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Delhi District Court

State vs . Kundan @ Tuntun S/O Bishan Dev Rishi, on 2 February, 2010

                                               1

    IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGE­VII/NE­CUM­
     ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI :

S.C. No. 504/08

State         Vs.           Kundan @ Tuntun S/o Bishan Dev Rishi, 
                            R/o H.No. 815, Shanti Kushtha Samiti Tahirpur,
                            Kodhi Colony, Delhi. 

FIR No. 504/08
PS Nand Nagri
U/s 363/366/376 IPC. 

J U D G E M E N T :

­ Prosecution case emanates from the fact that on 18.10.08 at about 10pm, Faujiya (name changed) went out of her house No. 815, Shanti Kushtha Samiti, Tahirpur, Delhi, and did not return. Accused Kundan @ Tuntun, who was residing in the adjoining room, also went missing. Javed Ali lodged a missing report. Ultimately, a case was lodged against the accused. Investigation was taken up by Bishambar Dayal ASI. Faujiya (name changed) and accused Kundan were arrested by police from Jivarai, Dhani Satnam Singh, Distt. Firozpur, Punjab, on 09.11.08. They were brought to Delhi and got medically examined. It also revealed during investigation that accused had developed physical relations with Faujiya. During the course of investigation, bone age test of Faujiya was got done and she was found to be above 14 years and below 16 years of age. Investigation culminated into a charge­sheet against the accused.

2. Charge for offences punishable under section 363, 366 and 376 IPC was framed against the accused, to which charge he pleaded not guilty and claimed trial.

3. To substantiate the charge, prosecution has examined Poonam, Head Constable (PW1), Mohd. Shamim ASI (PW2), Indresh, Constable (PW3), Narender Singh, Constable (PW4), Faujiya (PW5), Firoza (PW6), Javed (PW7), Dr. M. Dass (PW8), Dr. Lipi Sharma (PW9), Vinod Kumar, Constable (PW10), Bishamber Dayal ASI (PW11), Muzammil (PW12), Mahender (PW13), Satnam Singh (PW14), Dr. Rajpal (PW15), Sh. S.K. Gupta, ADJ (PW16) and V. Shankarnarayanan (PW17) in the case.

4. In order to afford an opportunity to explain circumstances appearing in evidence against the accused, he was examined under section 313 Cr.P.C. He admitted that he was residing in the same locality where Faujiya along with her parents used to reside. He also admitted the fact of his apprehension along with Faujiya by ASI Bishambar Dayal, who was accompanied by Constable Narender, Firoza, mother of Faujiya, Mujammil, cousin of Faujiya and Mahinder Singh. He conceded the fact of his medical examination by Dr. M. Das, who after medical examination handed over blood, underwear and semen of the accused in a sealed parcel to Constable Narender. His rest of the case was of denial simplicitor. He claims himself to be innocent. He projected that he is Hindu by religion and Faujiya is a Muslim. After conversion, Faujiya married him in presence of Satnam Singh and other persons in a temple in Punjab. After their marriage, parents of Faujiya raised objection and pressurized him to become a Muslim. They also demanded money from him and started blackmailing him. When he did not 3 pay money, he was falsely implicated in the case by parents of Faujiya.

5. Poonam, Head Constable (PW1) recorded missing report lodged by Javed Ali. She made an entry to this effect at Sr. No.13A. After recording the same, she gave copy of DD No.13A to ASI Bishambar Dayal for investigation. She proved copy of DD No. 13A as Ex.PW1/A. Mohd. Shamim ASI (PW2) was working as duty officer at PS Nand Nagri, on 08.11.08. He recorded formal FIR and proved copy of it as Ex.PW2/A. Indresh, Constable (PW3) went to GTB Hospital, where IO ASI Bishambar Dayal along with Faujiya and her mother met him. He got done medical examination and bone x­ray of Faujiya. Doctor gave him pullandas and produced the same before IO, who took the same into possession vide memo Ex.PW3/A. Narender Singh (PW4) unfolded facts pertaining to arrest of accused Kundan.

6. Faujiya (PW5) unfolds that she knew accused Kundan, as he was residing near her house. She did not remember the date, month and year. However, three months ago, she ran away along with accused. She was in love with him. Accused told her that he would marry her and took her along with him. He took her to Punjab. They went to Jalalabad. She lived with the accused for about one month, as his wife. She did not recollect the name of the person in whose house they had stayed there. She had sex with accused of her own free will. Her brother, mother, along with police reached there. Police overpowered her as well as accused. They were brought to Delhi. She was sent for medical examination. Her statement was recorded by police. 4 She was produced before the Magistrate, before whom she made her statement Ex.PW5/A. She further unfolds that she is educated upto 5th standard. She did not recollect her date of birth. She tells her age as 16 years as on the date when her evidence was recorded. She further unfolds that accused had taken her without consent of her parents. However, she had given her age as 18 years before the doctor. Firoza (PW6) deposed that on 18.10.08 at about 10pm, accused had taken her daughter Faujiya along with him to Punjab. He took Faujiya, without permission to take her. Later on, Faujiya was recovered from Punjab. She gives age of her daughter as 16 years as on the date when her evidence was recorded. Javed (PW7) made complaint regarding missing of his daughter on 07.11.08 at police station. He also gave age of his daughter as 16 years. His daughter was taken by the accused to Punjab. Later on, she was recovered from there. However, he was not aware as to how accused took his daughter Faujiya. Dr. M. Dass (PW8) prepared MLC of accused Kundan @ Tuntun and proved the same as Ex.PW8/A. Dr. Lipi Sharma (PW9) prepared MLC of Faujiya and proved the same as Ex.PW9/A. Vinod Kumar, Constable (PW10) deposited five sealed pullandas at FSL Rohini, vide R.C. No. 160/21. Muzammil (PW12) unfolds that Faujiya is his cousin sister. It was on 8th day of the month. However, he did not remember the month, when he along with two police officials, his aunty Feroza and one boy namely Mahender went to Punjab in search of his cousin sister. He did not remember the name of the village. Accused Kundan 5 along with Faujiya met there. In the evening police officials started from Punjab along with Kundan and Faujiya and came back. Mahender (PW13) unfolds that Kirti Anand is his maternal uncle, who is owner of the aforesaid house. He used to reside at the house of his maternal uncle. He knew accused Kundan as he also used to reside as a tenant in the same house. Kundan had vacated the room of his maternal uncle before 15­20 days. Faujiya also used to reside in the same premises. Kundan is a resident of his native village Hasirekar, Distt. Garbanneli, Bihar. He came to know that parents of Faujiya lodged a complaint against Kundan regarding the elopment of Faujiya by Kundan. Police officials used to come at his room and used to harass him. Police officials used to ask him regarding the whereabouts of Kunda and Faujiya. He made a call at Bihar and he came to know that accused is in Punjab, through one person a resident of his native. He stated regarding the whereabouts of accused to police officials. He along with two police officials, mother of Faujiya and brother of Faujiya went at the house of Satnam Singh, Village Javeri Distt. Ferozpur, Punjab. Accused Kundan and Faujiya met them. Police officials brought both the persons to Delhi.

7. Satnam Singh (PW14) deposed that accused Kundan used to reside at his farm. He further deposed Kundan used to reside with a girl, whom he used to introduce as his wife. Dr. Rajpal (PW15) examined x­ray plates of Faujiya for her age determination. He found bone age of prosecutrix Faujiya 6 as above 14 years and below 16 years. He proved his report to this effect as Ex.PW15/A. Sh. S.K. Gupta, then ld. MM, (PW16) recorded statement of prosecutrix Faujiya under section 164 Cr.P.C., which is Ex.PW5/A. V. Shankarnarayanan (PW17) examined exhibits of this case. On biological examination of exhibits, he found blood on Ex.4 and human semen on exhibits Ex.1a, Ex.1b, Ex.2, Ex.3 and Ex.5. He proved his detailed report in this regard as Ex.PW17/A. On serological examination, he found Ex.4 showed reaction for human blood group 'A'.

Ex.3 and Ex.5 also gave reaction for 'A' blood group, whereas there was no reaction with respect to Ex.2. He proved his serological report as Ex.PW17/B. Bishambar Dayal ASI (PW11) conducted investigation. He detailed those very investigative steps, which were taken by him during the course of investigation.

8. Arguments were heard at the bar. Sh. Subhash Chauhan, ld. Prosecutor, presented facts on behalf of the State. Sh. Abdul Sattar, Advocate, had advanced arguments on behalf of the defence. ld. Counsel for the accused submitted that prosecutrix was a consenting party. He has taken me through entire evidence to establish that consent of the prosecutrix in this case was writ large. Admittedly, prosecutrix was known to the accused for quite sometime. She went out of her sweet will with the accused and married with him. It was further submitted that on the basis of entire ocular evidence and other evidence on record, it is clearly established that she was above 16 years of age. Even if, the radiologist had given her age as more than 14 7 years and below 16 years, even then there can be variation of two years on either side. In that case, benefit has to be given to the accused and if the principle of radiological examination is applied, age of prosecutrix must be considered to be between 17 to 18 years at the time of incident. For raising this submission, he relied upon 1994 Cr.L.J. 3244, Balasaheb vs. State of Maharasthra. He further relied upon Manish Singh vs. State, 2006 (I) RCR (Cri.) 653 for submitting that it was the case of running away marriage and even if it is taken that prosecutrix had not attended the age of 18 years, she was on the verge of attaining majority and as observed in Manish Singh (supra) that child marriage is neither void nor voidable and such marriages were only punishable under section 18 of the Hindu Marriage Act with imprisonment of 15 days and fine of Rs.1,000/­ as also under provisions of Child Marriage Restraint Act. He also relied upon AIR 1965 SC 942, S. Vardarajan vs. State of Madras. However, no offence under section 363/366/376 IPC is made out. As such it was submitted that accused is entitled to be acquitted.

9. On the other hand, it was submitted by ld. Prosecutor that even if, it is taken that prosecutrix was a consenting party, even then her consent is immaterial, as she being a minor, that is, less than 18 years of age. She was taken by the accused from lawful guardianship of her parents and thereafter admittedly the accused committed sexual intercourse with her. Under these circumstances, prosecution has been able to establish its case beyond 8 reasonable doubt and accused is liable to be convicted of the offences alleged against him.

10. I have given my considerable thoughts to respective contentions of the ld. Counsel for the parties and have perused the record.

11. Prosecution machinery was set in motion in the instant case, on receipt of DD No. 13A, Ex.PW1/A, lodged by Sh. Javed Ali regarding missing of his daughter. Subsequently, Javed made a complaint that his daughter Faujiya is aged about 14 years. He suspected Kundan @ Tuntun, who used to reside in his neighbourhood, in a tenanted premises, to be the person responsible for kidnapping of his daughter. On the basis of said report, FIR under section 363 IPC was registered. During the course of inquiry, it transpired that one person, namely, Mahender who used to reside in the same premises, knew Kundan and therefore ASI Vishambar Dayal met Mahender, who informed him that he had received a telephone call two days before that Kundan is residing in village Jivarai, Dhani Satnam Singh, Distt. Firozpur, Punjab. Therefore, on 08.11.08 ASI Vishambar along with Constable Narender, Firoza, mother of the prosecutrix, besides Muzzamil, cousin of Firoza and Mahender Singh went to police post Galukman police station, Guruhashar Distt., Firozpur, Punjab, and after taking HC Amolak Chand with them, they went to village Jivarai and went to the house of Sardar Satnam Singh. There Faujiya and Kundan were found, who were identified by the mother and brother of prosecutrix Faujiya. Kundan was arrested and both 9 were brought to Delhi. Faujiya was sent for her medical examination to GTB Hospital along with lady Constable, where her MLC Ex.PW9/A was prepared by Dr. Lipi Sharma. At the time of medical examination, Faujiya gave the history of running away with a boy, namely, Kundan on 18.11.08 and got married, along with history of rape. Thereafter, an application for recording statement of Faujiya under section 164 Cr.P.C was moved by ASI Vishambar Dayal and her statement u/s 164 Cr.P.C Ex.PW5/A was recorded by Sh. S.K. Gupta, ld. MM, before whom, it was stated by prosecutrix that Tuntun is her husband, who is in jail. She got married with him of her own will. She had gone with him of her own consent and will. She wanted to live with him. Nothing was done with her forcibly. Thereafter, when she appeared in the witness box, she testified that her mother is not happy with her marriage with the accused.

12. Prosecutrix Faujiya appeared in the witness box on 19.03.09. She has testified that three months before, she ran away with accused, who was known to her for last seven or eight months. She was in love with the accused. Accused told her that he will marry her and took her with him to Punjab. They went to Jalalabad, where she lived with accused for about one month as his wife. She had sex with accused out of her free will and consent. Her brother and mother along with police reached there and brought her along with accused to Delhi. She was sent for medical examination. Her statement was recorded by police. She was also produced before the 10 Magistrate, who recorded her statement Ex.PW5/A. In cross­examination, she further deposed that she married with accused in a temple by garlanding each other. Marriage was performed by the pandit, in presence of brother­in­ law of the accused and Satnam Singh. She still wants to live with the accused. She had stayed in the house of Satnam Singh with the accused.

13. Firoza (PW6), mother of the prosecutrix, has also deposed that she is not happy with marriage of Faujiya with accused, since accused is of different religion. In case, she gets a good match, then she will marry Faujiya at the age of 16 years. Muzammil (PW12) cousin of Faujiya has admitted in cross­examination that Faujiya informed him that she had married Kundan and wanted to live with him of her own sweet will and married with him of her own will. Satnam Singh, in whose house prosecutrix and accused stayed and got recovered, has also deposed that one boy, namely, Kundan used to reside at his farm. He used to reside with a girl, to whom he used to say that she is his wife.

14. Aforesaid discussion clearly goes to show that it is a clear case, where consent of Faujiya in going with accused Kundan @ Tuntun is writ large, inasmuch as, it is her own case that she was in love with the accused and lived with him of her will and then married with him. The marriage was performed by a pandit, in presence of brother­in­law of accused and Satnam Singh. Thereafter, they reside in the house of Satnam Singh as husband and wife.

15. In this back drop, question for consideration comes as to whether these facts answer ingredients of kidnapping as defined in section 361 IPC. This section reads as under :­ "Whoever takes or entices any minor under 16 years of age, if a male, or under 18 years of age, if female, or any person of unsound mind, out of the keeping of the lawful guardianship of such minor or person of unsound mind, without the consent of such guardian, is said to have kidnap such minor or person from lawful guardianship."

16. In order to attract section 361 IPC, it is incumbent upon the prosecution to prove following ingredients :­ (1) There must be taking or inducement of a minor or a person of unsound mind.

(2) Minor must be under 16 years of age, if a male or under 18 years of age, if a female.

(3) Taking or inducement must be out of keeping of lawful guardianship of minor or person of unsound mind, and (4) Taking or inducement must be without consent of guardian of minor or person of unsound mind.

17. The word ' takes' or ' entices' used in section 361 IPC are quite significant. The word ' takes' has been defined in the said dictionary meaning 't o cause, to give, to escort or to get into possession' . When the accused takes the minor with him whether she is willing or not, the act of taking is 12 complete. The word "entices" involves an idea of inducement by exciting hope or desire in the other. Similarly, the word "induces" used in section 362 IPC is quite significant. Case would fall within the mischief of section 363/366 IPC only if the prosecution is able to prove that it was either taking or enticing the minor or there had been inducement. The word "induce" means to prevail on, to bring about, to persuade; as defined in Law Lexicon by P. Ramanathan Aiyar.

18. Matter came up for consideration before hon' ble Supreme Court in S. Vardarajan (supra), while dealing with the case of a minor girl, who was on the verge of attending majority and who herself telephoned the accused to meet her and finding him waiting with his car, got into that car of her own, it was held that the accused was not guilty of taking out the girl out of the lawful guardianship of her father as there was no suggestion that the act was done by force or anything like that on the part of the accused. This judgement was relied upon in Bhagwan Singh & Ors. V. State of Anr., 2006 (3) JCC 2050 and following portion from the judgement of S. Varadarajan (supra ) was quoted :

"But when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) went from the house of the relative of father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own 13 accord, and the accused takes her to various places and ultimately to the Sub­Registrar's office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have ' taken' her out of the keeping of her lawful guardianship, that is, the father.

The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father' s house or even of telling her not to accompany him."

These authorities were relied upon subsequently in Ruksana Vs. Govt. of NCT of Delhi, 2007 (3) RCR (Criminal) 542.

19. Hon'ble High Court had relied upon Vivek Kumar @ Sanju and another v. The State and another in Crl. M.C. No. 3073­74/2006 decided on 23.02.07, wherein it was observed as under :­ "There is no law which prohibits a girl under 18 years from falling in love with someone else. Neither falling in love with somebody is an offence under IPC or any other penal law. Desiring to marry her love is also not an 14 offence. A young girl, who is in love has two courses available to her -- one is that she should marry with the consent of her parents after obtaining the consent of her parents. If her parents do not agree to persuade them or to wait for attaining the age of majority and then exercise her right as a major to mary the person of her own choice. However, this is possible only when the house of her parents where she is living has congenial atmosphere and she is allowed to live in peace in that house and wait for attaining age of majority. This might have been the reason in the mind of petitioner No.2 when she told her father that she was in love and wanted to marry Sanju, but the response of father when daughter confided in him, created the fear in the mind of petitioner No.2. Her father slapped her and told that her action would malign the religion and bring danger to the religion. He even threatened to kill her and marry her off to some rich person. When once a such a threat is given to a girl around 17 years of age, who is in love, under such circumstances she has a right to protect her person and feeling against such onslaught of her relatives even if the onslaught is from her own parents. Right to life and liberty as guaranteed by the Constitution is equally available to minors. A father has no right to forcibly marry off his daughter, who is below 18 years against her wishes. Neither he has a right to kill her, because she intends to marry out of her religion. If a girl around 17 years of age runs away from her parents house to save herself from the onslaught of her father or relatives and joins her lover or runs away with him, it is no offence either on the part of 15 the girl or on the part of the boy with whom she ran away and married."

20. Manish Singh (supra) was also a case, where FIR was registered under section 363 IPC, PS Sarojni Nagar. Direction was given to produce the prosecutrix. When she appeared in the Court, she stated that she had solemnized marriage with accused of her own accord in a temple of Delhi. They cohabit together, stayed at different places in Bihar and that she was neither forced or taken away. She had married with accused of her own choice. She claimed that she was 19 years old. However, her father claimed that she was 14 years old, as per school leaving certificate. In view of the statement of prosecutrix, hon'ble High Court observed that continuous criminal proceedings under section 363 IPC would be an exercise in futility. Besides, it would also be detrimental to matrimonial life of the couple and of the infant. Prosecutrix being around 17 yeas of age, on the verge of majority, having reached an age of discretion, had accompanied accused of her own volition, without any kind of enticing or inducement or force from anyone. There was, thus, no taking away or enticing away of minor out of keeping of lawful guardian. Essential ingredients of offence of kidnapping are missing. Relying upon S. Vardarajan (supra), FIR was quashed.

21. Present case squarely falls within four corners of these authoritative pronouncements, inasmuch as, prosecutrix has deposed that she ran away along with accused as she was in love with him. They went to Punjab and lived there for about 1 month as husband and wife. Accused had sex with her 16 with her free will. There is not a word in deposition of Faujiya from which an inference can be drawn that she left her house at the instance of accused or she was induced by him to accompany him. In these circumstances, there is no material on record from which an inference can be drawn that accused was guilty of taking away Faujiya out of the keeping of her father.

22. Keeping in view this finding that consent of the prosecutrix is writ large in the facts and circumstances of the case, age of the prosecutrix at the time of incident assumes significance. So question which arises for consideration is as to what was the age of prosecutrix on the date of incident. Prosecutrix has deposed that she was 16 years of age. However, according to her, this age has been given by her as informed to her by her parents. She admitted that before the doctor, she had given her age as 18 years. Firoza, mother of the prosecutrix, has deposed that prosecutrix was aged about 16 years on 19.03.09, when she came to deposed before the Court. According to her, she was 19 years old, when she was married and after three years of her marriage, Faujiya was born. However, she could not tell as to how many years have passed, when she was got married and she could not even say as to what was her age on the date, when she came to depose in the Court. She further deposed that prosecutrix was born at Kolkata. She was born in a hospital at Bashir Ghat through Cesarean operation. After her birth, she went to village and got her name registered with village authority. She further testified that prosecutrix studied in a school in village. However, at the time of 17 her admission in school, she did not produce any document. She could not tell as to what was the age of Faujiya, when she was got admitted in school. Under these circumstances, except for bald statement that Faujiya was 16 years of age, she could not produce any documentary evidence to substantiate the fact that she was 16 years on the date, when she came to depose before the Court. Same is the situation with testimony of Javed Ali, father of the prosecutrix, who has also deposed that prosecutrix was born in a hospital at Bashir Ghat and she studied in a school at Bashir Ghat. However, neither any birth certificate from the hospital nor any school record where date of birth of prosecutrix might have been recorded, has been collected by the prosecution. This witness has also stated that prosecutrix was 16 years of age on the day, when he came to depose before the Court, but admitted in cross­examination that he cannot tell as to how he has given her age as 16 years.

23. Dr. Lipi Sharma examined prosecutrix and at the time of examination, her age was given as 14 years. ASI Bishambar Dayal is the investigating officer of the case and he has deposed that he got medical examination of prosecutrix, including her boney x­ray done on 10.11.08. Muzzamil, brother of prosecutrix, has given the age of prosecutrix as 19 years. Dr. Raj Pal examined x­ray plate of prosecutrix and opined her bone age as above 14 years and below 16 years. Sh. S.K. Gupta, then ld. MM, recorded statement of prosecutrix under section 164 Cr.P.C, before whom 18 age of prosecutrix was given as 18 years.

24. Result of the aforesaid discussion is that no substantive proof regarding date of birth of prosecutrix is coming on record. Different versions are coming, inasmuch as, before the doctor prosecutrix gave her age as 14 years, while before the ld. MM she gave her age as 18 years. Before the Court she gave her age as 16 years. Similarly, parents of the prosecutrix have opined age of prosecutrix as 16 years, but could not give any basis for opining this age. Best evidence in form of birth certificate or school record has neither been produced by parents of prosecutrix nor collected by the investigating officer. In 2009 (3) JCC 2002, Masquddin Ahmed vs. State of Assam, hon' ble Apex Court observed that it is the duty of the party to lead best evidence in its possession, which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference u/s 114 Illustration (g) of the Evidence Act not withstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. In view of this authoritative pronouncement, for non­production of birth certificate of prosecutrix, an adverse inference has to be drawn against prosecution. Doctor, who had examined x­ray plates of prosecutrix, has opined her age to be above 14 years of age and below 16 years. ld. Counsel for the accused has placed reliance on 1994 Cr.L.J. 3044, Balasaheb vs. State of Maharashtra, where regarding ossification test, it was observed that according to Medical 19 Jurisprudence error in case of age based on ossification test may be of plus three years. In that case, ossification test showed age of prosecutrix between 14­16 years. Accused was held entitled to advantage of marginal error based on ossification test.

25. In AIR 1970 P&H 450, Raunki Saroop v. State, it was observed that test of age on the basis of fusion is a scientific test. In that case, radiologist, after examining elbow joints, wrist joints, shoulder joints and knee joints, has opined that prosecutrix was over 15 years, but less than 16 years. It was observed that margin of error in the radiologist' s examination was of two years on either side. It was also observed that if there is conflicting evidence as to age, benefit of uncertainty as to age of the girl should be given to accused. Reference may also be made to Jaya Mala V. Home Secretary, Govt. of J&K, AIR 1982 SC 1296, wherein their lordships of hon'ble Supreme Court had opined that there can be two years margin either way in radiological examination. The relevant portion of the judgement is reproduced :

"........It is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side......"

26. In Harendera Narain Singh V. State of Bihar, AIR 1991 S.C. 1842, their lordships of the Supreme Court had reiterated the well known principle 20 of the criminal jurisprudence law that :

"......The basis rule of criminal jurisprudence is that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the latter view favourable to the accused....."

27. Since as per medical evidence, which is x­ray report on bone age of prosecutrix, it has been opined that prosecutrix was aged above 14 years and below 16 years on the date of incident. Margin of error in age is of two years on either side and in view of principle of criminal jurisprudence, enunciated above, benefit has to be given to the accused. If principle of radiological examination is to be applied, then age of prosecutrix must be construed to be between 16 to 18 years at the time of incident. On the basis of entire evidence on record and on the basis of law declared by hon'ble High Court regarding giving benefit of doubt, it cannot be said that prosecutrix was a minor at the time of incident.

28. Even assuming for the sake of arguments that as per report of doctor, she was above 14 years and below 16 years, meaning thereby that even after giving marginal error of two years, she was below 18 years of age, even then in view of authorities discussed above, viz. S. Vardarajan (supra) 21 and Manish Singh (supra), where prosecutrix(s) were aged about 17 years, hon'ble Apex Court and hon' ble High Court respectively took the view that no offence under section 363 IPC is made out, since element of taking or enticing was missing. That being so, looking from any angle, no offences under section 363 and 366 IPC IPC are made out against the accused in the instant case also.

29. As regard offence u/s 376 IPC, as per testimony of PW8 Dr. M.Dass, who conducted medical examination of accused, there was nothing to suggest that he was not capable of performing sexual intercourse and Dr. Lipi Sharma, who conducted medical examination of Fauziya, found her hymen old ruptured. However, Fauziya had deposed that she had sex with accused of her own will. In view of the discussions, made above, Fauziya has been held to be above 16 years of age at the relevant time. That being so, case of prosecution does not fall under the category of section 375 "Sixthly" which provides that a man is said to commit 'rape' who has sexual intercourse with a women "with or without her consent, when she is under sixteen years of age". As such prosecution has not been able to bring home the guilt of accused u/s 376 IPC.

30. Result of the aforesaid discussion is that prosecution has not been able to establish it case against the accused beyond reasonable doubt. As such accused is entitled to benefit of doubt. Accused Kundan @ Tuntun is, accordingly, acquitted of the charge. He be set at liberty, if not wanted in any 22 other case. File be consigned to Record Room.

Announced in the Open Court (Sunita Gupta) On this 2nd day of February, 2010. Distt. Judge­VII/NE­cum­ASJ, Karkardooma Courts, Delhi.