Delhi District Court
State vs Manoj Kumar S/O. Sh. Pappu F Auji, on 7 January, 2011
IN THE COURT OF SANJAY GARG: ADDIT IONAL SESSIONS JUDGE;
(EAST) FTC : KARKADOOMA COURT : DELHI.
SC No. 96/10
FIR No. 95/10
PS New Ashok Nagar
U/s. 363/366 IPC
Instituted on 9.7.10
Argued on 6.1.11
Decided on 7.1.11
State Versus Manoj Kumar S/o. Sh. Pappu F auji,
R/o. Vill- Jalalpur, PS- Delhi Gate,
Distt. - Aligarh, UP.
JUDGMENT
1. Briefly stated the case of the prosecution is that PW1 Sh.
Krishan Murari went to PS New Ashok Nagar on 9.3.10 and made a complaint mentioning that prosecutrix, aged 15 years, daughter of his co-brother Munesh had come to his house on 4.3.10. On 6.3.10 prosecutrix left his house at 8 a.m for purchasing medicine but did not return back. He has apprehension that someone has taken her niece after giving her inducement. On this complaint PW11 SI Narender Kumar prepared rukka and got the FIR No. 95/10 registered u/s. 363 IPC.
FIR No. 95/10 page 1 of Page 11
2. On 15/16.3.10 PW8 SI Savai Lal got the information that the prosecutrix with a boy is present in the house of the boy at Jalalpur, Aligarh. On 23.3.10 alongwith other police officials he reached PS Delhi Gate and gave information there. Thereafter he went to the house of accused Manoj, from there accused Manoj was apprehended and prosecutrix was recovered. PW8 recorded statement of the prosecutrix. During investigation prosecutrix was produced before Ld. M.M and her statement u/s. 164 Cr. PC was got recorded. After investigation police filed chargesheet against accused u/s. 363/366 IPC.
3. Charge u/s. 363/366 IPC was given to accused, to which he pleaded not guilty and claimed trial.
4. To prove its case prosecution has examined 13 witnesses.
PW1 Sh. Krishan Murari is the complainant, he proved his complaint Ex.PW1/A. PW2 Sh. Munesh Kumar is the father of the prosecutrix. PW3 is the prosecutrix and she proved her statement Ex.PW3/A made before the Magistrate. PW4 Sh. Rai Singh, Clerk, Tikaram Kanya Inter College, Aligarh, he proved the authority letter Ex.PW4/A given to her by Principal, certified copies Ex.PW4/B to PW4/E of the application for admission, transfer certificate, school leaving certificate and mark- sheet submitted by prosecutrix with the school. He also proved certificate Ex.PW4/F issued by Principal Smt. Bina Maheshwari of the FIR No. 95/10 page 2 of Page 11 School. PW5 Dr. Vinay Kumar Singh, Specialist Forensic Medicine, LBS Hospital proved ossification report Ex.PW5/A. PW6 HC Sanjay Kumar, duty officer proved FIR Ex.PW6/A and endorsement on rukka Ex.PW6/B. PW7 Lady Ct. Mona accompanied the police team on 23.3.10 to Aligarh, she proved recovery memo of prosecutrix Ex.PW7/A. PW8 SI Savai Lal is the IO, he proved arrest memo of accused Ex.PW8/A, seizure memo Ex.PW8/B of pulanda containing blood sample, semen sample, underwear and pubic hair of accused. PW9 SI Dinesh Kumar had brought the prosecutrix on 31.3.10 in the Court for getting her statement recorded u/s. 164 Cr. PC. PW10 HC Bijender did part investigation in this case and collected evidence regarding age proof of prosecutrix. PW11 SI Narender Kumar proved rukka Ex.PW11/A. PW12 Ct. Manoj Kumar on 23.3.10 took the accused to LBS Hospital on the directions of IO for his medical examination. He handed over the parcels given to him by the doctor to the IO. PW13 Dr. R.N. Dass, CMO, LBS Hospital proved MLC of the accused Ex.PW 13/A.
5. On the basis of the incriminating evidence appearing on record against the accused his statement u/s. 313 Cr. PC is recorded. Accused denied all the prosecution evidence which has come against him. He took the defence that for the last one year prosecutrix used to visit their house and propose him telling that she is in love with him.
FIR No. 95/10 page 3 of Page 11 Prosecutrix was major and she married with him at her own violation. After marriage she stayed in their house for 15 days. Since he is Yadav by caste and prosecutrix is baniya, due to this reason her family did not agree for marriage and under pressure of her family she made a wrong statement before this Court. He did not lead any defence evidence.
6. Heard arguments of Sh. Mohd. Iqrar, Ld. APP for the State and Sh. Abdul Sattar, Ld. Amicus Curiae for the accused. Perused the case file.
7. The Ld. APP submitted that prosecutrix was minor and she has specifically alleged while deposing as PW3 that she was kidnapped from Delhi by accused and was taken to Aligarh and there he married her against her wish. It is stated that prosecution has been able to prove the ingredients of the offence u/s. 363/366 IPC against the accused.
8. Sh. Abdul Sattar, Ld. Amicus Curiae for the accused submitted that statement of prosecutrix before this Court is not reliable as in her statement u/s. 164 Cr. PC she has given entirely different story and now under pressure from her family she is making a false statement. It is stated that before doctor and even before M.M. at the time of her statement u/s. 164 Cr. PC prosecutrix has given her age as 19 years and even in ossification test age of the prosecutrix is found to be FIR No. 95/10 page 4 of Page 11 around 17 years. In support of his contenti ons the Ld. Amicus Curiae has relied upon 1994 CRI. L.J. 3044 case titled Balasaheb Vs. State of Maharashtra and 2006(1) RCR (Criminal) 653, case titled Manish Singh Vs. State Govt. of NCT.
9. PW3 prosecutrix has stated that accused was known to her for the last two years. Since her birth she used to live in the house of her maternal grandfather at Aligarh and accused used to reside in her neighbourhood. When she used to go to school accused used to harass and tease her on the way. She told her father that someone is harassing her. On 4.3.10 his father alongwith his maternal grandfather and his maternal uncle brought her to Delhi at her aunt's (mausi's) house at New Ashok Nagar. On 6.3.10 she had gone to market at 7.30 a.m to buy medicine, accused met her on the way and asked her to accompany him and threatened her that in case she refused to go with him, he will get her sister kidnapped from school. Due to threat she accompanied accused, who took her to Aligarh to the house of his maternal aunt (mausi). For Saturday and Sunday she stayed in the house of accused's aunt. On Monday accused told her that they will do Court marriage and took her to local Courts at Aligarh. There a lawyer told that marriage cannot be done in one day. She accompanied accused to Court for 2-3 days and she was told by a lawyer that their marriage has been solemnized. Thereafter accused FIR No. 95/10 page 5 of Page 11 took her to her parents house. She wanted to contact her parents but there was no telephone in the house of the accused. On 21.3.10 when the police visited the house of accused and she met them, she was taken to local police station by Aligarh police and on 22nd/23 rd March she was brought to Delhi by Delhi police. She was medically examined in the hospital and was sent to Nirmal Chhaya /Nari Niketan. On 31.3.10 or 1.4.10 her statement was recorded by Ld. M.M. During the time she stayed wi th the accused he di d not touch her .
10. Accused was arrested and prosecutrix was recovered on 23.3.10 from the house of accused at Village Jalalpur, Aligarh. As per IO SI Savai Lal (PW8) accused was apprehended and prosecutrix was recovered from the house of the accused in Delhi. After medical examination of the prosecutrix, she was taken to Child Welfare Committee at Patpar Ganj and thereafter she was sent to Nari Niketan/Ni rmal Chhaya. During his cross-examination, IO has admi tted that prosecutrix had refused to go to Nari Niketan stating that she was married with accused and wants to l ive with him.
11. Ex.PW3/A is the statement of the prosecutrix recorded u/s. 164 Cr. PC by Sh. Lalit Kumar, Ld. M.M wher ein prosecutrix has stated that on 6.3.10 she went to Aligarh at her own as her family wants to marry her with an aged person. At Aligarh she met with accused to whom she knew for the last 2 ½ years and was in love. She put FIR No. 95/10 page 6 of Page 11 pressure upon the accused to marry her and they both married on 8.3.10 at Aligarh Courts and thereafter they went to the house of accused. Till 21.3.10 she remained with accused i n his house and they did not establish any physical relations. Prosecutrix has stated in her statement that since she is married with the accused she wants to live with the accused.
12. The MLC of the prosecutrix is other important document which needs to be looked into. Though prosecution has not proved it but since it's a record prepared by a Govt. servant in the routine discharge of his duties and has been filed on record by the prosecution, Judicial notice of it certainly can be taken. History on the MLC as told by prosecutrix is found mentioned by the doctor, wherein prosecutrix has given her age to be 19 years and has stated that she has married with her boy friend on 8.3.10 after friendship of 2 ½ years and staying with her husband and wi th her in-laws.
13. Ex.PW5/A is the report of the ossification test, as per which Board of Doctors headed by PW5 Dr. Vinay Kumar Singh, the age of the prosecutrix has been given as 16 to 17 years. To establish that prosecutrix is minor, prosecution has examined PW4 Sh. Rai Singh, Clerk, Tikaram Kanya Inter College, Aligarh. Ex.PW4/B to PW4/E are the copies of the application for admission, transfer certificate, school leaving certificate and mark-sheet submitted by prosecutrix at the time FIR No. 95/10 page 7 of Page 11 of taking admission in Tikaram Kanya Inter College, Aligarh. As per records of the school, the date of birth of the prosecutrix is 13.5.96. During cross-examination PW4 has stated that no date of birth certificate of prosecutrix as per record was filed at the time of her admission in their school. In the absence of any date of bi rth certificate issued by appropriate Govt. Authority, the date of birth of prosecutrix mentioned in the records of Tikaram Kanya Inter College, Aligarh cannot be taken as concl usive proof regarding her age.
14. At the time of the MLC and recording of her statement u/s. 164 Cr. PC, prosecutrix has given her age to be 19 years. But while deposing before this Court as PW3 she has given her age to be 14 years. In view of the contradictions in the age of the prosecutrix, as discussed above, the age of the prosecutrix cannot be taken as 14 years. After relying upon ossification report Ex.PW5/A, age of the prosecutrix is taken as 16 to 17 years.
15. The relevant thing which needs to be seen is whether prosecutrix left her house on 6.3.10 at her own or she was forcibly taken by the accused with him to Aligarh, after giving threats, as is the prosecution case and as has been stated by her while deposing as PW3. As per prosecution case prosecutrix had left her house on 6.3.10 and was recovered on 23.3.10 from Village Jalalpur, Aligarh from the house of the accused. During this time as stated by prosecutrix she FIR No. 95/10 page 8 of Page 11 was taken by the accused to Village Jalalpur, Aligarh, there she was kept by the accused in his maternal aunt's house, they also visited the Court 2-3 times and got married and thereafter she resided in the house of parents of the accused. Strangely, if prosecutrix was forcibly taken away by the accused from the custody of her parents, during all this duration she did not try either to run away or to contact her parents or to lodge any complaint or contact any public persons complaining about her kidnapping. As already discussed, entirely different statement was made by the prosecutrix under section 164 Cr. PC and to the doctor she had given exactly similar story as disclosed by her in her statement u/s. 164 Cr. PC. In view of these reasons, the statement of prosecutrix recorded as PW 3 is not trustworthy.
16. Though there is no proof of formal marriage of prosecutrix and accused but both prosecutrix while deposing as PW3 and accused in his statement u/s. 313 Cr. PC has stated that they have married. In Manish Singh (Supra), Our High Court has observed that child marriage is not void or voidable, u/s. 11 and 12 of Hindu Marriage Act, such underage marriages are only punishable u/s. 18 of the Hindu Marriage Act with imprisonment of 15 days and a fine of Rs.1000/-. Simply on this ground that accused has married minor prosecutrix, his culpability in this case does not stand establ ished.
FIR No. 95/10 page 9 of Page 11
17. In ossification report age of the prosecutrix was determined to be 16-17 years. It appears from the circumstances discussed above that prosecutrix left her house on 6.3.10 at her own volition and thereafter at her own she kept residing with the accused and also did alleged marriage.
18. In Manish Singh (Supra) the Hon'ble Delhi High Court has observed that if a girl of 17 years accompanies a boy of her own volition, offence of kidnapping is not made out as the girl is on the verge of majority and has reached the age of discretion. In this case, prosecutrix being around 17 years of age had accompanied accused on her own volition without any kind of enticement or inducement or force from any one. It was observed by Hon'ble High Court that there was no taking away or inducement of minor out of keeping from lawful guardian, hence essential ingredients of offence of kidnapping are missing. Reliance is also placed upon S. Varadarajan Vs. State of Madras, AIR 1965 Sup reme Court 942.
19. In view of the facts and circumstances of this case and in the light of law laid down by our High Court, ingredients of the offence U/s 361 IPC are not established against the accused. Accordingly offence U/s 366 IPC against the accused also goes. Accused is accordingly acquitted from the offence s U/s 363/366 IPC.
FIR No. 95/10 page 10 of Page 11
File be consi gned to r ecord room.
Announced i n the open Cour t ( SANJAY GARG )
on 7th day of Januar y, 2011 Addl. Sessions Judge ( East)
FTC, Karkardooma Courts:
DELHI.
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