Delhi District Court
State vs Mukesh Upadhaya on 30 September, 2011
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS)
OUTER DISTRICT:ROHINI COURTS:DELHI
SC No.83/2011
FIR No. 44/09
PS: Bawana
U/s 376/363 IPC
State Versus Mukesh Upadhaya
S/o Shri Kakeshwar Upadhaya
R/o Simrahya PO & PS Marhosh
District Chhapra, Bihar
Date of Institution: 01.06.2011
Date of conclusion of Arguments: 30.09.2011
Date of pronouncement of Judgment 30.09.2011
JUDGMENT
1. Mr. Nathu Ram, father of Ms. P (identity concealed and hereinafter referred to as prosecutrix) lodged a report with the police of PS Bawana, Delhi on 10.11.2007 to the effect that her daughter/prosecutrix of 14 years had left the house without assigning any reason. He again gave complaint on 6.3.2009 with the same facts to the same PS on which FIR No.44/09 dated 06.3.2009 PS Bawana was registered. Furd Baramdgi dated 13.7.2009 shows that prosecutrix was recovered from the possession of accused. Police recorded the statement of the prosecutrix on the same day in which she stated that she FIR No. 44/09 PS Bawana Page 1 of 6 was of 13 years on the date of the incident. Accused was on visiting terms with her family. After some time the family of the prosecutrix shifted to a jhuggi in Sector 2, DSIDC Bawana, Delhi. There also the accused used to visit her jhuggi. On 10.11.2007 the accused lured her on the promise of marriage and they married with each other in a temple located at Kalkaji, New Delhi. At last she stated to the police that accused married her against her will and also raped her.
2. Ld. Addl. P.P for State argued that from the facts a prima facie case under Section 363/366/376 IPC is made out against the accused.
3. On the other hand Ld. defence counsel argued that accused did not kidnap the prosecutrix and she voluntarily married with him and had two children from his loins but unfortunately both children have died.
4. The police had recorded the statement of the prosecutrix on 13.7.2009. She was produced before the Ld. Magistrate for her statement under Section 164 CrPC on 15.7.2009. In that statement to the Ld. Magistrate she stated that her family earlier resided in the village Pooth and she was knowing the accused very well. Thereafter they shifted to Sector-4 Bawana, Delhi and then to Sector-2 Bawana. On all these FIR No. 44/09 PS Bawana Page 2 of 6 places the accused and prosecutrix used to meet each other. She herself proposed to the accused that she wanted to marry her. The accused is Chamar by cast and prosecutrix is a Brahmin. Despite this the accused was ready to marry her and both married in the temple of Kali. Then she accompanied Mukesh/accused to his parental village in district Chhapra, Bihar and she gave birth to a female child who died. She was very happy being wife of the accused and accused left no stone unturned to make her happy. She again conceived but miscarried the child within two months. During all this period she used to talk to her parents who were asking her continuously to come to Delhi to meet them. On their asking the accused and prosecutrix came to Sector 4 Bawana, Delhi. On the day of their arrival in Delhi it was raining hard, so she thought to meet her parents next day. Next day her parents came to her house with the police because they were not happy with this marriage. The prosecutrix further stated to the Ld. Magistrate that her parents wanted to marry her against her will to a boy of their village but she was not ready for it. In the end she stated that Mukesh/accused did nothing against her will and nor established physical relations against her will. She expressed her desire to live with Mukesh saying FIR No. 44/09 PS Bawana Page 3 of 6 that he was her husband. She also raised apprehension that her parents would falsely implicate the sister of the accused. She asked the Ld. Magistrate to free the accused because she was living with him happily for the last two years. The prosecutrix was medically examined and she was not having any external mark of injury. Her hymen torn but age of this tearing has not been mentioned. She underwent ossification test and Maharishi Balmiki Hospital Poot Khurd came to conclusion on 14.7.2009 that on that day the prosecutrix was between 17 years to 19 years. She went missing from her house from 10.11.2007 and on the basis of this ossification report she was between 15 to 17 years on the date of missing. So she was minor.
5. In the case of "Amar Pal Yadav & Ors Vs. State, Crl. Misc.3370/09 (date of order 17.2.2010)" the Hon'ble High Court of Delhi held where the minor herself abandons the guardianship of her parents without any role played by boy/accused, no offence punishable under Section 363 of IPC is made out. The Hon'ble Apex Court of this country held in "S. Varadarajan Vs. State of Madra, 1965(1) SCR 243" that it must be borne in mind that there is a distinction between "taking" and "allowing a minor to accompany a person". FIR No. 44/09 PS Bawana Page 4 of 6 These expressions are not synonymous. It was observed that where a minor alleged to have been taken by the accused left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused, in such a case the accused cannot be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused or an active participation by him in the formation of intention of the minor to leave the house of the guardian.
6. In the present case in her statement under Section 161 CrPC she alleged that marriage as well as sexual intercourse were committed by the accused against her will but when she appeared before the Ld. Magistrate two days after, she completely exonerated the accused and rather came to her rescue praying that he be released at once. She also stated that her parents were not happy with her marriage with the accused because they wanted to get her married against her will with a boy of their own village. It is she who first proposed marriage to the accused and he readily accepted it and then they went to the Kali Temple where marriage between them was performed. So there is nothing in this case which may FIR No. 44/09 PS Bawana Page 5 of 6 suggest that accused lured the prosecutrix for marriage. Such proposal came from the prosecutrix herself. So no case under Section 363 and 366 IPC is made out.
7. After the marriage both proceeded to the village of the accused where the prosecutrix gave birth to a female child who died. She again conceived but miscarried within two months. Doing sexual intercourse with the wife who is more than 15 years of age is no crime as per IPC. So no case under Section 376 IPC also is made out.
8. In view of above discussion the accused is discharged of all the allegations. Personal bond is cancelled. Surety bond is discharged. Bonds under Section 437A CrPC be furnished.
File be consigned to Record Room.
Announced in the open Court On this 30th day of September 2011.
(UMED SINGH GREWAL) ASJ/Special Judge (NDPS) Outer Distt: Rohini Courts: Delhi FIR No. 44/09 PS Bawana Page 6 of 6