Delhi District Court
State vs . Sunil Kumar @ Loha on 23 March, 2013
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No.27/10)
Unique ID case No. 02404R0120082010
State Vs. Sunil Kumar @ Loha
FIR No. : 26/10
U/s : 363/365/366 IPC
P.S. : Bhalswa Dairy
State Vs. Sunil Kumar @ Loha
s/o Late Sh. Mahender Paswan,
r/o Village Akardiha, District Sitamarhi,
Bihar.
Date of institution of case 07.05.2010
Date on which, judgment has been reserved23.03.2013
Date of pronouncement of judgment 23.03.2013
JUDGMENT:
1 The accused is facing trial on the allegations of kidnapping a minor girl out of keeping of her father, her lawful guardian, with intent to force her or seduce her to marry him. Briefly stated the case of the prosecution is that on 23.02.2010, PW3 Babu Ram, complainant, went to P.S. and gave statement that he was doing a private job and was staying with his family which included his wife, one son and three daughters, at house SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 1 of 29 2 No. F122, Gali No.2, Shardanand Colony, Bhalswa Dairy. The prosecutrix was his eldest daughter and was aged about 17 years and was studying in GGSS School, K Block, Jahangir Puri. On 16.02.2012 prosecutrix had gone to school at about 7:00 AM but did not return back to home thereafter. Complainant further stated that he had made efforts to search for his daughter but without any success. He gave description of his daughter and clothes which she was wearing and prayed that action be taken in the matter. On the basis of this statement, case FIR Ex.PW3/A i.e. FIR No.26/10 u/s. 363 IPC was registered at P.S. Bhalswa Dairy.
2 The investigation of the case was marked to PW7 SI Rajender Singh, who began searching for daughter of the complainant. During the course of investigation, PW7 SI Rajender Singh got flashed wireless message all over India and also gave information to CBI, CRO, Missing persons squad, NCRB and Doordarshan. Subsequently, PW3 raised suspicion on Sunil Kumar @ Loha, that is the accused in the present case, who had been residing in the house of complainant and was permanent resident of Village Akardiha, Sitamarhi, Bihar. The IO sent HC Naresh Pal along with complainant Babu Ram to the village of accused, however, he could not found in his village. HC Naresh Pal returned back to Delhi on 19.03.2010 while complainant Babu Ram remained there. On 21.03.2010 PW7 SI Rajender Singh went to Village Akardiha along with HC Naresh Pal and PW2 W/Ct. Meena in search of accused and prosecutrix. They went to P.S. Sahiyara where they met complainant Babu Ram, who informed them that accused as well as prosecutrix had been detained by the local Police of P.S. Sahiyara. The PW7 met PW6 SI Shailender, Incharge of P.S. Sahiyara and took custody of prosecutrix and further arrested the accused on being produced before him.
SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 2 of 29 3 Both the prosecutrix and the accused were brought to Delhi with the permission of the concerned Court. The prosecutrix was sent for her medical examination to BJRM Hospital wherein she refused to get her internal examination conducted. The statement of prosecutrix was got recorded u/s.164 CrPC. The accused was also sent to JC. After completing investigation, charge sheet was prepared and filed in the Court against accused.
3 Upon committal of this case to the court of Sessions, charges for the offence under Sections 363/366 IPC were framed against the accused Sunil Kumar @ Loha. However, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
4 In order to prove its case, prosecution has examined 7 witnesses : 5 PW1 is the prosecutrix in the present case. Her testimony shall be discussed at length in the following paragraphs of the judgment. 6 The PW3, Babu Ram, is the father of the prosecutrix. He deposed as per his complaint recorded vide FIR Ex.PW3/A. He also deposed that he came to know that Sunil, who was residing in their locality, had taken away prosecutrix to Bihar and accordingly, PW3 went to P.S. Sahiyara where he met PW6 SI Shailender Kumar and narrated all the facts to him. Thereafter PW3 along with Police officials from P.S. Sahiyara went to house of accused Sunil at village Akardiha in Bihar in search of accused as well as prosecutrix, however, on reaching the said village, they came to SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 3 of 29 4 know that prosecutrix had left for village Sitamarhi and accordingly, PW3 along with Police officials went to village Sitamarhi and when they reached Sitamarhi Bus Stand, at about 6:00 AM, prosecutrix as well as accused Sunil were found standing there. Accused as well as prosecutrix were apprehended from there upon identification by PW3 and were brought to P.S. Sahiyara. The PW3 further deposed that at the time of his departure from Delhi to Bihar, he had informed the IO of P.S. Bhalswa Dairy and that on 23.03.2010 IO SI Rajinder along with other police official reached Sahiyara and took custody of accused as well as prosecutrix. The PW3 proved the seizure memo of prosecutrix as Ex.PW1/A and the arrest and personal memos of accused as Ex.PW2/A and Ex.PW2/B respectively. He then deposed that prosecutrix as well as accused were produced before the concerned Court and from there they were brought to Delhi and that on reaching to Delhi, prosecutrix was sent to Nari Niketan and later on he got her released from Nari Niketan and took her custody.
7 During his crossexamination PW3 deposed that prosecutrix had gone missing on 22.02.2010 and that he had lodged the FIR on the day his daughter went missing i.e. 22.02.2010. The PW3 was asked about the birth certificate of his daughter and he stated that he could not produce the same nor could he state the exact date of birth of the prosecutrix. He, however, stated that prosecutrix had studied in school till class 8th. He could not give details of documents filed by him in the school at the time of admission of the prosecutrix and stated that it was so as prosecutrix was accompanied by her mother at that time. He also stated that his wife had not told him what date of birth she had got recorded at the time of admission of prosecutrix in the school. The PW3 could also not state what age of SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 4 of 29 5 prosecutrix had been mentioned in ration card. During his further crossexamination PW3 stated that he was not aware if prosecutrix used to make telephonic calls to accused from STD Booth for about 15 minutes daily. He also stated that accused never came to their house in his presence and that he was never informed by his wife or daughter regarding the visit of accused to their house in absence of PW3. As regards his visit to Bihar, PW3 stated that he had left for Bihar on 22.02.2010 itself and that he came to know about village where prosecutrix and accused were residing when he visited P.S. Sahiyara in District Sitamarhi. When asked about marriage between accused and the prosecutrix, PW3 showed his ignorance about it and stated that this fact had not been told to him by his daughter i.e. the prosecutrix. The PW3 was put specific questions regarding call made by accused Sunil on his mobile phone from the PCO at Shankar Chowk (Bihar) on 05.03.2010 but he stated that he did not remember about any such call. The PW3 could also not remember if accused had told him that he was getting married to prosecutrix on that day.
8 When PW3 was recalled for further crossexamination on next date, he denied having received any telephone call from accused Sunil Kumar on 05.03.2010 regarding marriage of accused Sunil with the prosecutrix. He also denied that on 07.03.2010 accused Sunil had informed him that he had married with daughter of PW3 and that they were residing in village Akhira, P.S. Sahiyara, Bihar. He further deposed that he had gone to said village alone. He could not remember the date when he had gone to village Akhira and the name of police official whom he had met at P.S. Sahiyara. The PW3 also could not tell the name of the village from where prosecutrix and accused were apprehended. The PW3 could not state as to who had handed over photographs SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 5 of 29 6 of marriage of prosecutrix with the accused to the Police. He denied the suggestion that prosecutrix did not want to go home with him when she was produced in the Court. The PW3 denied that prosecutrix was in love with accused Sunil or that PW3 had failed to accept relationship of prosecutrix with the accused. He also denied the suggestion that prosecutrix was legally married to accused or that accused had neither kidnapped his daughter nor married her forcibly.
9 The PW4, Mohit Bansal, produced record from Government Girls Senior Secondary School, KBlock, Jahangir Puri, Delhi, where prosecutrix had been studying. He stated that prosecutrix was admitted in 6th class in their school on the basis of SLC issued by MCD Girls School, Bhalswa DairyI, Delhi. He proved photocopy of the said SLC as Ex.PW4/A and admission form of the prosecutrix as Ex.PW4/B. He further deposed that prosecutrix had left school on 20.02.2010 and that at that time she was studying in 8th class. He proved the photocopy of relevant entry No.6518 of admission and withdrawal register as Ex.PW4/C and the SLC issued by his school as Ex.PW4/D. He further stated that as per the school record, the date of birth of prosecutrix was 10.01.1993. From the crossexamination of this witness, it was brought out that at the time of admission of prosecutrix in the school of PW4 no birth certificate was filed. 10 The PW5, HC Himmat, deposed that on 23.02.2010 he was posted as Duty Officer at P.S. Bhalswa Dairy at the relevant time. He proved the computerized copy of FIR as Ex.PW3/A. He also stated that he had recorded DD No.16A regarding registration of the case and that he had handed over copy of FIR to SI Rajinder, who was assigned investigation of the present case. During his crossexamination, PW5 SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 6 of 29 7 stated that complainant had not given any separate complaint but had directly got FIR lodged.
11 The PW6, SI Shailender Kumar, was posted as SI at P.S. Sahiyara, District Sitamarhi, Bihar at the relevant time and he was discharging duties as SHO as well at that time. He deposed that on 20 / 21.03.2010 one Babu Ram came to P.S. and produced copy of FIR of the present case before him and told PW6 that his daughter i.e. the prosecutrix had been kidnapped by accused Sunil Kumar and had been brought to Bihar and was being kept in the area of Sahiyara. The PW6 went with complainant Babu Ram in search of accused Sunil Kumar and prosecutrix and at about 6:00 PM, when they reached at Dayan Kothi Chowk, complainant pointed out towards prosecutrix, who was standing there with the accused at Bus Stop. He also pointed out towards accused Sunil Kumar stating that he was the same person, who had kidnapped the prosecutrix. The PW6 apprehended accused Sunil Kumar as well as prosecutrix and brought them to P.S. where custody of prosecutrix was handed over to her father while accused Sunil Kumar was put in lockup on 23.03.2010. The PW7 SI Rajender Singh along with staff i.e. one male and one female reached P.S. Sahiyara on receiving information given by PW6 regarding recovery of prosecutrix and arrest of accused. The PW6 stated that he produced accused as well as the prosecutrix before the IO whereupon Ex.PW1/A i.e. the recovery memo of prosecutrix was prepared. Accused Sunil Kumar was arrested and personally searched vide memos Ex.PW2/A and Ex.PW2/B respectively. The PW6 identified accused Sunil Kumar in the Court.
12 During his crossexamination PW6 stated that he had made entry in station
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diary register pertaining to arrival of Babu Ram and production of copy of FIR before him. He, however, could not state the number of said DD entry. From further cross examination of PW6, it is brought out that he did not record any statement of Babu Ram before proceeding to search for prosecutrix and the accused. He also stated that complainant Babu Ram had produced copy of FIR and had also shown the photograph and ID proof of prosecutrix. He then corrected him to state that no ID proof of prosecutrix was produced. He further stated that he had not been given any description or photograph of the accused and that he had not kept the photograph of the prosecutrix with himself but had returned it to Babu Ram. From further crossexamination of PW6, it is brought out that he did not prepare any pointing out memo when Babu Ram pointed out prosecutrix and accused to him at Bus Stop and that PW6 had also not prepared personal search memo of accused though he had personally searched him. He further stated that photographs of marriage of prosecutrix and accused were not handed over to him nor were they handed over to the IO as and when PW6 joined investigations with him. The PW6 termed it correct that accused was apprehended on 20 / 21.03.2010 and was handed over to IO of the case on 23.03.2010 and that during the intervening period accused was not produced before any judicial Magistrate. The PW6 denied the suggestion that accused had informed the father of the prosecutrix regarding their whereabouts. He volunteered to state that he could not state anything about what had transpired between accused and the father of the prosecutrix. PW6 also denied the suggestion that accused had been arrested on 20/21.03.2010 from his house at village Akhida and not from the bus stop or that accused had handed over photographs of his marriage, marriage certificate and affidavit of marriage to PW6 on the date of his arrest by PW6.
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13 The PW7, SI Rajender Singh, is the IO of the present case. He deposed
regarding the investigations carried out by him and the documents prepared by him during the course of investigation. He deposed that on 23.02.2010, he was handed over investigation of the present case after registration of the FIR. He also deposed about steps taken by him to trace out the prosecutrix by flashing all India wireless message, etc. He further deposed that complainant Babu Ram raised suspicion over accused Sunil Kumar and that thereafter complainant and HC Naresh Pal went to native village of accused at village Akardiha, Sitamarhi, Bihar, but neither the accused nor prosecutrix could be traced and thus HC Naresh Pal returned back to Delhi on 19.03.2010 while complainant Babu Ram stayed back at said village. The PW7 further deposed that on 21.03.2010 he along with HC Naresh Pal and W/Ct. Meena went to Village Akardiha (Bihar) in search of accused and prosecutrix and that first of all they went to P.S. Sahiyara, where they met complainant Babu Ram, who told them that prosecutrix and accused had been overpowered by the local Police of P.S. Sahiyara and that thereafter PW7 met SI Shailender Kumar, Incharge of P.S. Sahiyara, who produced prosecutrix as well as accused before PW7. The prosecutrix was taken into custody vide seizure memo Ex.PW1/A while accused was arrested and personally searched vide memo Ex.PW2/A and Ex.PW2/B respectively. The PW7 also prepared site plan of the place where prosecutrix was produced by Incharge P.S. Sahiyara and proved the site plan as Ex.PW7/A. He further deposed that he interrogated the accused and recorded his disclosure statement Ex.PW2/C, got medical examination of accused conducted and produced him before concerned Court at Sitamarhi, Bihar, from where transit remand of accused and prosecutrix were obtained vide Ex.PW7/B. Both accused and prosecutrix SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 9 of 29 10 were brought to Delhi on 25.03.2010. On the same day, prosecutrix was taken for her medical examination to BJRM Hospital but she refused for the same. Accordingly, medical examination of accused was got conducted and he was produced before the concerned Court. The prosecutrix was also produced before member of the concerned CWC and was sent to Nari Niketan. On 26.03.2010 statement of prosecutrix was got recorded u/s.164 CrPC vide Ex.PW1/C and thereafter she was again taken back to Nari Niketan. After completing investigation PW7 filed charge sheet in the Court through SHO concerned.
14 During his crossexamination PW7 stated that complainant had not handed over any photograph / identity card of the missing girl to him on 23.02.2010. He volunteered to state that the same were handed over to him on the next date. From the further crossexamination of PW7 it is brought out that he did not record any statement of complainant Babu Ram when he expressed his suspicion upon accused Sunil Kumar @ Loha for taking away of his daughter. The PW7 denied that accused had called up on 05.03.2010 and 07.03.2010 and informed complainant about whereabouts of his daughter and himself. He also denied the suggestion that complainant and his wife knew about relationship between accused or the prosecutrix or that realizing the fact that they wanted to marry each other, parents of prosecutrix obtained her SLC from school within four days of her leaving her house. 15 The PW7 also stated that he had not inquired on what basis date of birth of prosecutrix had been entered in the school record and that he had asked the complainant for birth certificate of prosecutrix but no such certificate was handed over by SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 10 of 29 11 the complainant, who only gave her SLC to the IO stating that it was the only document which he had regarding proof of age of the prosecutrix. During his further cross examination PW7 stated that he was not aware when prosecutrix and accused had been arrested by SI Shailender and if SI Shailender had informed family members of accused about arrest of prosecutrix and the accused. The PW7 further stated that he did not visit house of accused Sunil for investigation. When shown marriage photographs Ex.PW1/A to Ex.PW1/C, PW7 stated that same had been handed over to him by accused after his arrest. He termed it correct that he had not mentioned about the said photographs in the personal search memo of the accused. The PW7 denied that accused and prosecutrix had been apprehended from the house of accused or that they were illegally detained there and that is why no document with regard to personal search of the accused, apprehension of accused, etc. were prepared by SI Shailender of P.S. Sahiyara. During his further crossexamination PW7 stated that he had not made any inquiry from other person seen in photographs Ex.PW1/A to Ex.PW1/C or the Pandit regarding version given by accused that prosecutrix had married him voluntarily and that he never paid visit to the place where accused and prosecutrix were residing after their marriage and that he did not inquire from neighbourers there or family members of accused at that place about complaint, if any, made by prosecutrix about her illegal confinement and forcible marriage with the accused. During his further crossexamination, PW7 stated that on the day prosecutrix was produced for her statement u/s.164 CrPC and she was inclined to go with her parents. He denied the suggestion that accused had not lured or enticed the prosecutrix nor had he married her forcibly. He further denied that accused and prosecutrix used to talk to each other on SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 11 of 29 12 mobile phone daily or that the accused had given PW7 particulars of said mobile phone or that PW7 deliberately did not obtain record of said phone as it would have shown prosecutrix and accused knew each other and were having affair with each other since about one year when prosecutrix went with him of her own free will. 16 PW2 W/Ct. Meena had joined investigation with the IO on 21.03.2010 when he went to P.S. Sahiyara in Bihar and found prosecutrix and accused in custody of PW6 SI Shailender and brought them back to Delhi after obtaining requisite permission from the concerned Court and deposed regarding the same.
17 After closing of prosecution evidence, statement of accused Sunil Kumar @ Loha was recorded u/s 313 Cr.P.C. Accused stated that he is innocent and he knew prosecutrix through a common friend and the common friend had introduced her to him in 20082009 and they were having a relationship. Accused further stated that prosecutrix and he used to talk to each other over the telephone everyday and that both of them decided to get married. He further stated that prosecutrix wanted to get away from her parents and settle in life with him and that prosecutrix told him that they should get married as she did not want to live with her parents any more. He further stated that on 13 - 14 of February, 2010, they both decided that they will go to the village of accused and get married there and live in his village and that on 16.02.2010, both of them took a train to his village in Bihar and accordingly, prosecutrix went with him of her own free will without use of any force by him and accompanied him to his village and in his village, prosecutrix was accepted by his family and relatives and that they got married of their own free will on 05.03.2010 and that on the day of marriage, accused SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 12 of 29 13 had called up father of prosecutrix and informed him about their marriage and even made the prosecutrix to speak to her father and that prosecutrix told her father that they were very happy with the marriage and that they informed where they were living and requested her father to come again on 07.03.2010 and give them blessings. He further stated that on 19.03.2010 SI Shailender came to his house and started questioning him and the prosecutrix and that they showed him proof of their marriage and handed it over to him but still SI Shailender took them to PS and detained them there. He further stated that SI Rajender took him to the Court in Sitamarhi and from Court he was brought him to Delhi and was produced before the Court. He stated that SI Rajender had made him sign on blank papers and that a false case had been registered against him because of caste difference between him and the prosecutrix.
18 The accused wanted to lead evidence in his defence wherein he examined one witness namely Sh. Jai Bhagwan. The witness was summoned to produce record of letter dated 02.06.2011 having serial No. D/1005366/DDE/PIO/CLZ/2011, which was an RTI reply given to one Dalip Kumar c/o Michael Peter, B119, Tagore Garden Extension, New Delhi27. He produced the original RTI reply and exhibited copy thereof as Ex.DW1/A (colly). He further stated that second page of reply was the proforma required to be submitted by parents at the time of admission of a child in the school and that the said proforma affidavit did not contain any specification that it was required to be attested by notary public etc. He further stated that there was no documentary proof or birth certificate of prosecutrix available with the department.
19 Arguments have been addressed by learned defence counsel for the
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accused as well as learned Additional PP for the State.
20 Learned Additional PP has contended that prosecution has succeeded in
proving its case against the accused beyond reasonable doubt. She has relied upon the testimony given by the prosecutrix before the Court wherein the prosecutrix has stated that she was enticed to go to Bihar by the accused and there she was made to marry him forcibly. She has accordingly prayed that on the basis of testimony of prosecutrix itself, accused Sunil Kumar @ Loha is liable to be convicted for the offences u/s. 363/366 IPC.
21 Learned Amicus Curie for the accused, on the other hand, has contended that accused has been falsely implicated in the present case and that prosecutrix had friendly relations with accused since year 20082009 when she was introduced to him through a common friend and that they used to talk to each other on telephone every day and decided to get married and that since prosecutrix insisted, they both decided to go village of accused and to get married there and accordingly, accused as well as prosecutrix went to village of accused at Bihar where prosecutrix voluntarily married accused on 05.03.2010 and also informed her father about it. It is further stated that at that time prosecutrix herself had spoken to her father and had told the accused that her father was very happy with their marriage. On 19.03.2010 all of a sudden SI Shailender came to the house of accused and started questioning prosecutrix and the accused and though he was shown proof of marriage of prosecutrix and the accused, they both were taken to P.S. and detained there and thereafter police from Delhi came and brought accused as well as prosecutrix to Delhi. Learned counsel for accused has relied upon SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 14 of 29 15 the statement u/s.164 CrPC given by the prosecutrix to state that the same is correct version of the incident and that prosecutrix has given a false statement before the Court as PW1 under pressure of her parents. The age of prosecutrix as put forth by the prosecution is also disputed and it is contended that prosecutrix was above 18 years of age when she got married to the accused and for this he has relied upon testimony of DW1, who stated that no age proof of prosecutrix was furnished at the time of her admission in the school. He has also relied upon the photocopy of the affidavit purported to have been executed by the prosecutrix at the time of her marriage with the accused wherein her date of birth is mentioned as 19 years. It is accordingly prayed that accused be acquitted of the charged offences in the present case. He has relied upon following judgments in support of his contentions : 1 Raunki Saroop Vs. State, AIR 1970 Crl. L. J. 1383.
2 Wahiduddin Vs. The State, 1998 IV AD (Delhi) 652 3 M. Veerabhadra Rao Vs. Tek Chand, AiR 1985 SC 28 4 Sheela Bai & Anr. Vs. State of M.P., 1997 (2) Crimes 461.
22 I have heard the arguments put forward by ld. Addl. PP and learned Amicus Curie for the accused Sunil Kumar @ Loha and have carefully gone through the record of the case and judgments filed by learned defence counsel. I have also carefully considered the evidence adduced by the prosecution in support of its case. 23 In the present case, as already observed hereinabove, the accused is facing charges for having kidnapped prosecutrix, a minor girl aged about 17 and a half years, from custody of her father and having force her or seduced her to marry him. The SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 15 of 29 16 prosecutrix is the only witness to these averments made by the prosecution and no link witnesses i.e. the Pandit, who performed the marriage between the prosecutrix and accused, persons present at the time of said marriage, family members of accused with whom accused and prosecutrix had stayed after marriage, the neighbourers staying at place where accused and prosecutrix had stayed after marriage have not been joined as witnesses to the present case. Further the documentary evidence i.e. the call details of the phone of accused on which he used to talk to prosecutrix have also not been placed on record by the IO.
24 The prosecutrix is stated to have gone missing from her home on 16.02.2010 and the case FIR was registered in the present case on 23.02.2010 when father of prosecutrix went to P.S. Bhalswa Dairy to lodge FIR regarding missing of the prosecutrix. In the FIR Ex.PW3/A nothing has been stated by the complainant about the person, who had taken away the prosecutrix. He has merely mentioned that some unknown person had enticed away his daughter. The prosecutrix is stated to have been recovered on 20 / 21.03.2010 from Bus Stop at Sitamarhi, Bihar, by PW6 Shailender at pointing out of PW3 Babu Ram. The IO recorded statement of prosecutrix u/s.161 CrPC on 23.03.2010 wherein she has stated that she had met accused Sunil Kumar @ Loha at Durga Chowk and became friendly with him. Accused asked her several times to marry him but prosecutrix refused stating that she was only 17 years of age and so she would not get married. On 16.07.2010 when she was going to school, at about 7:00 AM, she met accused Sunil at Durga Chowk. He again asked her to marry him. Prosecutrix again refused stating that she was only 17 years of age on which accused told her to accompany him for roaming around and assured her that they would not get SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 16 of 29 17 married. Prosecutrix got influenced by what accused stated and went with him. Accused took prosecutrix to his village and there they kept roaming around here and there. On 05.03.2010 he took prosecutrix to visit to a temple where he forcibly married her and thereafter they both stayed at the house of accused in the village. 25 The prosecutrix was brought to Delhi on 25.03.2010 and her statement u/s. 164 CrPC Ex.PW1/C (also exhibited as Ex.PX) was recorded on 26.03.2010 wherein she stated that, "Me Sunil se pyar karti hu ; me 16 Jan. 2010 ko school gai thi ; phir maine use phone karke Bhalswa Dairy par bulaya ; maine use kaha ki mujhe apne maa baap ke sath nahi rehna ; phir me uske sath Bihar chali gai ; hamne waha jakar Court me aur Mandir me shadi kar li ; phir mere pita ne yaha par police case kar diya ; phir mujhe aur Sunil ko policewale pakad kar Delhi le aye ; me Sunil ke khilaf koi kanuni karvahi nahi chahti kyonki wah mera pati hai aur me uske sath hi rehna chahti hu"
26 The prosecutrix appeared to depose before the Court as PW1. In her statement before the Court, prosecutrix stated that on 16.02.2010 she was going to her school and met accused Sunil, who asked her to accompany him for an outing and accordingly, prosecutrix went with him. The accused took prosecutrix to his village in Bihar, whose name prosecutrix did not remember, and also took her to Mandir but she could not state what he did in Mandir. Thereafter father of prosecutrix came searching SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 17 of 29 18 for her along with Police at Sitamarhi, Bihar and prosecutrix as well as accused were apprehended. The prosecutrix was recovered vide memo Ex.PW1/A. Thereafter she was brought to Delhi and was taken to BJRM Hospital for medical examination whereupon prosecutrix refused for her internal examination vide endorsement Ex.PW1/B on her MLC. The prosecutrix identified accused as the same person with whom she had gone to Bihar. She further deposed that learned MM had made inquiry from her but she did not remember whether her statement was recorded by him or not. The prosecutrix was shown her statement u/s.164 CrPC recorded by learned MM. The prosecutrix identified her signatures at point "C" thereupon and the said statement was then exhibited as Ex.PW1/C. 27 A leading question was put to the witness by learned Additional PP in response to which prosecutrix stated that accused Sunil had enticed her and induced her to go with him to Bihar where he performed marriage with her in Mandir forcibly. She was shown photographs of marriage from the judicial file and identified the same and the photographs were then marked as PW1/A to PW1/C. 28 During her crossexamination prosecutrix stated that she knew accused Sunil since festival of Lohri in the year 2010 when accused came to her house to give Prasad and that thereafter accused used to meet her on way to her school as a result of which they developed friendship with each other. The prosecutrix remembered the mobile phone number of her father but she did not remember the mobile number of her mother and accused Sunil. She, however, stated that she used to talk to accused from STD Booth from about 15 minutes daily. She further deposed that she had no SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 18 of 29 19 talk with accused on 15.02.2010. The prosecutrix then deposed that on 16.02.2010 she again met accused in gali. At this stage, prosecutrix got confused and stated that the date may have been 16.01.2010 and further stated that on that day she did not make any telephonic call to accused. The prosecutrix was put contents of Ex.PW1/C i.e. her statement u/s.164 CrPC, however, she denied having stated in the said statement that she had called accused Sunil to Bhalswa Dairy after making call to him and that she had told him that she did not want to live with her parents. During her further cross examination prosecutrix was put questions regarding her marriage with the accused. She stated that accused had not told her father on telephone about their marriage. She, however, admitted having signed an affidavit which was presented for the Court marriage. She also stated that she had stayed with accused Sunil in Bihar for about one month in the house of his sister and that parents of accused had already expired. She also stated that she did not remember name of village of sister of accused or the date she had got married with the accused. She then recollected the said date and stated that it was 05.03.2010. In her further crossexamination prosecutrix deposed that she was aware that her father had lodged a complaint with Police when her father had came to Bihar in search of her. She stated that someone from Bihar had made call to her father that she was there and so he and police came there. The PW1 denied that accused had made telephonic call to her father from Bihar regarding their marriage. The prosecutrix further deposed that she had not made complaint to the Pandit regarding her forcible marriage. She stated that it was so as accused had already paid money to him. However, subsequently she stated that the money which was paid by accused to Pandit was Dakshina. During her further cross examination prosecutrix stated that she had met sister of accused and her SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 19 of 29 20 children and that apart from them, she did not meet any other family member of accused and that she did not know how many people had attended their marriage and that there was no reception of the marriage and that she had not met or talked with any neighbourers of accused in his village. She also stated that she did not make any complaint regarding forcible marriage to anyone as accused would have beaten her. Prosecutrix, however, admitted that accused had not beaten her during the period she remained with him. She also stated that she had not disclosed to the sister of accused that she had brought her forcibly to Bihar. During her further crossexamination prosecutrix stated that they had gone from Bhalswa Dairy to railway station in TSR and from railway station they went to village of accused in Bihar by train. The prosecutrix could not tell the name of the station where they had alighted in Bihar. She, however, stated that she did not raise alarm in the train or otherwise while she was being accompanied by accused that he was taking her forcibly. The prosecutrix could not tell the date when she and accused were apprehended from Sitamarhi railway station or the name of the police officials, who had so apprehended them. The prosecutrix denied that she and accused were apprehended from his village in Bihar. She also stated that she did not go with her parents on return to Delhi as she was told by a lady in the room that she would have to remain in Child Welfare Committee for 15 days. The prosecutrix could not tell the name of said lady.
29 It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the Court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 20 of 29 21 are compelling reasons which necessitate the Court to seek corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies is not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the Court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. I am supported in my view by judgment in case titled as Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. & Anr., AIR 2003 SC 818 and Vishnu Vs. State of Maharashtra, AIR 2006 SC 508.
30 In the present case evidence of prosecutrix is found suffering from serious infirmities and inconsistencies and it is seen that prosecutrix had made deliberate improvements on material points with a view to rule out consent on her part. 31 In her statement u/s.161 CrPC made to the Police, prosecutrix does not state anything about her being in regular touch with the accused over phone for about 15 minutes daily. She claims that she had met accused by chance on way to school one day and thereafter she often met him and became friendly with him and that accused used to repeatedly ask her to marry him but she refused stating that she was 17 years SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 21 of 29 22 old and hence not ready for marriage and that on the day when she went missing from her house, accused again proposed to her for marriage but when prosecutrix refused, he told her to accompany him for an outing and thereafter, he took her to his native village and on 05.03.2010, he took her to Mandir on pretext of Darshan and there he forcibly married her. In contradiction to her statement u/s.164 CrPC dated 26.03.2010 Ex.PW1/C prosecutrix claims that she loved accused and on that day she went missing i.e. 16.01.2010, she herself had called the accused to Bhalswa Dairy and told him that she did not want to stay with her parents and went with him to Bihar where she had a Court marriage with him and also married him in temple and that when her father filed a Police case, police came and arrested accused as well as prosecutrix. She categorically stated that she did not want any legal action against the accused as he was her husband and that she wanted to stay with him.
32 In her statement as PW1, prosecutrix has again changed her version wherein she has brought in not only an element of force but also her own ignorance of what happened in Bihar. She does not mentioned anything about accused proposing marriage to her on the day she accompanied him to Bihar. From her crossexamination, however, it is clearly brought out that prosecutrix had known accused for sometime before she decided to go away with him. She admitted that she used to talk to accused from STD Booth for about 15 minutes daily. Though she admitted her signatures on statement u/s.164 CrPC i.e. Ex.PW1/C, she first stated that she did not know whether her statement had been recorded by learned MM and subsequently she denied having stated in the said statement that she had called accused to Bhalswa Dairy by giving him a call and had told him that she did not want to live with her parents. It is also brought SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 22 of 29 23 out from the crossexamination of prosecutrix that she had gone with accused in a TSR from Bhalswa Dairy to Railway Station and in a train from Railway Station to Bihar and during her entire journey, she did not protest or raise any alarm against her forcible taking by the accused. Similarly, even at the time of alleged forcible marriage, prosecutrix did not complaint to the Pandit or the others, who are seen in photographs mark PW1/A to PW1/C about her forcible marriage or the fact that she had been brought forcibly or enticed away from her father's custody by the accused. Though prosecutrix claims that she did not tell Pandit as accused had paid money to him, she later admitted that only money paid by the accused to Pandit was Dakshina. 33 The prosecutrix had gone away with the accused from Delhi on 16.01.2010 and got married to him on 05.03.2010. During this period she continued to stay with the accused and made no attempt to seek help or to escape from clutches of accused. She has otherwise admitted that during the entire period, she stayed with the accused, he never beat her and presumably he also did not threaten her otherwise prosecutrix would have stated so. Thus element of forcible taking or inducement appears to be lacking in this case. One very material piece of evidence is the document pertaining to the Court marriage between the parties. The prosecutrix has specifically mentioned about Court marriage in her statement u/s. 164 CrPC i.e. Ex.PW1/C. Learned counsel for accused has placed photocopy of affidavit executed by the prosecutrix and the accused on record (same are marked as Mark "X" (colly) for easy reference) and the same can now be considered as prosecutrix has herself stated in Ex.PW1/C that she had solemnized a Court marriage with accused. Though the said affidavit cannot be taken to proof of age of the prosecutrix, which is mentioned as 19 years, it certainly reflects that there was no SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 23 of 29 24 continued force or inducement deployed upon the prosecutrix by the accused. 34 It has been held in para 8 of judgment titled as Bunty vs. State (G.N.C.T.) of Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011 by the Hon'ble Delhi High Court that : "8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had travelled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...."
35 It would also be relevant to refer to the case titled as "S. Varadarajan Vs. State of Madras (reported as 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 that : "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 purposes SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 24 of 29 25 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."
36 Similar view has been taken in judgment in 1998 IV AD (Delhi) 652 relied upon by the defence counsel. The fact that prosecutrix has continuously changed her version makes it difficult to rely upon her statement alone to arrive at conclusion of guilt of the accused and some corroboration of testimony of the prosecutrix was required. The prosecution has failed to corroborate the testimony of prosecutrix by producing any other evidence.
37 Moreover the manner in which accused was apprehended also creates a doubt as to the case put forth by the prosecution. According to PW7 SI Rajender Singh, complainant Babu Ram had raised suspicion on accused and thereafter he along with HC Naresh Pal went to village Akardiha, Bihar, while HC Naresh Pal returned back on 19.03.2010 and complainant Babu Ram stayed back to search for prosecutrix and the accused. HC Naresh Pal has not been put forth as one of the witness in the present case. The father of the prosecutrix namely Babu Ram, who has been examined as PW2 on the other hand states that he had left for Bihar on 22.02.2010 itself, after lodging FIR, and that he had informed Police at P.S. Bhalswa Dairy before leaving. He does not mention about HC Naresh Pal accompanying him. There is also no explanation why PW3 went straightway to P.S. Sitamarhi to elicit support from PW6 SI SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 25 of 29 26 Shailender. The PW6 on the other hand claims that Babu Ram had come to him on 20 / 21.03.2010. He does not mention anything about going to house of accused Sunil at village Akardiha along with PW3 Babu Ram but straightway mentions about going to bus stop at P.S. Sahiyara and apprehending accused as well as prosecutrix at pointing out of Babu Ram. He candidly admits that from 20 / 21.03.2010 till he handed over accused to PW7 SI Rajender on 23.03.2010, he kept accused detained in his custody without producing him before any judicial Magistrate. The PW6 SI Shailender blatantly disregarded the guidelines laid down by Hon'ble Supreme Court in case of D.K. Basu Vs. State of W.B., AIR 1997 SC 610 (1), wherein specific directions were given to the police official regarding the arrest and detention of accused persons. Some of the preventive measures which the police personnel were required to follow was to prepare a memo of arrest at the time of arrest to be attested by at least one witness who may be either a member of a family of arrestee or a respectable person of the locality. It also prescribed that if accused was held in custody in police station or interrogation center or other lock up, he was entitled to one friend or relative or other person known to him or having interest in his welfare being informed of his arrest and place of detention. He was also entitled to know of grounds of detention and a body inspection memo was also required to be prepared. It was also prescribed that copies of all documents including memo of arrest should be sent to Ilaka Magistrate for record. None of these guidelines have been followed in the present case giving reason to believe that either the police official concerned i.e. SI Shailender had scant regard for the legislative mandate or the accused was not arrested in the manner put forth by the prosecution.
38 Moreover there are further contradictions as to date when the prosecutrix
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went missing from her house. The prosecutrix herself states that she had gone with the accused on 16.01.2010. The PW3 Babu Ram in FIR Ex.PW3/A states that prosecutrix had gone missing from school on 16.02.2010, however, in his statement as PW3, he claims that prosecutrix had gone missing from house on 23.02.2010. During his cross examination, he again gives a different date i.e. 22.02.2010 when the prosecutrix went missing and claims that he got the FIR registered on the day when prosecutrix went missing i.e. 22.02.2010. Thus there is considerable discrepancy as to what was the actual date when the prosecutrix went missing from her house and if prosecutrix had actually gone missing from her house on 16.01.2010 then there is a considerable delay in lodging of FIR by her father. Even the gap between 16.02.2010, the date mentioned in FIR when prosecutrix went missing, and 23.02.2010, when the FIR was registered, is considerable and does not stand satisfactorily explained by the prosecution. Moreover on one hand PW3 Babu Ram claims that he did not know who had taken away his daughter on 23.02.2010 and on the other record shows that he straight away went to Sitamarhi Bihar to search for accused at his native village. There is no link to show how PW3 Babu Ram came to know that accused had taken prosecutrix to his native village at Sitamarhi Bihar. The landlord of the accused from whom PW3 claims he got information has not been put forth as a witness nor is any statement u/s.161 CrPC of PW3 on record during period intervening 23.02.2010, when the FIR was lodged, and 21.03.2010 when PW7 SI Rajender met him at P.S. Sitamarhi, that he had expressed his supicion on accused and told about it to police officials at Delhi. As already observed hereinabove HC Naresh Pal who stated to have been sent with PW3 Babu Ram had not been joined as witness. Thus the entire case as put forth by prosecution does not inspire confidence and it appears that facts and evidence put forth before the Court have SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 27 of 29 28 been twisted to camouflage a 'run away marriage'.
39 Though the learned counsel for accused has also challenged the age of the prosecutrix contending that prosecutrix was above 18 years of age as is reflected from Mark "X" i.e. affidavit executed by prosecutrix at the time of Court marriage, considering that even from the record produced by PW4 the age of prosecutrix comes to be around 18 years and that she was on the verge of maturity and from the facts and circumstances the element of inducement and forcible taking away is not made out in the present case, the said issue is not examined at length in the present case. In view of the same judgment in 1970 Cr.L.J. 1383, 1997 (2) Crimes 461 and AIR 1985 SC 28 cited by learned counsel for accused are not being discussed at length. 40 In the present case, the element of 'taking away' or 'enticement' is totally lacking. In view of the material on record, it appears that prosecutrix was willing and consenting party and it seems that everything has happened with her sweet will. In these circumstances, the factum of kidnapping of prosecutrix does not stand proved.
41 The nutshell of foregoing discussion is that from the testimony of the prosecutrix as well as other material placed on record, the prosecution has failed to prove that accused had kidnapped prosecutrix on 16.02.2010, out of keeping of her lawful guardian i.e. her father, or that he had kidnapped the prosecutrix with intent to force her or seduce her to marry him. Accordingly, I acquit accused Sunil Kumar @ Loha of the charged offences, giving him benefit of doubt for the offences u/s. 363/366 IPC.
SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 28 of 29 29 File be consigned to the record room. (Announced in the open Court ) (Illa Rawat) (Today on 23.03.2013) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 29 of 29 30 FIR No. 26/10 P.S. Bhalswa Dairy 23.03.2013 Present: Ld. Addl. PP for the State. Accused produced from JC with counsel Sh. Michael Peter. Arguments heard. Judgment shall be passed during the course of the day. (Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 23.03.2013 At 5:00 PM Present: Ld. Addl. PP for the State. Accused produced from JC with counsel Sh. Michael Peter.
Vide separate judgment, announced today in the open Court, accused Sunil Kumar @ Loha has been acquitted of the charged offence.
Accused is in custody, be released, if not wanted in any other case. File be consigned to Record Room.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 23.03.2013 SC No. 27/10 State Vs. Sunil Kumar @ Loha Page Nos. 30 of 29