Delhi District Court
Mahadeo vs . State Of Maharashtra And Anr., (2013) ... on 11 August, 2017
IN THE COURT OF SHRI PREM KUMAR BARTHWAL, ASJ01, SPECIAL COURT
(POCSO), SOUTHEAST DISTRICT, SAKET COURTS, NEW DELHI
Case ID No. 02406R0085772014
SC No. 1622/16
FIR No. 13/14
Police Station : Defence Colony
Under Sections : 363/366/376 IPC & 4 POCSO Act
State
Versus
Sanjay Das @ Bapi Das,
S/o Shri Madan Das,
R/o Pukur Beria,
Dakshin Ganeshpur,
Kakdwip, South 24 Paragna,
West Bengal.
Date of Institution : 01.04.2014
Date of Reserving Order : 11.08.2017
Date of Decision : 11.08.2017
J U D G M E N T
1.Brief facts of the case, as per final report are that on 19.01.2014, father of minor girl, 'R' aged about 16 years {The names of child victim and her family members are being withheld to protect their identity as per Section 33(7) of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act} complained FIR No. 13/14, PS Defence Colony Page 1 of 13 that on 18.01.2014 his daughter 'R' alongwith her sister 'N' had gone to their school to appear in examination and his daughter 'N' had returned to house after examination but his other daughter 'R' had not returned and he had tried to trace his daughter 'R' but she could not be found. On the basis of said complaint, FIR No. 13/14, PS Defence Colony was registered U/s 363 IPC and the matter was taken up for investigation.
2. During the course of investigations, the child victim/prosecutrix was recovered at West Bengal; statement of child victim was got recorded under section 164 Cr.P.C and documents regarding age of the child victim were also obtained and she was taken for her medical examination but she refused her internal examination. Statements of witnesses were recorded by the police and after completion of investigation, charge sheet was filed against the accused, Sanjay Das @ Bapi Das under sections 363/366/376 IPC & 4 of POCSO Act.
3. After taking cognizance of the offence by my Ld. Predecessor, the accused was summoned and, thereafter, copy of charge sheet and documents were supplied to him. Thereafter, arguments on the point of charge were heard and based upon the material on record, charge against accused was framed by my Ld. Predecessor for the offences punishable u/s 363/366A IPC & 4 POCSO Act to which the accused pleaded not guilty and claimed trial. Accordingly summons were issued to the witnesses.
4. In order to substantiate the charge, the prosecution has examined six witnesses in all.
5. The prosecutrix/victim 'R' was examined as PW1 and she has deposed that she wanted freedom and to live her life as per her wishes and hence she had left her home in January, 2014 and reached Koklata alongwith accused, Sanjay where she was living FIR No. 13/14, PS Defence Colony Page 2 of 13 happily with the family of the accused and that his family members have told her that as on completion of 18 years they will perform her marriage with the accused. PW1 has categorically deposed that she has not made physical relations with the accused so far. PW1 has also deposed that her father had reported the matter to police and police reached at the house of accused in Village Pukur Beriya, District South 24 Pargana, West Bengal and she was brought to Delhi and taken to hospital where she refused for any internal examination. PW1 has also deposed that she was nervous and due to nervousness she had given statement about marriage with accused at the time of recording her statement U/s 164 Cr.P.C. During her crossexamination she stated that she has not maintained sexual relations with the accused at any point of time since 18.01.2014 till date and that she did not tell the police that she was living with the accused as his wife.
6. PW2, 'NKS' is the father of the prosecutrix and stated that on 18.01.2014, PW1 alongwith her younger sister 'N' had gone to their school to appear in the examination and his daughter 'N' had returned to house but PW1 had not returned and thereafter he gave a complaint, Ex.PW2/A in writing to police. PW2 has deposed that later on he was informed by the police about the recovery of PW1.
7. PW3, Shri Kailash Chand Yadav, Asstt. Public Health Inspector has deposed that as per their record, PW1 was born on 05.03.1998 and this witness proved the birth certificate of PW1 as Ex.PW3/A.
8. PW4, 'S', mother of PW1 has deposed that on 18.01.2014 PW1 had gone to her school and thereafter she did not return to home and that her husband lodged a report at PS Defence Colony in this regard. PW4 has further deposed that PW1 got FIR No. 13/14, PS Defence Colony Page 3 of 13 married with the said accused. PW4 has further deposed that PW1 was recovered after about one month in West Bengal by the police.
9. PW5, ASI Ranbir Singh has deposed that on 09.02.2014 mother of the prosecutrix came to police station and he recorded her statement U/s 161 Cr.P.C. and that she had also provided him mobile number of accused and the said mobile phone was kept under observation and as per CDR, location of said mobile phone was found in District South 24 Pargana, West Bengal. PW5 further deposed that on 20.02.2014 he alongwith HC Sailesh and brother of the prosecutrix went to District South 24 Pargana, West Bengal and on 22.02.2014 they had reached at Pukurberiya Dakshin Ganeshpur Kakdwip where accused, Sanjay Das was identified by prosecutrix's brother. PW5 has further deposed that accused was apprehended and he took them at his jhuggi where prosecutrix was found and accused was arrested vide arrest memo, Ex.PW5/A and his personal search was conducted vide memo, Ex.PW5/B. PW5 has also deposed that accused as well as prosecutrix were taken to Civil Hospital Kakdwip for their medical examination and thereafter PW5 collected the MLC of accused as well as prosecutrix from the doctor. PW5 has deposed that prosecutrix had refused for her internal examination and prosecutrix was lodged in Prayas (shelter Home), Kolkata. PW5 has also deposed that on 24.02.2014 he alongwith prosecutrix, her brother and HC Shailesh left Kakdwip for Delhi and he had handed over the prosecutrix alongwith case file to IO/SI Rakesh Kumar.
10. PW6, Inspector Pratibha Sharma has deposed that on 15.03.2014 she had got verified the birth certificate of the prosecutrix from MCD and had collected CDR of accused's mobile alongwith certificate U/s 65B of Evidence Act from Service Provider FIR No. 13/14, PS Defence Colony Page 4 of 13 Vodafone Mobile. PW6 has deposed that,after completion of investigation, she filed challan in the court against the accused, Sanjay Das. PW6 has also proved the arrest memo of accused as Ex.PW6/B; statement of prosecutrix U/s 164 Cr.P.C. as Ex.PW6/C and endorsement of ASI Ombir Singh on rukka, Ex.PW6/D.
11. I have heard the Ld. APP for the state, Shri Sunil Dutt and Shri V.K. Sisodia, Ld. counsel for accused.
12. In the present case, accused Sanjay Kumar has been charged under section 363/366A IPC & 4 of POCSO Act.
13. The onus to prove the aforesaid charges were upon the prosecution.
14. Section 361 Indian Penal Code, 1860 defines the offence of kidnapping from lawful guardianship. As per this section, whoever takes or entices any minor girl under eighteen years of age out of the keeping of the lawful guardian of such minor girl without the consent of such guardian, is said to kidnap such minor girl from lawful guardianship. In a case where such kidnap or abduction is 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 then the said act is an offence punishable under section 366 IPC, 1860.
15. The sexual offence of 'Rape' has been defined in Section 375 Indian Penal Code, 1860. As per this, if the sexual intercourse with a woman is against her will (clause 1) or without her consent (clause 2), or her consent has been obtained forcibly (clause 3), or her consent has been obtained deceitfully (clause 4), or her consent has been obtained after administering stupefying or unwholesome substance or she is a person of unsound FIR No. 13/14, PS Defence Colony Page 5 of 13 mind (clause 5), then it is 'rape'. However, if the sexual intercourse was even with her consent, if the girl is below 16 years, it is also 'rape' (clause 6). In such circumstances, the victim girl's consent is immaterial. But, a consensual sex by a man with a girl of above 16 years unaccompanied by any of the vices mentioned in clause 1 to 5 will fell out of the offence of rape as defined in Section 375 I.P.C.
16. Thus, for the offence of 'kidnapping' and 'rape', determination of the age of the victim girl at the time of incident is very important. The Hon'ble Apex Court in the case of Mahadeo Vs. State of Maharashtra and Anr., (2013) 14 SCC 637, has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 is applicable in determining the age of the victim of rape. In the State of Delhi separate rules have been framed and the same are Delhi Juvenile Justice (Care and Protection of Children) Rules, 2009 and Rule 12(3) of same provides the procedure to be followed in determination of Age as under:
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 date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
ii. the birth certificate given by a corporation or a municipal authority or a panchayat;
iii. the matriculation or equivalent certificates, if available;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the FIR No. 13/14, PS Defence Colony Page 6 of 13 medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child.
17. In the present case the complaint was filed mentioning the age of prosecutrix about sixteen years. During the investigations the birth certificate of the prosecutrix was collected which recorded her date of birth as 05.03.1998. The prosecution has examined PW3, Shri Kailash Chand Yadav, Asstt. Public Health Inspector, Central Zone, Lajpat Nagar, SDMC, New Delhi to prove the birth certificate, Ex.PW3/A. However, the said witness has deposed that name of the prosecutrix was entered in their record on 06.07.2011 on the basis of order of SDM vide registration no. MCDOLIR0111 004805017. The prosecution has failed to explain the circumstances of registering the birth of prosecutrix in the year 2011 when she was born in the year 1998. As per Rule 12(3) of Delhi Juvenile Justice (Care and Protection of Children) Rules, 2009, in every case concerning a child or juvenile in conflict with law,the first document to be considered for the age of the child is the date of birth certificate from the school (other than a play school) first attended by the child and only in the absence whereof the birth certificate given by a corporation or a municipal authority or a panchayat is to be looked into. In the present matter the prosecutrix was a student and in her statement U/s 164 Cr.P.C. as well as in the complaint, Ex.PW2/A, it is claimed that the prosecutrix/victim was studying in school. However, no record from the school of the child has been produced or proved on record. Thus, in view of the above, it cannot be held with certainty that the prosecutrix/victim girl was a minor on the day when she left her home and went with the accused on her own and got married with the accused.
18. The prosecutrix,PW1 in her statement recorded by the Magistrate during the FIR No. 13/14, PS Defence Colony Page 7 of 13 investigations has stated that on 18.01.2014 she had gone to Kolkata alongwith the accused where they got married on 24.01.2014 and thereafter she was residing there for about one month and ten days and that she wants to live there on her own. Thus it is clear from the facts that the prosecutrix was in affair/love with the accused.
19. Full Bench of the Hon'ble Delhi High Court in case "Court On Its Own Motion (Lajja Devi) Vs. State" 2012 VI AD, Delhi 465, has held as under:
"51. If the girl is more than 16 years, and the girl makes a statement that she went with her consent and the statement and consent is without any force, coercion or undue influence, the statement could be accepted and Court will be within its power to quash the proceedings under Section 363 or 376 IPC. Here again no straight jacket formula can be applied. The Court has to be cautious, for the girl has right to get the marriage nullified under Section 3 of the PCM Act.Attending circumstances including the maturity and understanding of the girl, social background of girl, age of the girl and boy etc. have to be taken into consideration."
20. In relation to offence under Section 363 IPC for which the present FIR was registered against the accused, it would be appropriate to refer to a judgment of the Hon'ble Apex Court delivered in S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, wherein the Hon'ble Supreme Court observed that a girl below 18 years had asked her boyfriend (the accused) to come to a particular place and the accused had agreed to accompany the girl. It was held that where a minor leaves her father's protection knowing and having capacity to know the full import of what she is doing voluntarily joins the accused, the accused cannot be said to have taken her away from the keeping FIR No. 13/14, PS Defence Colony Page 8 of 13 of her lawful guardian. The relevant observations of the Apex Court are as under: "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. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can 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 person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian."
21. In the aforementioned case, the Apex Court by noting the distinction between taking FIR No. 13/14, PS Defence Colony Page 9 of 13 and allowing a minor to accompany a person held that no case of kidnapping was made out.
22. In Ravi Kumar Vs. State & Anr. reported as 124 (2005) DLT 1, a Division Bench of Hon'ble Delhi High Court has ruled that the minority of the spouse cannot be a ground to declare their marriage illegal. As per this judgment, the marriage of such a spouse is neither void nor illegal on account of his or her being less than 18 years but over 15 years of age. It has been laid down by the Hon'ble Supreme Court of India in case S. Varadarajan Vs. State of Madras reported as AIR 1965 SC 942 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 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."
23. In the present case also, the element of 'taking away' or 'enticement' is found to be lacking as there is no such averment in entire deposition of PW1. Rather the prosecutrix, PW1 has categorically averred during her deposition on 09.08.2016 that she wanted freedom and live her life as per her wishes and she had gone to Kolkata voluntarily and she is happily married with the accused. In view of the material on record, it is evident that prosecutrix, who was at the verge of majority, was willing and consenting party as she was in love with the accused and it seems that everything has happened with her own will. In these circumstances, the factum of kidnapping of FIR No. 13/14, PS Defence Colony Page 10 of 13 prosecutrix does not stands proved. The prosecutrix/PW 1 has also categorically deposed that she did not have physical relations with the accused till date.She has also refused to undergo her internal medical examination. There is nothing on record to belie the claim of PW 1 that no physical relations were made by her with the accused till date.
24. The nutshell of foregoing discussion is that from the testimony of the prosecutrix as well as other material witnesses examined by it, the prosecution has failed to prove that accused had kidnapped prosecutrix, with intention to compel her to marry him and to force/seduce her to have illicit intercourse with him or that the accused has committed any penetrative sexual assault upon the prosecutrix. As such the accused, Sanjay Das @ Bapi Das stands acquitted from the charges framed against him. Consequently, the personal bond/surety bond, if any, of the accused is discharged.
25. In terms of Section 437A Cr.P.C., let accused furnish personal bond in the sum of Rs.20,000/ with one surety in the like amount with undertaking to appear before the Appellate Court as and when he receives notice from it.
26. Case file be consigned to record room.
Announced in Open Court ( PREM KUMAR BARTHWAL )
on 11.08.2017 ASJ01, Special Court (POCSO),
SouthEast District, Saket Courts,
New Delhi
FIR No. 13/14, PS Defence Colony Page 11 of 13