Delhi District Court
Sc No.57610/16 State vs . Neeraj on 14 December, 2017
SC No.57610/16 State Vs. Neeraj
IN THE COURT OF MS. SEEMA MAINI
ASJ01 / SPECIAL JUDGE : POCSO ACT ( NORTH ):
ROHINI COURTS : DELHI
In the matter of:
(Sessions Case No.57610/16)
Unique Identification No. 02404R0367612014
FIR No. 748/14
Police Station Mukherjee Nagar
Under Section 363/376 IPC
& 4 POCSO Act
State V/s Neeraj
S/o Lt. Vishnu Prasad Gupta
R/o H.No. 10B, Malikpur
Village K Camp, Delhi.
......Accused
Date of institution of case 17.09.2014
Date of arguments 08.12.2017
Judgment Pronounced on 08.12.2017
Decision Convicted
J U D G M E N T
1.The accused Neeraj is facing trial in the present case on allegations of having kidnapped the victim A @ K (identity withheld), aged about 14 years, and having committed aggravated / repeated penetrative Judgment : FIR No. 748/14 page 1 of 36 SC No.57610/16 State Vs. Neeraj sexual assault / rape upon her.
2. The facts in brief, which are borne out from the record are that in the year 2014, victim A @ K, aged about 14 years (at that time), was residing in village Malikpur, alongwith her family, and was studying in S.K. Vidhalya, Dhaka in 9th class. Accused Neeraj was residing in the gali, adjoining to the gali, in which the victim was residing. Accused enticed her by stating that he was in love with her, and wanted to marry her. Though initially the victim refused, but later on being enticed by the accused on the pretext that he would marry her and would keep her happy, the victim agreed and developed good relations with him. The accused enticed the victim and took her to his house, and established physical relations with her. Thereafter, the accused forcibly established physical relations with her for 56 times. On 17.07.2014, at about 11.00 PM - 12 midnight, on the asking of the accused, the victim met him, and thereafter he took the victim to the room of his friend at Mukundpur and established physical relations with her. Accused had also approached the mother of the victim for his marriage with the victim, but she refused and even prohibited the victim to meet the accused, but they continued meeting each other. On 18.07.2014, the mother of the victim caught the victim red handed in the company of the accused and gave her beatings. The mother of the victim informed the police, and the same was reduced into writing vide DD No. 14 A.
3. The DD No. 14 A was assigned to ASI Umed Pal, who reached at the spot alongwith Ct. Satya Prakash, where the victim and her mother who is the complainant, were met, and the complainant complained that Judgment : FIR No. 748/14 page 2 of 36 SC No.57610/16 State Vs. Neeraj the accused Neeraj, who is residing in the adjoining Gali, had established physical relations with her daughter. Since the matter pertained to a victim girl, on the call of ASI Umed Pal, W/Ct. Priyanka reached at the spot, and took the victim to BJRM Hospital for her medical examination. The victim was got medically examined and her MLC was prepared, and the sexual assault kit was handed over to the police personnels. NGO officials were called in the hospital itself, and after counselling of the victim, her statement was recorded, on the basis of which IO prepared the Tehrir and handed over the same to W/Ct. Bhagat to get the case registered. IO alongwith W/Ct Priyanka reached at the spot and on the instance of the complainant, the IO arrested the accused vide his appropriate arrest memo and personal search memo. Accused was taken to BJRM Hospital, where he was got medically examined and his samples / exhibits were collected. Victim was got admitted in Rinbow Home Kilkari, Kashmiri Gate, Delhi. The accused led the police officials to the place of occurrence and pointed out towards the bed and the bed sheet, on which he forcibly established physical relations with the victim, and the same were taken into possession and sealed by the IO, and the sealed pullandas were deposited in the Malkhana. On the instance of the accused, the site plan of the place of occurrence was prepared. Later, the accused was taken to BJRM Hospital, where is potency test was conducted.
Victim was produced before the concerned MM to get her statement u/s 164 CrPC recorded. On an application moved by the IO, concerned MM recoded the statement of the victim u/s 164 CrPC, wherein she stated that she was in love with accused Neeraj, who was already married, and on 17.07.2014, accused took her to the house of his Judgment : FIR No. 748/14 page 3 of 36 SC No.57610/16 State Vs. Neeraj friend and they established physical relations. The requisite samples of the victim as well as accused were collected and sent to FSL for expert opinion. After completion of the investigation, the chargesheet was filed by the IO, in the court. Subsequently, the FSL result was obtained and filed in the court by the IO.
4. On appearance in the court, the accused was supplied with the copies, and after hearing the counsel for the accused and Ld. Addl. P.P. for the State, since prima facie case was made out, the accused was charged for the offence u/s 363 IPC and u/s 4 POCSO Act, on 15.11.2014 by the Ld. Predecessor of this court, to which he pleaded not guilty and claimed trial. Subsequently, since as per the allegations, the offence of penetrative sexual assault / rape was repeatedly committed and the offence was in its aggravated form and thus covered u/s 6 POCSO Act ant not u/s 4 POCSO Act, and since the alleged offence was also covered under the provisions of section 376 IPC, vide order dated 23.11.2017, the charge was amended and an amended charge for the offence punishable u/s 363/376 (2) (i) & (n) IPC and for the offence punishable u/s 6 POCSO Act was framed. Accused pleaded not guilty to the amended charge also. Ld. Addl. P.P. for the State stated that after framing of the additional charge, no other witness was required to be examined. Similarly, Ld. Amicus Curiae for the accused stated that after the framing of amended charge, no witness is required to be cross examined afresh, nor any modification in his statement u/s 313 CrPC is required, nor any defence witness is to be examined.
5. To substantiate its case, the prosecution examined fifteen Judgment : FIR No. 748/14 page 4 of 36 SC No.57610/16 State Vs. Neeraj witnesses in all, out of which PW 2, PW 3, PW 4, PW 5, PW 6, PW 7, PW11, PW 12 and PW 13 are formal witnesses, PW 9, PW 10, PW 14 and PW 15 are witnesses of investigation, while the PW 1 and PW 8 are the material witnesses, being the victim herself and her mother respectively.
FORMAL WITNESSES
6. PW 2 Dr. Shweta Sinha, SR, Obs & Gynae, BJRM Hospital deposed that on 18.07.2014, she examined the patient K, female, aged about 15 years, vide MLC No. 81835, and gave her observation from point X to X1 on the said MLC Ex. PW2/A.
7. PW 3 Dr. Gopal Krishan, Medical Officer, BJRM Hospital deposed that on 18.07.2014, a female patient K, aged about 15 years, brought to the hospital by the police, was examined by Dr. Imran, JR, under his supervision, vide MLC no. 81835, already exhibited as Ex. PW2/A. PW 3 further deposed that he was acquainted with the handwriting and signatures of Dr. Dilip Kumar and Dr. Mohit Tiwari, who both had left the services of the hospital and whose whereabouts were not known, as he had worked with them and had seen them writing and signing during the course of their duties, and further deposed that MLC no. 81607 pertaining to accused Neeraj Ex. PW 3/A, was prepared by Dr. Dilip Kumar under the supervision of Dr. Mohit Tiwari, and identified the signature of Dr. Dilip Kumar at point A and that of Dr. Mohit Tiwari at point B on the said MLC.
Judgment : FIR No. 748/14 page 5 of 36 SC No.57610/16 State Vs. Neeraj
8. PW 4 Ms. Shilpi Jain, MM, Tis Hazari Court, Delhi deposed that on 19.07.2014, on an application being assigned to her, she recoded the statement of the victim A @ K u/s 164 Cr.P.C Ex. PW1/B, and identified her signature on the same at point B. Vide order Ex. PW4/A, she allowed for supply of a copy of the statement of the victim u/s 164 Cr.P.C. to the IO.
9. PW 5 HC Niranjan Lal deposed that on 18.07.2014, while posted as Duty Officer at PS Mukherjee Nagar, at about 7.25 am, on receipt of information through PCR call that at Malikpur village one man has committed wrong act with one girl namely K, aged about 13 years, he recorded DD No. 14 A and handed over the same to ASI Umed Pal for investigation, and proved the said DD as Ex. PW5/A.
10. PW 6 Ct. Umesh Kumar, No. 555/N, PS Roop Nagar deposed that on 18.07.2014, while posted as Duty Officer in PS Mukherjee Nagar, at about 2.50 pm, on receipt of Rukka from Ct. Bhagat, sent by SI Raj Bala, he registered the FIR Ex. PW 6/A, and after registration of the FIR, he handed over the copy of the FIR and original Rukka to Ct. Bhagat for handing over the same to SI Raj Bala. He also made an endorsement on the Rukka, which is Ex. PW 6/B and issued a certificate u/s 65 B Indian Evidence Act, which is Ex. PW6/C.
11. Sh. Prem Singh, Incharge, Primary School, Malikpur, Delhi entered the witness box as PW 7 and deposed that one child "A" was admitted in the said school in 1 st class on 11.04.2005 vide admission no.
Judgment : FIR No. 748/14 page 6 of 36 SC No.57610/16 State Vs. Neeraj
1506, and as per record, the date of birth of the child A is 01.04.2000, and proved the copy of the relevant entry in the admission / withdrawal register as Ex. PW7/A, the attested copy of the admission form filled by the mother of the child at the time of her admission as Ex.PW 7/B. The certificate issued by the Principal of the school certifying that the date of birth of the student A is 01.04.2000, was proved on record as Ex. PW7/C.
12. PW 11 HC Deepak, No. 274 NW, PS Mukherjee Nagar deposed that on 18.07.2014, while posted as MHC(M) at PS Mukherjee Nagar, he was handed over four sealed pullandas duly sealed alongwith four sample seals, and he deposited the same in the Malkhana vide entry no. 2919/14. Again on 19.07.2014, he was handed over one sealed pullanda containing a bedsheet, and he deposited the same in the Malkhana vide entry no. 2920/14, copy of which was proved on record as Ex. PW11/A. He further deposed that on 01.08.2014, on the directions of IO, he handed over five sealed pullandas alongwith four sample seals to HC Kailash Chand for depositing the same in FSL Rohini, vide RC No. 39/21/14, which was prooved on record as Ex. PW 11/B, and after depositing the case property with FSL, HC Kailash handed over to him the acknowledgement receipt Ex. PW 11/C. He further testified that till the case property remained in his custody, it was not tampered with, in any manner.
13. PW 12 Ct. Preeti, No. 1372/NE, North East District Line, deposed that on 18.07.2014 while posted as Call Attender at PHQ, at about 7.15 PM, on receipt of an information that a person used to commit wrong act Judgment : FIR No. 748/14 page 7 of 36 SC No.57610/16 State Vs. Neeraj with a girl on regular basis, she recorded the information in the requisite form and the proved the same as Ex. PW 12/A.
14. PW 13 HC Kailash Chand, No. 109 L, Old Police Line, deposed that on 01.08.2014, he took the case property comprising of five sealed pullandas alongwith four sample seals from PS Mukherjee Nagar to FSL Rohini, vide RC No. 39/21/14, and after depositing the same, the acknowledgement receipt issued by the FSL, was deposited by him with MHC(M).
WITNESS OF INVESTIGATION
15. PW 9 Ct. Priyanka, No. 2708/NW, PS Mukherjee Nagar joined the investigation of this case on 18.07.2014 alongwith SI Raj Bala and reached at the spot, and took the victim A @ K to BJRM Hospital for her medical examination. PW 9 further deposed that after medical examination of the victim, the doctor concerned handed over to her the sexual assault kit of the victim and she, in turn, handed over the same to the IO, who seized the same vide seizure memo Ex. PW 9/A.
16. PW 10 Ct. Satya Prakash, No. 2629/DAP, 3rd Battalion deposed that on 18.07.2014, on receipt of DD No. 14 A, by ASI Umed Pal, he accompanied him and reached at H.No. 8485 village Malikpur, Delhi, where Beat Constable Bhagat Singh was already present. They met the complainant and the victim, and since the matter was pertaining to rape upon a girl, ASI Umed Pal informed SHO, on whose instructions, IO SI Judgment : FIR No. 748/14 page 8 of 36 SC No.57610/16 State Vs. Neeraj Raj Bala reached at the spot.
17. PW 14 Ct. Bhagat Singh, No. 2166/ NW, PS Ashok Vihar entered the witness box as PW 14 and deposed that on 18.07.2014, while posted as Beat Constable at Malikpur village, at about 7.30 PM, on receipt of wireless message, he reached at H.No. 8485, Malikpur Village, where he met ASI Umed Pal, Ct. Satya Prakash, complainant and the victim. Since the matter was pertaining to rape having been committed upon a girl aged about 14 years, on the instructions of the SHO concerned, W/SI Raj Bala and W/Ct. Priyanka reached at the spot and he alongwith W/Ct. Priyanka took the complainant and the victim to BJRM Hospital, where the victim was medically examined. After counselling of the victim, IO recorded her statement, and on the basis of the same, prepared the Rukka and handed over to PW 14 for getting the case registered. After getting the case registered, PW 14 reached at the spot alongwith copy of FIR and original Rukka, and handed over the same to the IO. Later, at the instance of the complainant, accused was arrested vide arrest memo Ex. PW8/A and his personal search was conducted vide personal search memo Ex. PW 8/B. He further deposed that the IO recorded the disclosure statement of the accused Ex. PW14/A, and thereafter accused was taken to BJRM Hospital, where he was medically examined and his requisite samples and undergarments were sealed and handed over to him by the doctor, which he, in turn, handed over to the IO, who seized the same vide memo Ex. PW 14/B. He further deposed that the accused pointed out towards the place of occurrence vide Pointing Out Memo Ex. PW 14/C. IO seized a bedsheet from the spot, and sealed and seized Judgment : FIR No. 748/14 page 9 of 36 SC No.57610/16 State Vs. Neeraj the same vide memo Ex. PW 14/D. He further deposed that on 23.07.2014, he got conducted the potency test of the accused.
18. PW 15 Inspector Raj Bala, No. D1451, PS South Rohini deposed regarding the investigation conducted in this case, on the lines of PW 14 Ct.Bhagat Singh. She further deposed that on the basis of the statement of the victim, she prepared the Rukka Ex. PW15/A and handed over the same to Ct. Bhagat for registration of the case. She corroborated the version of PW 14 qua the investigative proceedings conducted in this case and deposed that she prepared site plan Ex. PW15/B. She further deposed that on 19.07.2014, she produced the victim before the Ld. MM and moved an application for getting her statement u/s 164 CrPC recorded, which is Ex. PW15/C. She further deposed that on 23.07.2014, the potency test of the accused was conducted at BJRM Hospital and she collected the report Mark PW 15/D. She further deposed that she collected the requisite samples of the victim as well as accused and sent the same to FSL for expert opinion, and later obtained the FSL result and filed the same in the court as Ex. F1.
In her crossexamination by Ld. Amicus Curiae for accused, she admitted that she did not obtain the birth certificate of the victim issued by MCD. She further deposed that she did not collect the CDR of the mobile phone of the accused, but denied that she deliberately did not collect the same as the same would have been indicative of telephonic conversations between the accused and the victim. She admitted that she did not come across any eye witness of the incident of kidnapping.
Judgment : FIR No. 748/14 page 10 of 36
SC No.57610/16 State Vs. Neeraj
MATERIAL WITNESSES
19. The prosecution, to substantiate its case, examined the victim A @ K as PW 1. After conducting preliminary examination of the victim by putting certain questions to her to assess the competency of victim child to give rational answers, on being satisfied, the statement of the victim was recorded, wherein she deposed as under :
" We are two sisters. I am younger one. I have studied upto class 9th. Accused Neeraj used to live in backside gali. At this stage, the accused pointed towards the accused present in the Court today, correctly identified. Accused used to say that he want to marry me to look after his daughter. I refused and I told me that my mother is widow and as such I do not want any relationship. I was fond of playing with daughter of the accused. Accused had established physical relations with me several times but I do not remember the date. Thereafter, he came to my residence and he asked my mother to marry with him for keeping of his children. My mother refused. I do not remember the month and year specifically but the date was 18th. Accused came to my residence at about 12 midnight in drunken condition. He asked me to accompany him, my mother objected. I also refused but he threatened to kill my mother. He enticed me and took me on bike of his friend to the house of his friend. At that time the said friend was with us. I do not know the name Judgment : FIR No. 748/14 page 11 of 36 SC No.57610/16 State Vs. Neeraj of said friend of accused but he sometimes meets me and even extends threats. I do not remember the address of that house. There was no one inside that house. There he forcibly raped me. In the morning I returned to my house. My mother called plice. The police came and took me to the Police Post where my statement Ex. PW1/A was recorded, which is bearing my signatures at point A. Thereafter, I was got medically examined. My statement was also recorded by Ld. MM, at this stage a sealed envelope with the seal of is opened. Witness has been shown the statement. She identifies her signatures at point A and is Ex. PW1/B. The accused was arrested by the police.
At this stage, Ld. Addl. PP seeks permissiion of the Court to put leading questions to the witness.
Heard. Allowed.
It is correct that the accused used to entice me with his false promises and sweet talks and he took me to his house by making the aforesaid assertions. I cannot say whether it was 17/07/2014 when the accused call me and had took me to the room of his friend. It is correct that the room of friend of the accused was located at Mukundpur. It is correct that the complaint was made to police on 18.07.2014."
20. In her crossexamination by the Ld. Counsel for the accused, the Judgment : FIR No. 748/14 page 12 of 36 SC No.57610/16 State Vs. Neeraj victim / PW 1 deposed as under :
"I was knowing the accused 34 days prior to the incident. However, I was acquainted with the daughter of the accused who is a small girl. I used to notice the daughter of the accused playing in the gali and thereafter the accused approached me and proposed me for friendship. The accused is residing at a distance of one street from my house. Accused used to call me to his house and I used to go there. On the date of incident I did not go to my school. At that time I was studying in 9 th class. It is wrong to suggest that on the date of incident I attended my school. On the date of incident I did not meet the daughter of accused. On the date of incident, accused alone came to my house in drunken condition at 12 midnight. His friend was standing outside on a motorcycle. He had called me and I went alongwith his friend to the house of his friend to meet Neeraj voluntarily.
Next day, the aforesaid friend of accused left me at my house on his motorcycle. Again said Neeraj was also with us. My brother did not beat me. It is wrong to suggest that the present case was registered at the instance of my mother. It is wrong to suggest that accused was falsely implicated in this case. I did not say to the police that I was in love with the accused. I did not state to the police that my mother caught me when I was meeting with Judgment : FIR No. 748/14 page 13 of 36 SC No.57610/16 State Vs. Neeraj accused Neeraj and she gave beatings to me. I stated to the police that accused is used to enticed me and used to do sweet talks to me. I also used to meet him. It is correct that police took me for medical examination. I am residing in a thickly populated colony. We are residing at the ground floor. When the accused was taking me from my house, my mother was sleeping. We had bolted the room from inside before going to sleep. The accused when came to our house, opened the latch by inserting his hand through a hole. My mother was sleeping after taking her medicine and when the accused came I tried to woke up her but she kept sleeping. My elder sister M was also there. Again said at that time only my mother and I was present in my house as my sister had gone to my maussi house. My maussi house is at five minute distance from my house. My mother came to know that I was not present in the house at about 12 O'clock. I did not try to raise any alarm when the accused was taking me. We reached at the house of the friend of accused within 10 minutes. The mother of the friend of the accused was present in that house but she was sleeping. There are five rooms in that house. Out of which three rooms have been let out. One of those room are occupied by the mother of the friend of accused and the other room was occupied by him. All the tenants were sleeping at the time when we reached there. I remained Judgment : FIR No. 748/14 page 14 of 36 SC No.57610/16 State Vs. Neeraj there for the whole night and in the morning at about 56 AM the accused and his friend took me back to my house. At that time, it was still dark. None from the neighbors noticed us. I even tried to raise alarm when I was taken by the accused and his friend but nobody listened. I had gone to that place of the friend of the accused only once that to the night of incident. The friend of the accused informed me that three rooms were occupied by his tenants. The said person also tried to assault me sexually but could not succeed. I refused to establish any relationship with him. Since I was enticed by the accused with his sweet talks, I agreed to have physical relationship with him.
I know that the wife of accused has already got expired. It is correct that I had never met the mother of the daughter of the accused. I came to know from the locality that the wife of accused is not alive. It is wrong to suggest that after knowing this fact, I intended to marry the accused or that for this reason the present case has been registered.
I do not remember my date of birth. I even do not remember the year of my birth. I was not major at the time of the alleged incident. It is wrong to suggest that I gained majority much prior to the date of alleged incident. It is wrong to suggest that the accused never established physical relationship with me or that in order to compel him to marry me I have deposed falsely. It is wrong to Judgment : FIR No. 748/14 page 15 of 36 SC No.57610/16 State Vs. Neeraj suggest that I was in love with the accused that is why I used to meet him. It is wrong to suggest that accused alongwith his friend did not take me to the house of friend of accused or that I have deposed falsely in this regard."
21. The mother of the victim entered the witness box as PW 2 and deposed that the victim A @ K is her daughter and is aged about 15 years. She came to know that the accused Neeraj, who was residing in the gali situated at the backside of their house, was trying to entice her daughter, and she tried to make him understand that her daughter was still minor and he was much older than her and as such he should have no concern with her daughter. She even tried to make her daughter understand but she denied her relationship with the accused. She further deposed that on 17.07.2014, the accused came to their house and took the victim with him. PW 8 / mother of the victim immediately went to the house of the accused but he was not there, and thereafter she went to PS and lodged the report. On the next day, her daughter came back and she was taken to BJRM Hospital for her medical examination. Accused was arrested by the police on her instance, vide arrest memo Ex. PW 8/A and his personal search was conducted vide personal search memo Ex. PW 8/B. She further deposed that her daughter had disclosed her that accused had established physical relations with her.
22. In her crossexamination by the Ld. Amicus Curiae for the accused, PW 8 deposed that prosecutrix was born on 01.04.2000 and she had got registered the birth of her daughter with MCD and brought on Judgment : FIR No. 748/14 page 16 of 36 SC No.57610/16 State Vs. Neeraj record the Aadhar card of the prosecutrix as Ex. PW8/D1. She admitted that her daughter used to roam around freely with the accused, but volunteered that accused was much older than the prosecutrix and as such he had enticed her daughter into relationship.
23. After close of PE, the statement of the accused was recorded u/s 313 CrPC wherein he denied the prosecution case in its entirety, and pleaded his innocence. He further stated that he wanted to marry with the victim and when this fact came in the knowledge of the victim's mother, she got him falsely implicated in this case.
24. I have heard Sh. Sanjay Jindal and subsequently Ms. Neeta Gupta, Ld. Addl. PPs for the State and Sh. Arun Sherawat, Ld. Amicus Curiae for the accused. Ld. Addl. P.P. for the State has vehemently argued that the victim has duly supported the prosecution case, in her testimony given in the court. Her allegations that she was enticed by the accused with his sweet talks and then subjected her to sexual assault, are clear, cogent and trustworthy. Medical and forensic evidence brought forth are supportive of the prosecution case, in as much as the DNA analysis conducted over the exhibits of the victim and the blood samples of the accused, were matching, which is corroborative of penetrative sexual assault having been committed upon the victim. The age of the victim being 14 years and 3 months, at the time of incident, is not disputed and therefore she was a child within section 2 (d) of the POCSO Act, and therefore the accused is liable to be convicted for the offences, he has been charged with.
Judgment : FIR No. 748/14 page 17 of 36 SC No.57610/16 State Vs. Neeraj
25. Per Contra, Sh. Arun Sherawat, Ld. Amicus Curiae for the accused has argued that there is no material on record to show that the accused had made any overt act in either enticing or taking away the victim out of the lawful guardianship of her parents. It is stated that the victim was in love with the accused and she had been having physical relations with the accused voluntarily and consensually, even prior to the alleged incident of sexual assault / rape on intervening night of 17 18.07.2014. It is contended that the victim had attained the age of discretion and had voluntarily accompanied the accused and they had physical relations in the night of 1718.07.2014 with their free will. It is prayed that there was neither any enticement of the victim at any point of time nor any forcible act on the part of the accused, and that consensual physical relations between the parties do not fall within the ambit of penetrative sexual assault / rape, and therefore acquittal of accused is prayed for.
26. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law.
Age of the victim
27. To ascertain the age of the victim, the prosecution has examined PW 7 Sh. Prem Singh, Incharge, Primary School, Malikpur, Delhi, who brought on record the school record of the victim, as per which, at the time of her admission in the first class on 11.04.2005, the date of birth of the victim was mentioned as 01.04.2000. On the basis of the record, a Judgment : FIR No. 748/14 page 18 of 36 SC No.57610/16 State Vs. Neeraj certificate was also issued by the Principal of the said school Ex. PW 7/C to the effect that the date of birth of the child / victim was 01.04.2000. The said date of birth of the victim has not been disputed by the accused, as none of the assertions made by the said witness were controverted.
28. However, during the course of trial and examination of PW 8 Mrs. K, mother of the victim, the suggestions were given to the said witness that at the time of the incident, the victim had attained the age of majority, which was denied by the witness, but rather she even testified that she had got registered the birth of her daughter with MCD and a copy of the certificate issued by the MCD, is also present on record having been filed by the prosecution but the same was not put forth or proved as per law, but nevertheless since this factum of registration of birth of the victim with MCD has not been controverted during the crossexamination of PW 8, the same may also be looked into, which may be referred to as Mark X1, wherein the date of birth of the victim is mentioned as 01.04.2000. No doubt, the said witness also brought on record the Aadhar Card of the victim as Ex. PW 8/D1, wherein the year of birth of the victim is mentioned as 1999, but school record of the victim being the conclusive proof and the same not having been controverted by the accused, the school record would have precedence over the other documents. The date of birth of the victim is, therefore, accepted to be 01.04.2000, and as such on the date of incident, she was aged about 14 years and 3 months, and hence she is a "Child" within the meaning given under section 2 (d) of the POCSO Act.
Judgment : FIR No. 748/14 page 19 of 36 SC No.57610/16 State Vs. Neeraj OFFENCE U/S 363 IPC.
29. The primary ingredient, which the prosecution is required to prove in order to bring home the guilt of accused u/s 363 IPC is that the victim / child was enticed / taken away by the accused out of the lawful guardianship of her parents without their consent. Two material witnesses examined by the prosecution in the instant case were the victim herself (PW1) and her mother (PW8). From the time, when her statement was recorded and case was registered, to the victim being medically examined in the hospital, coming in contact with the doctor to give history of the case and thereafter her statement u/s 164 Cr.P.C. recorded by the Ld. MM and finally her testimony in the court as PW 1, saw different versions of the victim, in a wavering manner coming to the fore, reflecting the perturbed state of mind of the victim. In her complaint Ex. PW 1/A, the victim has asserted that the accused used to meet her and had told her that he loved her and wanted to marry her, and she refused initially, but thereafter with his sweet talks he tried to entangle the victim in his 'love' for the victim, due to which she succumbed to his talks and accompanied him to his house, where she had physical relations with him for 56 times. However, in the complaint also, the victim has used the words "Zabardasti Sharirik Sambandh Banaye" which is indicative of a forcible act on the part of the accused and lack of consent / willingness on the part of the victim. As regards, the date of incident i.e. intervening night of 1718.07.2014 is concerned, the victim has stated that on the call of the accused, she had gone out of the house and had accompanied him to the house of his friend, where accused had physical relations with her Judgment : FIR No. 748/14 page 20 of 36 SC No.57610/16 State Vs. Neeraj and she also disclosed that 34 days prior to that date, the accused had sought permission of her mother to marry the victim, but the mother of the victim had refused. The victim, despite being asked by her mother not to meet the accused, continued to do so, on the sly. In her statement u/s 164 Cr.P.C. of the victim, which was recorded by the Ld. MM on 19.07.2014 and is Ex. PW1/B, the victim has again stated that the accused loved her and she also loved him, accused wanted to marry him and on 17.07.2014, the accused had taken her to the house of his friend, where with the consent of both of them, they had physical relations and she did not want any legal action against the accused. At the time of her medical examination, which was conducted in BJRM Hospital, while narrating the history to the doctor, the only history mentioned is that the victim had been missing after 12 midnight on 17.07.2014 and she had returned at 6.00 AM, and she had been brought by the police and her mother and the victim had not given any history of physical or sexual assault. Finally in her testimony as PW1, the victim has testified that accused wanted to marry her to lookafter his daughter and that she had refused, and that accused had established physical relations with her, though she did not remember the date. She has also deposed about the accused coming to her residence and asking her mother for their marriage, but her mother had refused and finally on the night of incident, the accused came to her residence at 12 midnight and asked her to accompany him, he enticed her and took her away on the bike of his friend to the house of his friend, where he forcibly raped her. She had refused to accompany him but the accused threatened to kill the victim's mother. She also stated that the accused used to entice her with false promises and sweet talks and he used to take him to his house by Judgment : FIR No. 748/14 page 21 of 36 SC No.57610/16 State Vs. Neeraj making aforesaid assertions. In her crossexamination, she admitted that accused had called her and she went alongwith him to the house of his friend. She further added that when the accused was taking her away from her house, her mother was sleeping. They had bolted the door from inside and the accused had come to the house by opening the latch by inserting his hand through a hole. She admitted that she did not raise an alarm when the accused was taking her away with him. She remained at the house of the friend of the accused the whole night, where the accused had physical relations with her and in the morning at about 56 AM, the accused and his friend took her back to her house, and it was still dark at that time and none of the neighbours noticed them. She also stated that she had tried to raise an alarm when she was being taken away by the accused and his friend, but nobody noticed them. She had agreed to have physical relations with him but denied that she was in love with him, due to which she used to meet him.
30. From a cumulative scrutiny of the different versions of the victim, what crystallizes is that the date of incident was not a solitary incident of the accused and the victim having physical relations with each other. Possibly on earlier occasions, the matter did not come to be reported to the police, because the mother of the victim did not notice anything amiss or her daughter being missing from her house or her other regular pursuits not having come into the notice of the mother of the victim. It is also clear that the accused had a liking for the victim and also had an intention to marry her, may be with the ulterior motive that victim would lookafter his child, his wife already having expired, as admitted by the victim in her crossexamination, but the mother of the victim was not in Judgment : FIR No. 748/14 page 22 of 36 SC No.57610/16 State Vs. Neeraj favour of the said relationship.
31. On the fateful night of 1718.07.2014, the victim accompanied the accused quite willingly, which is writ large in the testimony of the victim. Had there been any other case of any force having been used by the accused or she having been intimidated by extending any kind of threat, she could easily have shouted and made a noise, disturbing the slumber of her mother, who was sleeping inside the room itself, and the neighbours, who would have been in abundance, may be even in the Gali, it being the hot month of July, 2014. The version of the victim is also unbelievable that the accused opened the latch of the door, which was bolted from inside, by inserting his hand inside the door, as it is impossible to do so, without making a noise.
32. There is no other explanation but that the victim herself opened the bolted door from inside, and sneaked out with the accused to the house of his friend, where they had physical relations. She did not raise any alarm during this entire journey and therefore any force having been used, to justify her testimony that "Zabardasti Mujhe Le Gya" is conspicuously missing. Even when she was medically examined, she did not complain of any sexual assault upon her, nor did her medical examination have any telltale signs of any forceful sexual assault having been committed upon her by the accused.
33. The word "entice" has very casually been used by the victim in her complaint as well as in her testimony in the court, but how was she enticed by the accused, has not been explained by her nor could it be Judgment : FIR No. 748/14 page 23 of 36 SC No.57610/16 State Vs. Neeraj established by the prosecution. Enticement, as per its dictionary meaning, means "provoking someone to do something through (often false or exaggerated) promises or persuasions", which means alluring a person to do something by making false promises.
34. In the case in hand, there was nothing hidden from the victim or her mother about the accused and his life. The accused, though previously married, did not have a surviving wife and was interested in marrying the victim but her mother was against the said relationship, probably due to age difference. In her crossexamination, the mother of the victim has admitted that the victim used to freely roam with the accused. It was not as if, any false promise of marriage has been made, due to which the victim had accompanied, having been so "enticed" but rather he was wanting to marry her and "NO" was coming from the side of the victim's mother, resulting in the love affair and physical relations being made sneakily.
35. As already discussed above, the victim accompanied the accused willingly, with her consent, without any force being used upon her, and therefore only use of word 'enticement' in the testimony of the victim, does not inspire any confidence. In this regard, it would be relevant to refer to the landmark judgment Varadarajan Vs. State of Madras, AIR 1965 SC 942, wherein while distinguishing between "taking" and "allowing a minor to accompany a person", it has been laid down by the Hon'ble Supreme Court of India as under :
Judgment : FIR No. 748/14 page 24 of 36
SC No.57610/16 State Vs. Neeraj
"xxx
There is a distinction between "taking" and
allowing a minor to accompany a person. The two
expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purpose of S. 361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian. xxx:
36. In the case in hand also, since on the fateful night the victim has left the house willingly with the accused, without their being any enticement or any other overt act on the part of the accused, the offence of kidnapping of the victim is not made out, and therefore the charge for the offence u/s 363 IPC against the accused Neeraj, is not brought home by the prosecution.
OFFENCE U/s 6 POCSO Act & U/s 376 (2) (i) & (n) IPC
37. The accused has been charged for the offence as defined in section 5 (l) POCSO Act & punishable u/s 6 POCSO Act and for the offence punishable u/s 376 (2) (i) & (n) IPC, and for ready reference, both the said sections are being reproduced herein below :
Section 5 (l) POCSO Act Whoever commits penetrative Judgment : FIR No. 748/14 page 25 of 36 SC No.57610/16 State Vs. Neeraj sexual assault on the child more than once or repeatedly.
Section 376. Punishment for rape. (1) Whoever, except in the cases provided for in subsection (2) commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.
(2) whoever xxxx
(i) commits rape on a woman when she is under sixteen years of age or xxx
(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine."
38. It has categorically come on record that the accused and the victim had physical relations with each other for 56 times prior to the night of the incident reported to the police i.e. intervening night of 17 18.07.2014. Admittedly by the victim, they had physical relations on the said night also. The FSL result Ex. F1 also confirms that the accused and the victim had physical relations and the conclusion of the FSL result Judgment : FIR No. 748/14 page 26 of 36 SC No.57610/16 State Vs. Neeraj Ex. F1 reads as under :
"The DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that DNA Profile generated from the exhibit "1a" (underwear of victim) and exhibit "5" (bedsheet) vide FSL No. 2014/DNA5587 is similar with the DNA Profile from the source of exhibit "2" (blood sample of accused Neeraj)".
39. In my discussion above, it has already been held above that the victim had accompanied the accused willingly and had physical relations with him, with her free consent. The said physical relations / sexual intercourse, either on the date of incident reported to the police or even prior to that, were neither without the consent of the victim nor was there anything forceful about it (Zabardasti), as stated by the victim in her testimony time and again, but having denied the same in her statement u/s 164 Cr.P.C., wherein she has admitted that she was in love with the accused and did not want any legal action against him, and that she had willingly agreed to have sexual relations with him.
40. Therefore, the question which glares at the court for consideration, is that when the physical relations are established by a girl with a boy out of her own sweet will, can the boy be hauled up for having committed "penetrative sexual assault / rape" upon the alleged victim. Ld. Amicus Curiae for the accused in his submissions made before the court used the term "age of discretion having been attained by the victim, and Judgment : FIR No. 748/14 page 27 of 36 SC No.57610/16 State Vs. Neeraj therefore she knew exactly what she was doing, she knew the repercussions which could follow and she had indulged in such sexual intercourse with the accused not once but repeatedly without making any complaint ever to her mother, sisters, relatives or any authorities and even the present case only came to be registered against the accused because her mother noticed her daughter missing from her room during night." The "age of discretion" has not been defined anywhere either in the general law of IPC or in the POCSO Act, rather the sexual intercourse on a child i.e. a person below the age of 18 years amounts to penetrative sexual assault and thus punishable u/s 4 or 6 POCSO Act depending upon the magnitude and gravity of the offence. Similarly in section 375 IPC under the sixth head the words "with or without her consent, when she is under eighteen years of age" have been used. Rather the more aggravated form of rape entailed in section 376 (2) (i) IPC and calls for a graver punishment, if the said sexual intercourse / rape is committed upon a girl below 16 years of age. Therefore, from the plain reading of the said sections, the 'age of discretion' is definitely 18 years and not below it, and rather when the child is below 16 years of age, even the general law i.e. IPC entails a harsher punishment for the accused.
41. However, it cannot be ignored that in the exuberance of youth and love and with the advent of media, telephone, internet, Sex being the culmination of love between a boy and a girl, has become rampant in today's time, where girls and boys are often found indulging in such bodily pleasure, willingly before attaining the permissible age of discretion as per law, decide to have physical relations, promising to marry each other later and even when there is no promise or even possibility of Judgment : FIR No. 748/14 page 28 of 36 SC No.57610/16 State Vs. Neeraj marriage between them. The offence of penetrative sexual assault / rape as described in section 6 POCSO Act and 376 IPC entails a very harsh punishment of minimum 10 years imprisonment and therefore the court has to be very cautious and vigilant while considering the element of "consent" of the victim in such sexual acts, which were allegedly or admittedly committed. The Hon'ble High Court in Kuldeep Tyagi Vs. State NCT of Delhi, 2013 (135) DRJ 613, while faced with a similar question of the victim being below 18 years of age, having accompanied the accused with his friends to different places and having physical relations with the accused with her consent, has held as under :
"Penal Code, 1860 Section 376 - Rape - Consent - On the verge of attaining majority - Sufficient intelligence to understand the significance and moral quality of the act she was consenting to - Friendship with the accused and had no grievance aginst his conduct and behavior at any time - She accompanied the accused with his friends to different places at Shimla, Nanital and Mussoorie - She never informed her parnts and kept it a secret - She had physical relations with the accused at different places with her consent without any resistance - She never lodged any complaint against the accused for cheating her, never insisted the accused to marry her and never informed her parents about her friendship with the accused and his promise to marry - Case of volunary consent -
Judgment : FIR No. 748/14 page 29 of 36
SC No.57610/16 State Vs. Neeraj
Conviction set aside - Appeal allowed.
42. Again having a similar question, the Hon'ble High Court in case Vijay Kumar Vs. State of NCT of Delhi, CRL.A. 325/2013 decided on 14.08.2015, has held that when the victim accompanied the accused willingly, did not raise any alarm, consensually had sexual intercourse with him, lived in his native place for 89 days, had accompanied the accused with her consent, the accused was acquitted of the charge of the offence of rape.
43. However, one thing which needs to be kept in mind is that in the first case the Hon'ble High Court has observed that the age of the girl / victim was 17 ½ years, just on the verge of attaining the majority, while in the second judgment the victim was 16 years of age. In both the said cases, the Hon'ble High Court has opined that the victim had attained the age of discretion and she knew what she was exactly doing and she entered into sexual intercourse with the accused willingly with her consent and therefore the charges of rape against the accused persons were not brought home.
44. Having gone through both the said judgments, the question before this court which still stares unanswered, is as to whether in the case in hand also, the victim, who was aged about 14 years and 3 months, had attained the age of discretion. I am constrained to observe that the answer is in the negative. With the statutory law of IPC and POCSO Act making consensual sexual intercourse with a girl below the age of 14 Judgment : FIR No. 748/14 page 30 of 36 SC No.57610/16 State Vs. Neeraj years and judicial pronouncements aforecited of our own Hon'ble High Court, observing that the victims / girls, who were aged 17 ½ years and 16 years respectively in the said cases, are on two different platforms with their different explanations, but the age of discretion not being a consistent one, needs to be deciphered and tackled with, in every case, keeping in view the peculiar facts of different cases in mind.
45. In the case in hand, the victim was just rising in her teens and had just attained the age of 14 years. Though the specific dates when the victim had physical relations with the accused prior to the date of incident reported to the police in July, 2014, have not been mentioned but quite possibly, it was when she was not even 14 years of age. The accused and his overtures of friendship, love and proposed marriage, came soon after the victim attained the age of puberty and her awareness towards the opposite sex was on the rise. A man showing interest in her, wooing her, 'which is the inference which one takes from the assertion of the victim, that he used to entice her with his sweet talks' made her to accompany the accused as per his asking and also indulging in bodily pleasure by having sexual intercourse with him. However, as regards the marriage is concerned, the final decision was to be taken by the mother of the victim, and that decision had been acceptable to the victim, which is clearly indicative that she was yet not in that frame of mind to take such an important decision of her life. Her love for the accused was not so intense that she had eloped and married with him, but it was only the sweet talks of the accused that she was indulging herself in physical relations with the accused.
Judgment : FIR No. 748/14 page 31 of 36 SC No.57610/16 State Vs. Neeraj
46. PW 8 / mother of the victim has categorically deposed in her crossexamination that she had warned the accused to leave her daughter alone as she was a minor and there was huge difference of age between them, but obviously the accused did not pay any heed. The victim girl was at an impressionable age of 14 years, who neither knew the implications of her acts nor the repercussions, which could follow. It was as if, she was on an adventure streak with the accused, having fun time with him, oblivious to the consequences. Had it not been so, the version of the victim would have been all along the consistent one and not wavering, which came to the fore in the form of her examination in chief and crossexamination, where she swings both ways.
47. However, the accused was a man of the world, aged about 26 years, once married and having a daughter, and he was wooing a girl, who was more than 10 years younger to him in age. It is an admitted case that the victim used to play with the daughter of the accused, during the course of which, accused had come into contact with the victim, resulting in the events that followed. The accused was a mature man, who knew that he was wooing and having sexual relations with a child, who was a friend of his own daughter. The accused wanted a caretaker for his daughter and has no love involved for the victim, rather it was his own bodily pleasure, which he was satisfying by wooing the victim, who was 10 years younger to him, and who did not know what was good or bad for her, and despite having been cautioned and warned by the victim's mother to keep away from her daughter, he continued to have physical relations with the victim. The victim had not attained the age of discretion, being a child as per law and even a child as per her activities Judgment : FIR No. 748/14 page 32 of 36 SC No.57610/16 State Vs. Neeraj as she used to play with the daughter of the accused, but having attained Puberty and realizing that her own body coupled with the body of the accused could give her pleasure, she went along with him on the dangerous sexual persuits.
48. I am of the opinion that the victim had not attained the age of discretion and her consent for having sexual relations with the accused was without knowing the implications and the consequences thereof. However, the intention of the accused is quite evident that he was having a good time with the victim, who was following him around readily. Further more, it needs to be observed that though the details of previous sequence of physical relations having been established between the victim and the accused did not come to the fore with specific dates, time, place and duration and the manner how the sexual relations came to be established, but on the date of incident, it was not as if the accused and the victim had been out on a 'date'' or had gone roaming to some place and that in the heat of moment, such sexual relations came to be established. Rather on the date of incident, at midnight, the accused went sneakily to the house of the victim, in a drunken condition, took the victim alongwith him to his friend's house for only one purpose i.e. to satisfy his lust and to have physical relations with the victim, the element of love and finer emotions being conspicuously missing. Therefore, I am of the opinion that the consent of the victim, in the case in hand, does not fall within the term 'consent' given by a girl having reached the 'age of discretion', but in the instant case the consent was given by a girl who knew nothing about what was good or bad for her and was rather being used by the accused for satisfying his own physical needs.
Judgment : FIR No. 748/14 page 33 of 36 SC No.57610/16 State Vs. Neeraj
49. There is no denial of the accused having had physical relations with the victim, which already mentioned above, finds due corroboration from the forensic and medical evidence, which came to the fore in the form of the FSL result, which is not denied. The victim was aged about 14 years and 3 months on the date of commission of offence, and therefore she was a child within the meaning of section 2 (d) of the POCSO Act and below 16 years as entailed in section 376 (2)(i) IPC. Therefore the accused is found liable of having committed penetrative sexual assault upon the victim, as defined in section 3 and 5 POCSO Act. It is also not denied that the physical relations had been entered into by the accused with the victim even 56 times prior to the date of incident reported to the police, and as such the offence was committed in its aggravated form and is covered u/s 5 (l) POCSO Act and u/s 376 (2) (i) &
(n) IPC.
DEFENCE OF THE ACCSUED.
50. In his statement u/s 313 Cr.P.C, the defence raised by the accused is that he wanted to marry the victim and when this fact came in the knowledge of the victim's mother, she got him falsely implicated in this case. However, this defence of the accused is not tenable as the victim was a minor and her legal guardian was not agreeable to the match and their relationship, due to which she had cautioned and warned the accused to stay away from her daughter, but the accused ignoring the warning given to him by the victim's mother, went ahead to have physical relations with the victim by wooing her with his sweet talks, despite Judgment : FIR No. 748/14 page 34 of 36 SC No.57610/16 State Vs. Neeraj knowing fully well that she was a minor, aged about 14 years, and having no knowledge as to what was good or bad for her. Therefore, this is a case of no defence at all.
51. In view of my discussions above, it emerges that ;
(i) on the day of incident, which was reported to the police, the victim was about 14 years 3 months of age;
(ii) the accused and the victim had physical relations on the fateful night i.e. intervening night of 1718.07.2014, and even 56 times prior to that.
(iii) the victim had not attained the age of discretion at the time of commission of offence / penetrative sexual assault / rape / establishing physical relations with her by the accused.
(iv) the witnesses are trustworthy and their testimony is reliable.
(v) and that accused has not been able to raise any defence.
52. Conclusion : In the light of my discussion above, the testimony of prosecution witnesses are found to be trustworthy and reliable, and the prosecution has succeeded in proving that the accused had committed Aggravated (repeated) Penetrative Sexual Assault / rape upon the victim, aged around 14 years 3 months on the date of incident reported to the police i.e. 1718.07.2014 and even less than 14 years when the physical relations were established between them prior to that date, and therefore the accused is liable to be convicted for an offence of aggravated penetrative sexual assault as described u/s 5 (l) of the POCSO Act, and punishable U/s 6 of POCSO Act and for the offence punishable u/s 376 (2) (i) & (n) IPC.
Judgment : FIR No. 748/14 page 35 of 36 SC No.57610/16 State Vs. Neeraj
53. Accordingly, the accused is convicted for the offences punishable U/s 6 of The Protection of Children from Sexual Offences Act, 2012 (POCSO Act), and u/s 376 (2)(i) &(n) IPC.
54. Matter be listed for arguments on the quantum of sentence on 14.12.2017.
Announced in the open court
today i.e. on 08.12.2017 (SEEMA MAINI)
ASJ01/SPECIAL JUDGE : POCSO Act :
North : Rohini/Delhi : 08.12.2017
Judgment : FIR No. 748/14 page 36 of 36