Delhi District Court
State vs Suresh S/O Chote Lal on 24 November, 2011
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL SESSIONS
JUDGE01, NORTH, DELHI.
FIR No.: 377/2007
PS: Sarai Rohilla
U/s: 363/366 IPC
S.C. No.: 71/2011
Case ID No. : 02401R0435932010
In the matter of:
State
Versus
Suresh S/o Chote Lal
R/o H. No. 293, Bagh Kare Khan,
Kishan Ganj, Delhi.
Date of receiving in Sessions Court : 13.09.2011
Arguments Heard : 23.11.2011
Date of Judgment : 24.11.2011
JUDGEMENT
Case Of Prosecution:
1. On 20.9.2007, complainant Sushila came to police station Sarai Rohilla and lodged a report regarding missing of her daughter aged about 17 years i.e. the prosecutrix (name withheld to keep her identity confidential) which was recorded vide DD no.29A. On 23.9.2007, complainant Sushila again came to the police station. She showed her suspicion upon accused and gave her statement that her daughter has been S.C. No.: 71/2011 1/6 taken away by accused Suresh after alluring her for the purpose of marrying her. On the basis of statement of complainant/mother of prosecutrix, present case was registered against the accused and during investigation, IO got flashed WT message to all SSP's/DCP as well as to all the SHOs/Delhi, obtained the date of birth certificate of prosecutrix from her school, arrested the accused, got the medical examination of both prosecutrix and accused done from concerned doctor, got recorded the statement of prosecutrix u/s 164 Cr. P.C. and after completion of investigation, filed charge sheet u/s 363/366 of IPC against the accused in the court.
2. Since the offence u/s 366 IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to the court of Sessions.
Charge Against The Accused:
3. Prima facie case u/s 363/366 of IPC was made out against the accused. Charge was framed against him to which he pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 7 witnesses in all.
5. The brief summary of the deposition of the prosecution witnesses is as under:
S.C. No.: 71/2011 2/6
Formal witnesses:
6. PW1 is Sh. T. L. Pahuja, Admission Incharge, Sarvodya Co ed Vidhyalaya, Senior Secondary School, Pratap Nagar, Delhi who has proved the record pertaining to date of birth of prosecutrix as Ex. PW1/A1 to Ex.PW1/C.
7. PW4 SI. Mohd. Faiyaz is the duty officer who registered the FIR and proved the same as PW4/A. Material witnesses:
8. PW2 is the prosecutrix (name withheld to keep her identity confidential ) who has not supported the case of the prosecution and has stated that she was 17 years of age at the time of incident and she herself went with the accused and married with him at her own free will. She further stated that they have a four year old son out of the wedlock and she is living happily with the accused.
9. PW3 is Smt. Sushila, mother of the prosecutrix on whose complaint present case was registered against the accused. She has proved her complaint given to the police as Ex. PW3/A and has further stated that accused had taken away her daughter for the purpose of marrying her.
10. PW5 is Inspector Rajesh Malhotra who on receipt of case file conducted the further investigation of the case and after his transfer handed over the case file to MHC (R).
11. PW6 SI Dinesh Prasad is the initial IO who conducted the investigation of the case and proved all the memos etc. S.C. No.: 71/2011 3/6
12. PW7 is ASI Ram Phal who prepared the challan and filed the same in the court.
13. Statement of accused U/s 313 Cr.P.C. was recorded wherein he denied the case of prosecution and stated that he is innocent and has been falsely implicated in the present case. He further stated that prosecutrix went with him at her own will and he did not take her away. Prosecutrix married him as per her own wishes and they have four years old son from the wedlock and they are living happily. He further stated that the parents of prosecutrix were against their marriage and therefore they gave statement against him. Accused further chose not to lead any evidence in defence.
14. I have heard Ld. defence counsel for the accused as well as Ld. APP for the State and have carefully perused the record. CONCLUSION:
15. In the present case, prosecutrix has been examined as PW2. She deposed that she was 17 years of age at the time when she left her home. She was not forcibly taken or induced by the accused and she went with the accused at her own free will. Though this witness in her statement u/s 164 Cr.P.C. as well as in the court has stated that she went with the accused as per her own free will and without any pressure or inducement from the accused but the fact cannot be ignored by the court that the witness herself has stated that she was around 17 years of age at the time of incident.
S.C. No.: 71/2011 4/6
16. PW1 is Sh. T.L. Pahuja, Admission Incharge from Sarvodya CoEd Vidhyalya, Pratap Nagar where the prosecutrix studied. He has stated that the date of birth of prosecutrix as per their school record is 23.6.1991. He has further stated that the date of birth of prosecutrix was mentioned on the basis of school leaving certificate issued by MCD Nagar Nigam Prathmika Vidhyalya and he does not know on what basis the date of birth of prosecutrix was mentioned in the primary school. But the prosecutrix herself has stated her age as 17 years and PW3 who is the mother of prosecutrix has also stated that prosecutrix was around 17 years of age when she left the house without informing them. PW3 has further stated that she alongwith the other relatives searched her daughter and thereafter lodged the missing report of her daughter and showed her suspicion upon accused. This witness has also stated that prosecutrix went with the accused with her own free will .
17. In the present case no doubt the prosecutrix went with the accused with her own free will but the fact that she was only 17 years of age at that time and was minor as per the provisions of section 363/366 of IPC cannot be overlooked by the court. As per the well established principle of law, consent of minor is no consent in the eyes of law. Though both PW2 and PW3 have stated that the prosecutrix went with the accused as per her own free will but keeping in view the fact that she was just 17 years of age at the time of incident and was not mature enough to give her consent, the only presumption that can be drawn against the S.C. No.: 71/2011 5/6 accused is that he took the prosecutrix forcibly in order to compel her for marrying with him.
18. The other witnesses examined by the prosecution are the police officials who joined the investigation of this case alongwith the IO and nothing material has come out of the cross examination of these witnesses.
19. Since the fact that the prosecutrix was minor and was 17 years of age at the time of incident has been proved on record by the prosecution beyond reasonable doubt, it can be said that prosecution has been fully able to prove its case against the accused beyond reasonable doubt. As such, accused is held guilty and convicted for the offence u/s 363/366 of IPC.
(MADHU JAIN) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi.
Announced in the open court today i.e. on 24.11.2011. S.C. No.: 71/2011 6/6