Delhi District Court
State vs . Ravi on 7 May, 2018
State vs. Ravi
IN THE COURT OF SH PRITAM SINGH: ASJ04/
DWARKA COURT: NEW DELHI
Sessions Case No. 440318/16
State vs. Ravi
FIR No. : 373/2013
Police Station : Chhawla
Under Sections : 344/366/506 (II) IPC and section 6 r/w
section 5 (L) of POCSO Act
Date of presentation of charge sheet : 18.01.2014
Date on which judgment was reserved : 21.04.2018
Date on which judgment was pronounced : 07.05.2018
JUDGMENT:
1. In brief, the case of the prosecution is that on 27.10.2013 a complaint DY no. Y12 dated 24.10.2012 ACP/Najafgarh was marked to SI Devender Kumar, who alongwith W/Ct. Indu Rani went the house of the complainant (mother of child victim), where the child victim (identity withheld) gave her statement and stated that on 20.06.2013, Thursday, she had gone to Sai Baba Temple at Najafgarh, New Delhi and there she met Ravi, her maternal uncle in far relation and he enticed her and took her Azad Pur, New Delhi where he had raped her and after 23 days, he took her to his mausi (aunt) at Noida and kept her in a room under threat and also raped her. Thereafter, the accused took the FIR No. 373/2013 P.S. Chhawla 1 of 29 State vs. Ravi child victim to his house at Deenpur, Delhi and used to beat her and also did wrong act with her. One day the child victim had left the house of the accused and came to the house of her mother and narrated the incident to her mother. On this statement of the child victim, the present case was registered.
2. During the investigation, the statement under section 164 Cr.P.C. of the child victim was recorded. The medical examinations of the child victim and of the accused were conducted. The exhibits/samples of the child victim and the accused were obtained from the doctors in sealed condition and the same were seized by the IO and were sent to FSL for their examination. Other documents regarding the age proof of the child victim etc. were obtained. The statement of the witnesses u/s 161 Cr.P.C were recorded.
3. After completion of the investigation, the chargesheet under section 363/376/506 IPC and Section 4 of POCSO Act was filed against the accused. The copy of chargesheet was supplied to the accused in compliance of Section 207 Cr.P.C. On 24.02.2014 charge for offence under section 344/366/506 (ii) IPC and section 6 r/w section 5(l) of POCSO Act was framed against the accused. The accused pleaded not guilty and claimed trial.
FIR No. 373/2013 P.S. Chhawla 2 of 29
State vs. Ravi
4. The prosecution in order to prove the charge against the accused examined child victim as PW1. Ms. Mamta, who was residing in an adjacent room of rented accommodation of accused at Noida, was examined as PW2. Sh. Ram Kumar, landlord/owner of the house, where accused lived with the child victim in Najafgarh, New Delhi, was examined as PW3. Smt. Jaiwanti whom the accused approached her room on rent at Adarsh Nagar, New Delhi was examined as PW4. Dr. Arunima, Medical Officer, who prepared MLC of the child victim, was examined as PW5. Sh. Vijender Kumar, Teacher from the school of child victim was examined as PW6. Dr. Siddhisainik, SR OBS and Gynae Department, RTRM Hospital, who examined the child victim, was examined as PW7. IO Inspector Saroj Bala was examined as PW8. Ct. Rohtash Singh, who joined the investigation with the IO, was examined as PW 9, Ct. Nagesh Yadav, who deposited the sealed samples at FSL Rohini, was examined as PW10. W/Ct. Indu, who was present when the statement of child victim was recorded and took the rukka to the police station for registration of FIR, was examined as PW11. SI Devender, who went to the house of the child victim and recorded the statement of child victim and prepared rukka, was examined as PW12. W/HC Mamta, who alongwith IO came to Dwarka Court for recording the statement of child victim u/s 164 Cr.P.C, was examined as FIR No. 373/2013 P.S. Chhawla 3 of 29 State vs. Ravi PW13. Mother of child victim was examined as PW14.
5. The following documents were relied upon by the prosecution during its evidence, as under:
(i) MLC of child victim Ex.PW1/A (ii) Proceedings u/s 164 Cr.P.C of child victim Ex.PW1/B (iii) Statement of child victim to the police Ex.PW1/C (iv) Photograph of child victim and accused Ex.PW1/D1 (v) Letter dated 04.10.2013 Ex.PW1/D2
(vi) Photocopy of relevant entry of admission register Ex.PW6/A (OSR) of school of child victim
(vii) Photocopy of affidavit of guardian of child victim Ex.PW6/B (OSR) regarding her date of birth
(viii) Seizure memo of parcel/sample and sample Ex.PW8/A seal of child victim
(ix) Arrest memo of accused Ex.PW8/B
(x) Personal search memo of accused Ex.PW8/C
(xi) Seizure memo of five sealed pullanda and sample Ex.PW8/D seal of accused
(xii) Statement of mother of child victim dated Ex.PW8/D1 22.08.2013 recorded by WSI Saroj Bala
(xiii) Statement of child victim dated 22.08.2013 Ex.PW8/D2 recorded by WSI Saroj Bala (it was also Marked FIR No. 373/2013 P.S. Chhawla 4 of 29 State vs. Ravi as Mark A)
(xiv) Rukka Ex.PW12/A
(xv) Copy of complaint bearing Diary No. Y12 Mark A dated 24.10.2013 (xvi) Statement u/s 161 Cr.P.C of mother of the Ex.PW14/A1 child victim dated 27.10.2013 (xvii) Statement u/s 161 Cr.P.C of mother of the Ex.PW14/A2 child victim dated 28.10.2013 (xviii) Statement u/s 161 Cr.P.C of mother of the Ex.PW14/A3 child victim dated 30.12.2013
6. The following documents are admitted by the accused.
(i) Copy of FIR Ex.P1
(ii) Proceedings recorded by Ld. MM, u/s Ex.P2
164 Cr.P.C of child victim
(iii) MLC of accused dated 28.10.2013 Ex.K1
7. The statement of accused under section 313 Cr.P.C. was recorded on 23.03.2018. All the incriminating evidence were put to the accused but he replied that he was wrongly implicated in this case at the instance of mother and father of child victim, who were not happy from his marriage with the child victim. He further stated that later on the parents of child victim accepted their marriage and he alongwith child victim was residing on rent at a different place FIR No. 373/2013 P.S. Chhawla 5 of 29 State vs. Ravi and her family members used to visit them. He further stated that he was in distance relation but the child victim liked him and proposed for marriage to which he denied by saying that the marriage could be performed with the consent of her parents. But she was adamant and one day, she called him at Sai Baba Mandir and pressurized him to accompany her for marriage. He further stated the child victim threaten him to take steps against him, therefore, under pressure, he went to Haridwar alongwtih child victim and got married with her in a mandir. He further stated that when the child victim was residing with him at his house, the police came there and brought him and her to the police station and they were separated. He further stated that child victim was pressurized to state against him. But now the family members have no grudge against them and he alongwith child victim and their two children are living happily at his house.
8. The accused did not lead defence evidence, thereafter, defence evidence was closed on 23.03.2018.
9. Final arguments heard. Entire record perused and considered.
10. Ld. Additional Public Prosecutor submitted that from the deposition FIR No. 373/2013 P.S. Chhawla 6 of 29 State vs. Ravi of prosecution witnesses and the documents relied upon by the prosecution, the case of the prosecution was dully proved that the accused had committed offence under section 344/366/506 (ii) IPC and section 6 r/w section 5(l) of POCSO Act.
11. Ld. Counsel for the accused argued that PW1 and PW14, both admitted in their testimonies that accused married the child victim and two children were born to the child victim out of the wedlock. Ld. Counsel further argued that father of the child victim was against there marriage, therefore, when the child victim came to her house, she made a false complaint under pressure of her father. Ld. Counsel for accused further argued that considering the deposition of PW1 and PW14, who are material witnesses, it is dully proved that the accused had married the child victim and whatever physical relations were made between them, it was after their marriage, therefore, no offence is made out against the accused. Ld. Counsel further argued that the accused may kindly be acquitted.
12. PW1 child victim and PW14 mother of child victim are material witnesses, therefore, their testimonies are being discussed first.
FIR No. 373/2013 P.S. Chhawla 7 of 29
State vs. Ravi
13. PW1, child victim deposed that on 20.06.2013 at around 1.00 PM, she left her house for Sai Baba Temple at Najafgarh. After performing pooja, she came out of the temple, accused Ravi met her out the temple and took her to Dwarka Mor metro station by bus. From there, he took her New Delhi Railway station. From Old Delhi Railway Station, he took her Haridwar by train on the pretext of visiting Haridwar and they reached Haridwar on 21.06.2013 at around 4.00 AM. PW1 further deposed that from Haridwar, accused took her to Har ki paudi (ghat), where many people were present and they remained there till morning of 22.06.2013. On 22.06.2013 they left Haridwar for Old Delhi Railway Station by train and from there they reached Najafgarh by metro. PW1 further deposed that when they were returning to Delhi from Haridwar, on the way the accused gave beatings to her. PW1 further deposed that accused kept her in a room at Najafgarh for about one month, there he committed rape upon her on different occasions. Whenever, she tried to escape the accused gave beatings to her. PW1 further deposed that after vacating the room at Najafgarh, accused took her to Azad pur, Delhi to the house of his nani and they stayed there for one day. From Azad Pur, accused took her to Noida and kept in the house of his mausi (aunt) for about one and half months. During stay at Noida the accused committed rape upon her and also gave beatings to her. From FIR No. 373/2013 P.S. Chhawla 8 of 29 State vs. Ravi Noida, the accused took her from Noida to his own house at Najafgarh, where he kept her for 15 days and also committed rape upon her. PW1 further deposed that one day, she managed to escape from the clutches of accused and went to her house. On the same day, the accused came to her house alongwith police and the police took her to the police station. Thereafter , her medical examination was conducted. PW1 further deposed that her statement u/s 164 Cr.P.C was recorded and she identified her signature at point A on Ex.PW1/B.
14. PW1 deposed in her crossexamination that she could not tell her date of birth. She had studied upto 3rd standard but she could not tell the name of her school. PW1 admitted that there were around 2526 rooms in the plot, where she was residing with the accused in Noida. About 34 ladies were staying in the adjacent rooms and one of the ladies was Mamta and she was also tenant. PW1 further deposed that the accused used to leave the room at around 8.00 AM and returned at around 8.00 PM. She never prepared food and the accused used to cook food for her and himself.
15. During the crossexamination of PW1 , a letter dated 04.04.2013 was put to her by the Ld. Defence counsel. After hearing the contents of the said letter and after perusing it, the witness realize about the contents but admitted FIR No. 373/2013 P.S. Chhawla 9 of 29 State vs. Ravi her signature at point A, the letter was Ex.PW1/D2. (It appears that in the last sentence the word 'realize' was wrongly typed in place of 'denied' because the word 'realize' does not make any sense. Therefore, it will be read as 'the witness denied about the contents but admitted the signature at point A on Ex.PW 1/D2').
16. PW1 denied that on 22.08.2013, she was summoned by the IO and she had stated before the IO that she had voluntarily gone to Haridwar with the accused, where they got married and her statement was recorded in this regard on 22.08.2013, copy of same was marked as Mark A, bearing her signature at point X.
17. It is important to mention here that PW1 was recalled for her further crossexamination on application u/s 311 Cr.P.C filed on behalf of the accused.
18. PW1 further deposed in her crossexamination that she told to the police her age as 19 years, when she first time made complaint to the police. PW1 further deposed that she was not having any certificate in respect of her date of birth or age. She studied upto 2 nd class in two private schools as well as government school. First she took admission in the private school and thereafter FIR No. 373/2013 P.S. Chhawla 10 of 29 State vs. Ravi in government school. PW1 was shown her statement made to the police Ex.PW1/C. PW1 deposed that PW1/C was not read over to her before she signed it. The police never read out to her the statement u/s 161 Cr.P.C dated 27.10.2013, 30.12.2013 and 31.12.2013. PW1 further deposed that she gave the statement u/s 164 Cr.P.C under the influence of police. PW1 admitted that when she was staying with the accused at different places, her mother and mother of the accused used to come to meet them. PW1 further admitted that her father was not happy with her marriage with the accused, therefore, the present case was filed. PW1 further admitted that the accused was in her relation and they developed attraction to each other and fell in love. PW1 further admitted that she told the accused that she was in love with him and wanted to marry him. PW1 further admitted that she called the accused to Sai Baba Mandir and from there she went with the accused on her free will. PW1 further deposed that the accused never enticed her nor influenced her, nor kept her forcibly in any room. PW1 further admitted that the accused had never made any forcibly physical relation with her. PW1 further deposed that the accused and she married in Temple at Haridwar, Uttrakhand, but the documents were misplaced. PW1 further admitted that the physical relations were made between her and the accused only after their marriage and not before that. PW1 FIR No. 373/2013 P.S. Chhawla 11 of 29 State vs. Ravi further deposed that she and the accused were living as husband and wife and having two children from their wedlock. The age of their children are 4 years and 2½ years. PW1 further deposed that she was living happily with the accused and there was no trouble in their marriage. PW1 further deposed that at the time of her marriage, she was 19 years old.
19. As PW1 did not support her deposition which was recorded earlier, therefore, Ld. Additional PP for the State sought permission to reexamine her. PW1 deposed when reexamined by the Ld. Additional PP for the State that she studied in first class in government school. PW1 denied that she was telling her age wrong, in order to save the accused. PW1 denied that the accused had made physical relation with her prior to their marriage. PW1 denied that their marriage did not take place, therefore, she was unable to place any document. PW1 further denied that as she was living with the accused as his wife and also having two children from him, therefore, in order to save him, she deposed falsely.
20. PW14, mother of child victim deposed that the child victim was her third child among her six children. PW14 further deposed that the child victim was 19 years old at the time of incident, when she went missing. She made a FIR No. 373/2013 P.S. Chhawla 12 of 29 State vs. Ravi missing complaint to the police, the same Ex.PW8/D1. PW14 further deposed that the child victim was in the house of the accused and she gave intimation to the police. PW14 further deposed that presently the child victim was residing happily with the accused and had two children. As PW14 did not support the case of prosecution, therefore, she was crossexamination by Ld. Additional PP for the State, after seeking permission from the court.
21. PW14 deposed when crossexamined by the Ld. Additional PP for the State that she had not given any statement to the police. She had not stated in her statement that the child victim returned back to home on 04.10.2014 and informed her that the accused had taken away her by inducing and forcibly committed rape upon her. PW14 further denied that the child victim was interrogated in her presence and her statement was recorded. PW14 further deposed that she did not join the investigation and the accused was not arrested in my presence. PW14 further deposed that she had not stated to the police that she and her daughter, (child victim) alongwith the police had gone to Khera, Chougan Pur, Noida, where the child victim had identified the room, in which the accused committed rape upon her and resided there as husband and wife.
22. PW14 deposed in her crossexamination done by Ld. counsel for the FIR No. 373/2013 P.S. Chhawla 13 of 29 State vs. Ravi accused that the age of her eldest daughter was about 28 years and the age of her next daughter was around one and half year less to the eldest daughter. PW14 further deposed that the age difference between her daughters was about one and half years in each and she had no birth record of child victim. PW14 further deposed that she had no birth record of any of her children. PW14 further deposed that child victim had studied in three different schools. She and her husband had not deposited the birth record of child victim in any school and the date of birth in different school was mentioned by the teacher at the time of admission of the child victim. PW14 further deposed that she as well as her daughter (child victim) had never made any complaint to the police against the accused and police had never read over any statement to the child victim against accused Ravi. PW14 further deposed that child victim had never complained to her or any other family members against the accused. PW14 further deposed that child victim herself had gone with the accused without any inducement or any pressure from the side of accused.
23. Whether the child victim was below the age of 18 years at the time of incident?
The chargesheet was also filed under provisions of POCSO Act and FIR No. 373/2013 P.S. Chhawla 14 of 29 State vs. Ravi the charge under section 6 r/w section 5 (l) of POCSO was also framed against the accused. Therefore, it is necessary to ascertain whether the child victim was below the age of 18 years on the date of alleged incident.
24. It is well established law that to ascertain the age of the child victim, Rule 12 of the Juvenile Justice (Care and Protection of Children) Rule 2007 is applicable. The alleged incident took place in the year 2013 therefore, the Juvenile Justice (Care and Protection of Children) Rule 2007 shall be applicable and not Juvenile Justice (Care and Protection of Children) Rule 2016. Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Rules 2007 provides as under:
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
FIR No. 373/2013 P.S. Chhawla 15 of 29
State vs. Ravi
25. A bare reading of Rule 12 (3) of Juvenile Justice makes it clear that first of all the court will see the matriculation certificate in order to ascertain the date of birth of the child victim. In the absence of matriculation certificate, the certificate issued by the first attended school of the child victim will be considered and in absence of such a certificate from 1 st attended school of the child, the birth certificate issued by any Municipal Corporation would be considered.
26. The prosecution has tried to prove the age of child victim on the basis of her first attended school record. The prosecution has examined PW6, Sh. Vijender Kumar, Teacher in the MCD Primary School of the child victim, in order to prove the record of the date of birth/age of the child victim. PW6 deposed that as per the school record, the child victim was admitted in the first standard on 16.07.2004 vide admission no. 3215 and her date of birth is 15.08.1997. The copy of relevant entry of admission register Ex.PW6/A. PW6 further deposed that at the time of admission, the guardian of the child victim had filled an affidavit with regard to the age of the child victim. The copy of affidavit Ex.PW6/B. PW6 deposed in his cross examination that the entry in Ex.PW6/A was not made by him and the date of birth mentioned in Ex.PW6/A FIR No. 373/2013 P.S. Chhawla 16 of 29 State vs. Ravi was made on the basis of affidavit Ex.PW6/B. PW6 admitted that no birth certificate was filed by the guardian of the child victim at the time of admission.
27. From the deposition of PW6, it is established that the child victim took admission in 1st class in MCD Primary school 16.07.2004 and her date of birth recorded in the admission form on the basis of affidavit of her guardian is 15.08.1997.
28. Ld. Counsel for the accused argued that PW6 admitted that no birth certificate of the child victim was filed by her guardian at the time of her admission in the school. Ld. Counsel for the accused further argued that the prosecution had not produced any document in respect of date of birth of child victim and just on the mere filing of affidavit by the guardian of the child victim, the date of birth of the child victim cannot be 15.08.1997 as mentioned by her guardian in the affidavit. Ld. Counsel further argued that PW14, mother of child victim deposed in her crossexamination that the age of her eldest daughter was 28 years and the age difference between her daughters was about one and half year in each. Ld. counsel further argued that the child victim was at third number amongst her sibling, therefore, she was about 25 years old on 15.02.2018, when PW14 was examined in the court. Ld. counsel further FIR No. 373/2013 P.S. Chhawla 17 of 29 State vs. Ravi argued that PW14 deposed that the child victim had studied in three different schools and she did not have any document with regard to her age and her date of birth was mentioned by the teacher at the time of admission. Ld. Counsel for accused further argued that PW1, deposed that she had told her age as 19 years to the police when the first complaint was made to the police. Ld. counsel further argued that PW1 further deposed that she had studied in two private schools as well as in government school and she first took admission in the private school and thereafter in the government school.
29. I do not find any substance in the arguments of the Ld. Counsel for the accused. From the documents Ex.PW6/A and Ex.PW6/B, which are on record, it is dully established that the child victim took admission in first class in the school and her date of birth is 15.08.1997. The child victim took admission in the first class in the year 2004 much prior to the incident in question, therefore, there is no reason to discard the school record documents, which have been dully proved by the prosecution. From Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Rule 2007, it is clear that the date mentioned in the matriculation certificate or in the certificate issued by the school 1 st attended by the child would be material and not the basis on which the said date FIR No. 373/2013 P.S. Chhawla 18 of 29 State vs. Ravi was mentioned in such a certificate. A matriculation certificate or certificate issued by first attended school needs to be proved to the effect that the same was issued by the concerned Board or school and not to prove on what basis the date of birth of the child was mentioned in such certificate. If the court starts examining on what basis date the birth of the child was mentioned in the matriculation certificate or certificate issued by 1st attended school then the purpose of Rule 12 (3) would be defeated. So far as the deposition of PW1 and PW14 are concerned, the same have no value because the age of the child victim has to be ascertained as provided under rule 12 (3) of the Juvenile Justice Act. Therefore, the deposition of PW1 and PW14 that the child victim took admission in three different schools has no substance particularly when neither the name of any school was mentioned nor any such document was produced. During the investigation only one name of the school of the child victim was told to the IO and the concerned documents were collected by the IO from that school. The school record in respect of age of the child victim is dully proved by PW6. It is well established law that documentary evidence expels the oral evidence particularly when oral evidence has no basis.
30. The date of birth of the child victim is 15.08.1997 and she had left her FIR No. 373/2013 P.S. Chhawla 19 of 29 State vs. Ravi home on 20.06.2013. Thus, the child victim was 15 years, 10 months and 5 days on the day of the incident. Hence, it is established that the child victim was below 18 years on the day of first alleged incident.
31. Whether the accused committed offence under section 344/366/506 (ii) IPC and section 6 r/w section 5 (l) of POCSO Act?
Section 344 IPC Wrongful confinement for ten or more days Whoever wrongfully confines any person for ten day, or more, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to find.
Section 366 IPC: Kidnapping, abducting or inducing woman to compel her marriage etc. - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that FIR No. 373/2013 P.S. Chhawla 20 of 29 State vs. Ravi she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid].
Section 506. Punishment for criminal intimidation - Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc. - And if the treat be to cause death or grievous hurt, or to cause the destruction of any property by fire, imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine or with both.
Section 5(l) of POCSO Act. (l) whoever commits penetrative sexual assault on the child more than once or repeatedly.
Section 6 Punishment for aggravated penetrative sexual assault - Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but with may extend to imprisonment for life and shall also be liable to fine.
32. PW1, the child victim and PW14, mother of child victim are very FIR No. 373/2013 P.S. Chhawla 21 of 29 State vs. Ravi crucial witnesses but PW14 turned hostile and did not support the case of the prosecution. Now the question arise whether the deposition of PW1 is trustworthy. PW1 in her examination in chief deposed that on 20.06.2013, when she had gone to Sai Baba Temple at Najafgarh, New Delhi , the accused came there and took her to Dwarka Mor, Metro Station and from there he took her to Old Delhi Railway Station and from there, he took her to Haridwar by train on the pretext of visiting Haridwar. PW1 further deposed that on 22.06.2013 i.e. next day, they came to Old Delhi Railway Station and from there to Najafgarh. The accused kept her in a room at Najafgarh for about one month and committed rape upon her on different occasions. PW1 further deposed that after vacating the room at Najafgarh the accused took her to Azadpur, Delhi at the house of his nani and after staying for one day there, the accused took her to Noida at the house of her mausi (aunt) and stayed there for one and half month and the accused committed rape upon her on the house of her mausi. From Noida, the accused took her to his own house at Najafgarh and there also he committed rape upon her. However, PW1 admitted in her cross examination that when she was residing with the accused in Noida, there was around 2526 rooms and 34 ladies were also staying in the adjacent rooms. PW1 further deposed that the accused used to live the room at 8.00 AM and returned at 8.00 FIR No. 373/2013 P.S. Chhawla 22 of 29 State vs. Ravi PM. PW1 remained alone in the room at Noida from 8.00 AM to 8.00 PM and there were other ladies also, who were residing in other rooms but PW1 had not told anybody that she was kidnapped by the accused and was forcibly kept there. PW1 had admitted her signature on Ex.PW1/D2 but denied its contents. PW1/D2 was a statement of the child victim (PW1) in which she stated that she was residing on a rented house with her husband (accused) and on 09.10.2013 at 9.30 AM she had come from the house of accused to her mother house after telling her husband. There is also statement u/s 161 Cr.P.C of the child victim Mark A, record on 22.08.2013, wherein it is stated that on 20.06.2013, she had gone to Sai Baba Mandir at Najafgarh and from where, she alongwith accused Ravi had gone to Haridwar. It is further stated that after coming from Haridwar on the same day, they started living in a rented room and from there they had gone to Noida. Thus, it is clear that the child victim remained with the accused for more than two month and accused used to leave the room in the morning at 8.00 AM and returned at 8.00 PM but despite that she had not made any complaint to anyone against the accused nor ever tried to go to the police. Further from Mark A, the statement recorded by IO SI Saroj Bala in which the child victim stated that she had gone with the accused on her own and started living together in the room at Najafgarh, it is clear that the child FIR No. 373/2013 P.S. Chhawla 23 of 29 State vs. Ravi victim was neither influenced nor enticed by the accused, when she had left her home on 20.06.2013. Therefore, a doubt is raised in the case of the prosecution that the child victim was kidnapped by the accused in order to force her to marry him or to have illicit intercourse with him and also threatened her to kill her, if she did not accompany him. It was held in Chhagan Dame vs. State 1995 SCC (Cri.) 182, that when it is established that the child witness is under the influence of tutoring, it is not safe to rely on such evidence. In Arbind Singh vs. State, AIR 1994 SC 1068, it was held as a child witness is prone of tutoring, court should look for corroboration particularly when the evidence betrays trace of tutoring.
33. It has been held in Jagdish Prasad vs. State, 1994 Cr.LJ 1106 (SC) that when the testimony of eyewitness is clouded with grave suspicion and discrepant in material particulars, recording of conviction of the accused is not proper.
34. In S. Varadrajan vs. State of Madras, AIR 1965 SC 942 the Hon'ble Supreme Court held "Where facts indicate that the girl left her father's protection, knowing and having capacity to know the full import of what she was doing and voluntarily joined the accused, the offence of kidnapping cannot FIR No. 373/2013 P.S. Chhawla 24 of 29 State vs. Ravi be said to have been made out."
35. The doubt is further raised when PW1 further deposed in her cross examination that the police never read out to her, her statements under section 161 Cr.P.C dated 27.10.2013, 30.12.2013 and 31.12.2013. PW1 admitted that at the time of recording of her statement under section 164 Cr.P.C Ex.PW1/B, her mother, one police lady and a lady from NGO came to the court and she gave statement under the influence of the police lady. PW1 further admitted that her father was not happy of her marriage with the accused, therefore, the present case was filed. PW1 further admitted that she told accused that she was in love with him and wanted to marry him. PW1 further deposed that she and accused married in a temple at Haridwar. PW1 further admitted that the physical relations made between her and the accused after their marriage and not before that. PW1 further deposed that she had two children from her marriage to the accused and their age is 4 years and 2 ½ years. Ld. Additional PP for the state reexamined PW1 as she had not supported her deposition recorded earlier but nothing material came.
36. Thus, the deposition of PW1 does not inspire the confidence of the court that she was raped by the accused. Particularity when she deposed that the FIR No. 373/2013 P.S. Chhawla 25 of 29 State vs. Ravi accused made physical relation with her after their marriage. It is further established that the accused and child victim married at Haridwar and they have two children from their wedlock and it has been admitted by the PW14 (mother of child victim).
37. PW3, Sh. Ram Kumar, landlord/owner of the house, where accused lived with the child victim in Najafgarh, New Delhi, deposed that the accused alongwith a girl had stayed at his house for about one month as husband and wife. PW3 deposed in his crossexamination that the family members of accused and his wife used to visit them regularly. From the deposition of PW3 it is further established that the child victim and accused were residing as husband and wife in his (PW3) house on rent and their family members were regularly visiting them. PW2, PW4, PW5, PW7 to PW13 are formal witnesses and their role begin after the commission of alleged incident, therefore, their testimonies are not important to discuss in detail.
38. The accused stated that he was wrongly implicated in this case at the instance of mother and father of child victim, who were not happy from his marriage with the child victim. He further stated that later on the parents of child victim accepted their marriage and he alongwith child victim was residing FIR No. 373/2013 P.S. Chhawla 26 of 29 State vs. Ravi on rent at a different place and her family members used to visit them. He further stated that he was in distance relation but the child victim liked him and proposed for marriage to which he denied by saying that the marriage could be performed with the consent of her parents. PW-1, child victim also deposed that she and accused had made physical relation after their marriage. It is already established that the child victim was below 18 years of age but more than 15 years of age on the day of incident in question. The question arises, whether the physical relations made by the accused with the child victim after their marriage amounts to commission of offence under section 6 r/w section 5 (l) of POCSO Act? I think the answer is no. The act of accused making physical relation with the child victim, who was his wife and was above 15 years of age at the relevant time, is protected by the Exception 2 to Section 375 IPC. The Exception 2 to Section 375 IPC provides as under:
Sexual intercourse or sexual act by a man with his own wife, the wife not being under 15 years of age, is not rape.
39. Though, the Hon'ble Supreme court in Independent Thought vs. Union of India & Anr., Writ petition (civil) No. 382 of 2013, date of decision 11.10.2017, has amended Exception 2 to Section 375 IPC by removing the phrase "the wife not being under 15 of age" and replacing it with phrase "the wife not being 18 years" however, the Hon'ble Supreme Court has made it clear FIR No. 373/2013 P.S. Chhawla 27 of 29 State vs. Ravi that the said change/the judgment will have prospective effect. The Hon'ble Supreme Court in Independent Thought vs. Union of India & Anr. (Supra) has held as under:
"In view of the above discussion, I am clearly of the opinion that Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds:-
(i) it is necessary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Articles 14, 15 and 21 of the Constitution of India;
(ii) it is discriminatory and violative of Article 14 of the Constitution of India and;
(iii) it is inconsistent with the provisions of POCSO, which must prevail.
Therefore, Exception 2 to Section 375 IPC is read down as follows:
"Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape".
It is, however, made clear that this judgment will have prospective effect."
40. The accused made physical relation with the child victim after their marriage, the child victim had also admitted that she married with the accused with her free will. Thus, the physical relations was made by the accused with FIR No. 373/2013 P.S. Chhawla 28 of 29 State vs. Ravi the child victim after their marriage and as such his act is covered under the Exception 2 to Section 375 IPC. The law laid down by the Hon'ble Supreme Court in Independent Thought vs. Union of India (Supra) will have prospective effect as held by the Hon'ble Supreme Court. Accordingly, a sexual act done by a man with his wife before, 11.10.2017, even if the wife is minor i.e. between the age of 15 and 18 years is not an offence. The act of making physical relation by the accused with the child victim being his wife before 11.10.2017 does not amount to commission of offence as the child victim was more than 15 year on the day of incident. Hence, the accused cannot be convicted under section 6 r/w section 5 (l) of POCSO Act.
41. In view of the above discussion, the prosecution has failed to prove the charge under section 344/366/506 (ii) IPC beyond reasonable doubt. The prosecution has also not proved the charge under section 6 r/w section 5 (l) of POCSO Act against the accused Ravi due to the Exception 2 to section 375 IPC.
Digitally
Hence, the accused is acquitted from all the charges. signed by
PRITAM
PRITAM SINGH
SINGH Date:
2018.05.07
16:31:27
+0530
Pronounced in the open court (Pritam Singh)
on 07.05.2018 ASJ04/Dwarka Courts
New Delhi
FIR No. 373/2013 P.S. Chhawla 29 of 29