010, when she was asking for a guide book, which was refused by her father and in anger she left her house. When she came out, accused Bharat @ Yogesh, residing in front of his house met him on the road. She knew accused very well and they used to talk to each other since 23 months prior to this incident. PW1 categorically deposed that there was a love affair between them. Prosecutrix deposed that accused was going to his office and she requested him to take her with him. Initially accused refused to take her with him, but she insisted to take her with him and told him that her father had scolded him (Jidd karne par Bharat @ Yogesh razi ho gaya) and only her insistence accused became ready. She reached at Kalkaji at the office of accused where accused received a telephonic call from the house of his maternal uncle from Hapur that his maternal uncle was very sick and was called there. Prosecutrix testified that accused Bharat @ Yogesh asked her to return back to her house as he could not accompany him to drop him at her house, but she told him that she could not go back to the home. Prosecutrix categorically stated that accused was not taking her with him to Hapur, but she again insisted and was adamant to go with him to Hapur and only thereafter, accused took her with him to Hapur.
11. Sh. Dilip (PW4), Father of the prosecutrix deposed that he came to know that his daughter had gone away with the accused Bharat @ Yogesh. Smt. Rekha @ Bala (PW3), mother of the prosecutrix did not depose anything against the accused in this regard. Testimony of the prosecution witnesses, fails to establish that accused played any role in enticing or alluring the prosecurtrix. There is nothing in the testimony of prosecutrix to show that accused encouraged prosecutrix to accompany him. Rather, it appears that the prosecutrix was adamant and insisted the accused to accompany her. There is nothing in the cross examination of prosecutrix conducted by Ld. Addl. PP for State Vs Bharat @ Yogewsh -SC No. 70/10 5/6 ID No.02403R0266402010 the State, which could be of any help to the prosecution. In view of the aforesaid evidence on record, I hold that prosecution has failed to establish beyond reasonable doubt that accused enticed prosecutrix out of the lawful keeping of her guardian without the consent of her guardian?
12. Point (iii)Whether accused committed rape on the person of prosecutrix?
Prosecutrix has deposed nothing in this regard, in her examination in chief. In her cross examination by Ld. Addl. PP for the State, PW1 admitted that she had told to the magistrate on 27.04.2010 that she established physical relation with accused with her consent. In response to a suggestion, she admitted that she established physical relation with accused with her consent at his Kalkaji Office. Smt. Rekha @ Bala (PW4) her mother deposed that nothing untoward happened with her daughter and prosecutrix told her that nothing wrong happened with her. Sh. Dilip (PW1), father of the proseuctrix has not uttered anything regarding the commission of rape on the person of prosecutrix. There is nothing in the testimony of the prosecution witnesses to indicate that accused had forcibly establish physical relation without her consent or against her will. This court finds that prosecution has failed to establish beyond the shadow of reasonable doubt that accused committed rape on the person of prosecutrix.
13. To conclude, evidence on record clearly shows that the version of the prosecution that the prosecutrix had been confined, kidnapped or raped is not worthy of credence. Prosecution having failed to prove the guilt of accused beyond the shadow of reasonable doubt, consequently, accused is acquitted from the charges. File be consigned to Record Room.
announced in the open court on th 16 March 2011. (VINAY KUMAR KHANNA) Additional Sessions Judge04 (SouthEast) Saket/New Delhi State Vs Bharat @ Yogewsh -SC No. 70/10 6/6 ID No.02403R0266402010 SC No. 70/10 FIR No.90/10 PS : Jaitpur.
16.03.2011 Present : Sh. R. K. Gurjar, Ld. Addl. PP for the State.
Accused produced from J/C. Sh. Gaje Singh, Ld. Counsel for accused.
Heard. Vide separate judgment announced in the open court, accused is acquitted from the charges. The bonds which have been furnished by the accused shall remain valid for a period of six months as required u/s 437A Cr.P.C..
File be consigned to Record Room.
(VINAY KUMAR KHANNA) Additional Sessions Judge04 Saket Courts, New Delhi State Vs Bharat @ Yogewsh -SC No. 70/10 7/6