Delhi District Court
State vs . Ajay on 22 December, 2011
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO:02401R0166532010
SC NO: 371/2010
FIR NO: 298/2009
U/s 363/366/376 IPC
PS : Pahar Ganj
STATE vs. Ajay
JUDGMENT
1 Sl. No. of the Case SC NO: 371/2010 2 Date of Committal to Sessions 27.04.2010 3 Received by this court on transfer 19.04.2011 4 Name of the complainant Sonia 5 Date of commission of offence 15/16.12.2009 6 Name and Parentage of accused AJAY S/O SH. JAWAHAR SINGH R/O Q43, SULTAN PURI, DELHI. AGE: 21 YRS ( DHOLE BEATER) 7 Offence complained of 363/366/376 IPC 8 Offence charged 363/366/376 IPC 9 Plea of guilt Pleaded not guilty 10 Final order ACQUITTED 11 Date on which order reserved 22/12/2011 12 Date on which order announced 22/12/2011 BRIEF REASONS FOR DECISION
1. Case of the prosecution as per charge sheet is that on on 16.12.2009 in the morning complainant Lakhmi Chand came to PS Paharganj and gave his Page 1/16of Judgment State Vs. Ajay dt: 22.12.2011 2 statement Ex.PW2/A to SI Ram Khiladi to the effect that he is an Auto rikshaw driver and has a 16 yrs old daughter namely Sonia. His daughter is missing since 8.30 pm on 15.12.2009 when she had left her house after telling her mother Smt. Geeta that she would be back after buying goods from the shop. Complainant expressed apprehension that somebody has enticed Sonia away. On this statement ruqqa Ex.PW16/A was prepared and FIR Ex.PW16/B was registered U/s 363 IPC.
2. On 3.1.2010 Sonia was recovered from the custody of accused Ajay from Q 43, Krishan Vihar, Sultan Puri, Delhi. After recording of statement of Sonia, accused Ajay was arrested vide memo Ex.PW4/A and his personal search was conducted vide Ex.PW1/B. Accused gave disclosure statement Ex.PW13/B, pointed out the place of kidnapping vide memo Ex.PW15/C , his under garments , nail clippings , pubic hairs and semen were seized vide memo Ex.PW1/A. Salwar Ex.P1 of Sonia was seized vide memo Ex.PW1/B, Police also seized compact disc said to be of marriage of accused Ajay and Sonia vide memo Ex.PW15/D . Prosecutrix Sonia was medically examined vide MLC Ex.PW8/A as per which she told the Doctor Page 2/16of Judgment State Vs. Ajay dt: 22.12.2011 3 that she had sexual intercourse with accused several times during her stay with accused. Accused was also medically examined vide MLC Ex.PW13/A. According to seized School Register PW10/A and Ex.PW10/B Sonia's date of birth is 4.3.1994 . Exhibits were sent to FSL vide road certificate Ex.PW6/A and acknowledgment Ex.PW6/B copy of malkhana register bearing entries are Ex.PW5/A to C . Report being Ex.PY, PZ. Statement of prosecutrix U/s 164 Cr.P.C. was recorded before Ld. Magistrate Ex.PW7/A. Photographs of Sonia Ex.PW9/A, photographs of purported marriage of accused Ajay and prosecutrix Sonia are Ex.PX and PX1.
3. After conclusion of investigation , charge sheet U/s 363/366/376 IPC was filed. After compliance of 207 Cr.P.C, case was committed to Sessions. During the course of trial accused was charged for commission of offence punishable U/s 363/366/376 IPC by Ld. Predecessor on 5.10.2010.
4. To prove its case prosecution examined 17 witnesses in all. It was followed by recording of Section 313 Cr.P.C. statement of accused . Accused did not lead any evidence in his defence.
5. I have heard arguments of Ld. Addl. PP Sh. V.K.Negi for State and Ld. Page 3/16of Judgment State Vs. Ajay dt: 22.12.2011 4 Legal Aid Counsel Ms. Chitra Mal advocate for accused. I have also carefully perused the entire case file.
6. PW1 Ct. Asha Rani joined the investigation at the time of arrest of accused apart from recovery of prosecutrix.
7. PW2 is complainant Lakshmi Chand. He deposed on the lines of the prosecution case and identified accused in the court .
8. PW3 is Geeta, mother of prosecutrix. She also deposed on the lines of prosecution case.
9. PW4 Const Anand joined investigation at the time of arrest of accused.
10.PW5 is HC Satinder MHCM, he proved the relevant entries of the malkhana register.
11.PW6 is Ct. Satywan who deposited exhibits with FSL.
12.PW7 victim Prosecutrix Sonia deposed that she had met accused while going to Agra in a marriage where accused befriended her. Accused enticed her to his house at Sultanpuri and detained her against her wish under the threat of harming her family. She also deposed that accused performed marriage with her against her wishes and had sexual intercourse with her Page 4/16of Judgment State Vs. Ajay dt: 22.12.2011 5 repeatedly .
13.PW8 is Dr. Karuna who proved MLC of prosecutrix.
14.PW9 is Parmod Tiwari who is said to be Pujari of Hanuman Mandir at Sultanpuri.
15.PW10 is Smt. Ravinder Sodhi , Principal of NDMC School who proved school record of prosecutrix.
16.PW11 Mithlesh Singh also proved the school record.
17.PW12 is Raj Singh , landlord of the house from where prosecutrix was recovered from the custody of accused.
18.PW13 is Dr. Harminder Kaur who proved MLC of accused.
nd
19.PW14 SI Raman Kumar is 2 IO of this case who got Sonia recovered and arrested the accused.
20.PW15 is ASI Sushila who joined the investigation in this matter.
21.PW16 is Retd. SI Ram Khiladi, initial IO of this case.
22.PW17 is Sh.Sidharth Mathur, Ld. MM who recorded 164 Cr.P.C statement of prosecutrix Sonia.
23.In the case in hand as per Section 375 Cr.P.C. prosecution was supposed to Page 5/16of Judgment State Vs. Ajay dt: 22.12.2011 6 prove that prosecurtix Sonia was a girl of less than 16 years of age as on 16.12.2009. Exception 6 of Section 375 IPC provides that sexual intercourse is rape only when the same is committed with or without the consent on a lady aged less than 16 years.
24.Section 375 IPC runs as under:
Section 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 SecondlyWithout her consent ThirdlyWith 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.
FourthlyWith 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 consequences of that to which she gives consent.
Sixthly With or without her consent, when she is under sixteen years of age.
Page 6/16of Judgment State Vs. Ajay dt: 22.12.2011 7
25.As far as age of prosecutrix Sonia is concerned , it is admitted by Ld. Addl. PP that no birth certificate has been placed or proved on record. Prosecution has examined PW10 and PW11 , teachers of the school said to have been attended by Sonia. They have exhibited on record admission forms of their respective schools as Ex.PW10/A & B and Ex.PW11/A & B. Close scrutiny of these exhibits show that the first school record is admission form dated 7.4.98 Ex.PW10/B. Even though as per prosecutrix Sonia, name of her mother is Geeta but as per this document the child's mother is Radha . This anomaly raises suspicion over the authenticity of the document. Further this document reveals that initially the Date of Birth was mentioned as 4.3.1993 at two places but the same has been cut and over written / forged as 4.3.1994. If the date of birth claimed by the prosecution i.e. 4.3.1994 is considered , prosecutrix Sonia's age comes to 15 yrs, 9 months & 12 days and in case it is considered as per the originally written date in the form Ex.PW10/B i.e. 4.3.1993, it comes to 16 yrs 9 months and 12 days. The subsequent set of school documents are later in time and are primarily based on the above earlier record. As far as evidentiary value of school document, in the absence Page 7/16of Judgment State Vs. Ajay dt: 22.12.2011 8 of birth record, Hon'ble Supreme Court has specifically laid that "School Record is of not much evidentiary value and can not be regarded as a conclusive proof of the age."
26.In case titled "Dilip Singh Vs. State " (2005)1 SCC 88 Hon'ble Supreme Court while discussing the evidentiary value of School Transfer Certificate observed, "A School Transfer Certificate cannot be accepted as conclusive print of date of birth of victim girl, especially when its authenticity is not established by cogent evidence."
27.In the case tilted as BM Sidhwi v. Anand Purohit 1988 SUPP. SCC 604 Hon'ble Supreme Court of India observed that:
"while dealing with the issue of determining of age of an accused Juvenile on the basis of school register to render the documents admissible u/s 35 (Evidence Act), three conditions must be satisfied, firstly, entry that is relied on must be one in the public or other official book, register or record. Secondly, it must be an entry stating a fact in issue or relevant fact and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially adjoined by law. An entry relating to date of birth made in the school register is relevant and admissible u/s 35 (Evidence Act). What the entry regarding the age of a Page 8/16of Judgment State Vs. Ajay dt: 22.12.2011 9 person in a school register is of not much evidentially value to prove the age of the person in the absence of the material on which the age was recorded."
28.In case titled as Ravinder Singh Gorkhi v. State of UP (2006) 5 SCC 584, it was ruled that:
"determining of the age of birth of a person before the court of law, whether in a civil proceeding or a criminal proceeding, would depend upon the facts and circumstances of the case. Such a date of birth has to be determined on the basis of materials on record. It will be a matter of appreciation of evidence adduced by the parties. Different standards having regard to the provisions of section 35 (Evidence Act) cannot be applied to a civil case or a criminal case."
29.In the case titled as Jyoti Prakash Rai v. State of Bihar AIR 2008 SC 1696 Hon'ble Supreme Court of India opined that "until and unless the material on the basis of which entry of age is made in the school register, is produced, school register is of not much evidentiary value u/s35(Evidence Act)."
30.In the case titled as Babloo Pasi v. State of Jharkhand, AIR 2009 SC 314 Hon'ble Supreme Court of India. It was observed that in the absence of birth certificate entry in the school registers qua age is of not much evidentiary value. It was also opined that even a medical opinion qua the Page 9/16of Judgment State Vs. Ajay dt: 22.12.2011 10 age of the offender is not a conclusive proof of the same."
31.The documentary proof in the light of aforesaid case laws reveals that these documents placed and proved by the prosecution on record, no where conclusively establishes that the prosecutrix Sonia was less than 16 yrs of age. Apart from the documentary evidence oral statements have also been made qua the age but as per Section 92 and 93 of the Evidence Act the date of birth and age has to be proved by documentary evidence and oral evidence can not be accepted as corroboration or contradiction to the document.
32.Having concluded that the prosecution has failed to establish on record that prosecutrix was aged less than 16 yr on the date of her claimed kidnapping , it has to be seen whether the claimed instances of sexual intercourse were with her consent or sans her consent.
33.In her deposition as PW7, prosecutrix Sonia initially deposed that she was induced by accused to accompany him and it was followed by performance of marriage against her wishes. But this plea does not stand ground in so far as in her own cross examination she conceded that when she left her house , Page 10/16of Judgment State Vs. Ajay dt: 22.12.2011 11 she herself told her mother that she is going to make some purchases from the market . This fact is corroborated by both her parents namely PW2 Laxmi Chand and PW3 Geeta. Even the concerned Priest PW9 Parmod Kr. Tiwari deposed that both of them were appearing quite happy when they visited the Mandir for marriage and Sonia did not make any complaint whatsoever. Also a plain look at the marriage photograph Ex.PX makes it clear beyond shadow of any doubt that prosecutrix Sonia is gleefully happy and has adorned full bridal attire. She appears to be miles away from any sort of inducement, pressure or coercion. Further more PW7 Sonia deposed in the Court that during her stay with the accused of around 20 days, she did not even try to inform her parents or the police in any manner. As far as sexual intercourse is concerned, she gave categorical statement that after the marriage , accused had sex with her only with her consent. Once this plea has come on record , ingredients of Section 375 IPC punishable U/s 376 IPC does not stand proved.
34.The other offences charged against the accused are under Section 363 and 366 IPC i.e. kidnapping a women to compel her for marriage. As far as Page 11/16of Judgment State Vs. Ajay dt: 22.12.2011 12 offence of kidnapping is concerned, the term kidnapping stands defined in law under Section 359 IPC as under
35. Section 359: Kidnapping - Kidnapping is of two kinds : kidnapping from India, and kidnapping from lawful guardianship.
36. Section 361 IPC 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.
37. As such in order to secure conviction prosecution is supposed to establish on record following ingredients.
Ingredients of offence U/s 361 IPC
38. The essential ingredients of the offence under section 361 are as follows:
(1)The accused took or enticed away a minor or a person of unsound mind;
(2)Such minor, if male must be under 16 years of age and , if female under 18 years of age;
(3)The act must be one of taking or enticing out of the keeping of the lawful guardian of such minor or person of unsound mind;
(4)The act of taking or enticing away must be done without consent of the lawful guardian.
Page 12/16of Judgment State Vs. Ajay dt: 22.12.2011 13
39.In order to bring a case under Section 363 IPC, additional ingredient supposed to be proved is that such kidnapping was to compel the prosecutrix Sonia to marry against her will or to have illicit intercourse.
40.From the material available on record, it is evident that prosecutrix Sonia left her parental house on the night of 15.12.2009. As concluded supra, she left her house on her own after telling her parents that she is going to buy some goods. Rather she accompanied accused Ajay to his Sultanpuri House. Thereafter they are shown to have got married. However, as referred to and concluded supra, the sheer fact that the prosecutrix Sonia continued to live with Ajay for around 3 weeks without even trying to inform her parents or police, shows that she left her house , got married and stayed and made physical relations with accused out of her own sweet will.
41.As far as age is concerned, unlike Section 375 IPC where the relevant age is less than 16 yrs , Section 361 requires age to be less than 18 years. On this score it has been vehemently argued by Ld. defence counsel that prosecution has miserably failed to establish on record by way of any creditworthiness evidence that prosecutrix Sonia was aged less than 18 Page 13/16of Judgment State Vs. Ajay dt: 22.12.2011 14 years. Once the documents placed and proved by the prosecution are found to have been manipulated and uncreditworthy , they can not be relied to conclude that prosecutrix Sonia was aged less than 18 years. Hence, I have no hesitation in concluding that prosecution has also failed to prove ingredients of kidnapping so as to make out a case U/s 363 & 365 IPC.
42. It goes without saying that it is very basic to criminal jurisprudence that guilt of the accused has to be duly established by the prosecution beyond shadow of doubt. Whenever prosecution comes up with a story which is infested with doubts and where the material available on record does not conclusively establish the guilt of the accused, the benefit thereof shall always go to the accused.
43.In case titled Sohan and Another Vs. State of Haryana and Another (2001) 3 SCC 620 it has been observed by Hon'ble Supreme Court that :
''An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words , the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubts on the basis of evidence. In this case, if only the Sessions Judge had reminded himself Page 14/16of Judgment State Vs. Ajay dt: 22.12.2011 15 of the above mentioned basic or fundamental principles of criminal jurisprudence, direction of his approach and course of his appreciation of evidence would have been different and thereby perversity in appreciation of evidence could have been avoided.''
44.In case titled Sharad Birdhichand Sarda AIR 1984 SC 1622 it has been observed by Hon'ble Supreme Court that :
"Where on the evidence two possibilities were available, one which went in the favour of the prosecution and the other which benefited the accused, the accused was undoubtedly entitled to the benefit of doubt. The principle had special relevance where the guilt of the accused was sought to be established by evidence."
45.In case titled Manzoor Vs. State of U.P. (1982) 2 SCC 72 while dealing with the acquittal of accused in benefit of doubts it has been observed by Hon'ble Supreme Court that :
"Prosecution failing to prove the guilt of accused satisfactorily beyond all reasonable doubtHence, the accused must be acquitted."
46. In view of the above detailed discussion, I have no hesitation in concluding that prosecution has failed to establish the guilt of accused beyond shadow of doubt. Accordingly benefit of doubt is given to accused, accused stands Page 15/16of Judgment State Vs. Ajay dt: 22.12.2011 16 acquitted from the charge . He be released from J/c forthwith if not required in any other case. Personal bond be furnished on behalf of accused which shall be deemed canceled after expiry of period of appeal. File be consigned to RR.
ANNOUNCED AND DICTATED IN OPEN COURT ON: 22.12.2011 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page 16/16of Judgment State Vs. Ajay dt: 22.12.2011