Delhi District Court
State vs . Girish Shankar Sahu on 12 September, 2011
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL
JUDGE NDPS PATIALA HOUSE COURTS : NEW DELHI
Date of Institution : 15.01.2011
Judgment reserved on :09.09.2011
Date of pronouncement : 12.09.2011
SC No. N 3/11
ID No. 02403R0003752011
FIR No. 115/10
PS Parliament Street
u/.s 363/366/376 IPC
State Vs. Girish Shankar Sahu
S/O Padam Lochan Sahu
R/o Naya Garh, Orisa
JUDGMENT
1. The charge sheet in the present case has been filed against the accused u/s 363,366 & 376 IPC. As per the allegations made in the charge sheet, on 19.7.2010 one Smt.Seema Jagdhane came to the police station Parliament Street and lodged a missing report pertaining to her daughter Prerna. FIR No.115/10 u/s 363 IPS was registered on basis of the same and on 22.10.2010 the accused and the girl Prerna were recovered from Gurudwara Bangala Sahib and after the medical examination of the girl, section 366 and 376 were 1 added as the girl was found to be a minor. She was also produced before a Ld. Metropolitan Magistrate and her statement u/s 164 CrPC was got recorded.
2. According to the statement of the prosecutrix recorded before the Ld. M.M. u/s 164 Cr.P.C., the prosecutrix had met the accused at Delhi Railway Station for the first time on 13/7/2010. As per the statement of the prosecutrix she along with her mother had come from Maharashtra to Delhi on 11/6/2010 and had taken refuge in Bangla Sahib Gurdwara. The prosecutrix had stated before the Ld. M.M. that on 13/7/2010 her mother gave her beatings and scolded her and therefore she left the Gurdwara and went to Delhi Railway Station where she met the accused. She further stated that the accused repeatedly asked her as to why she was standing alone at the railway station and when she told him that she was angry with her mother, he induced her with his sweet talk to accompany him. The prosecutrix further stated that thereafter she accompanied the accused to Rohtak to his sister's place and stayed there with his sister and brotherin law for 45 days. The prosecutrix also stated that thereafter she told the accused that in case he does not marry her, her 2 mother would take her away. According to the prosecutrix, the accused then married her and also thereafter had sexual relations with her.
3. Based on the medical examination of the prosecutrix and her statement u/s 164 CrPC the present charge sheet was filed before the court of ld.MM who committed this case after due compliance of section 207 CrPC.
4. At the stage of arguments on charge, it came to the notice of this court that as per the date of birth documents verified by the IO from the school of the prosecutrix her date of birth is 18.4.1994 and as such she was 16 & 1/2 years at the date of incident. Taking into account that the prosecutrix was above 16 years of age on the date of incident and there was no allegation by the prosecutrix that she was forced to have sexual relations with the accused, no material was found on record to frame charges against the accused U/s.376 IPC. However as the submission of the Ld. APP for state that the prosecutrix had stated in her statement u/s 164 CrPC that the accused on the date of incident had induced her by his sweet talk to accompany him from the Railway station to Rohtak, this 3 court framed charges against this accused for the offence punishable u/s 363 and 366(A)IPC .
5. The prosecution in order to prove the aforementioned charges has examined 13 witnesses in all. Smt.Seema Mother of the prosecutrix, the complainant has been examined as Pw8 and she in her evidence has proved the complaint given by her to police Ex.Pw8/A.The medical reports of the accused and prosecutrix have been proved on record by Pw7 Dr.Gaurav Aggarwal .
6. Pw13 Dr.Ravindar has proved the bone age report of the prosecutrix as Ex.Pw13/A according to which it has been opined that the bone age of the prosecutrix was 1517 years as on 22/10/2010. Pw12 ASI Seema has placed on record the birth certificate and other documents to show the date of birth of prosecutrix as 18.4.1994. The attested copy of the mark sheet of tenth class issued by Maharashtra Board of Secondary & Higher Secondary Education has been exhibited Ex.Pw12/D.
7. PW10 Ms.Navita Kumari, Ld. Metropolitan Magistrate 4 has proved the statement of the prosecutrix recorded u/s 164 CrPC.
8. PW1prosecutrix, the most important material witness of the prosecution has deposed in detail as to how she met the accused and what was the role played by accused in taking her away from Delhi. In her statement the prosecutrix has deposed that she had come to New Delhi with her mother in July, 2010 and for the first 12 days stayed at Gurdwara Bangla Sahib and that her mother used to beat her frequently as she had a suspicion that prosecutrix was having an affair. According to the prosecutrix on 11.7.2010 at night her mother mercilessly gave her beatings and therefore at about 5:006:00 a.m. on 12.7.2010 she left Bangla Sahib without informing her mother and went to New Delhi railway station. She has further stated that while she was standing at the railway station and thinking what to do next the accused approached her and asked her as to why she was standing alone at the railway station. She has further stated that though accused asked her about her permanent address, she did not reveal the same to him. She has further deposed that then the accused suggested to her that if there is nobody to 5 look after her she can accompany him to his house. She has also stated that though she did not agree to his suggestion at the first instance, when he persisted she thought over and realising that she had nobody to go to, accompanied him to Rohtak where his sister Parvati resides. According to her deposition she stayed there for 56 days and then asked the accused, Girish to marry her. She has further deposed that though accused Girish initially refused to marry her, on her persistent requests he agreed to and therefore on 18/7/2010 both of them got married in a Mandir in the presence of the sister of Girish. She has also clearly stated that before this date she did not have any sexual relationship with Girish and it is only after marriage that they started living as husband and wife. She has further deposed that after about three months the accused Girish told her that they must come to Delhi and inform the police about their marriage. As per her deposition when they came to meet her mother at Gurdwara Bangla Sahib the police officials came and arrested accused Girish. The prosecutrix was duly cross examined on behalf of the accused and in her cross examination she has admitted that she had accompanied the accused of his own will and that the accused never forced her to have any sexual relationship 6 with him.
9. After the entire aforementioned evidence was led on behalf of the prosecution the statement of the accused was recorded by this court wherein he has stated that he has been falsely implicated in this case. According to the statement given by him he had offered the prosecutrix to accompany him because he was apprehensive that in case he left the prosecutrix at the railway station she would commit suicide. He has stated that he had asked the prosecutrix to inform him about her native address but that she refused to do so. He has also stated that he asked the prosecutrix to return to her mother but she refused to do so. He has further stated that is is only on the insistence of the prosecutrix that he married her and that it was on his suggestion that both of them returned to Delhi to inform the mother of the prosecutrix about their marriage.
10. Since the accused did not wish to lead any defence evidence the case was then fixed for final argument.
11. Both the Ld.APP for State and the Ld. Counsel 7 Sh. Chander Prakash, amicus curie, have made their submissions.
12. At the outset it is relevant to note that it is not a disputed fact that the age of the prosecutrix was more than 16 years as on the date of incident. No doubt the bone xray report of the prosecutrix indicated that she could have been th between 1517 years as on the date of the incident, the 10 class certificate produced on record by the prosecution has clearly proved that she was more than 16 years of age as on the date of the incident. Despite the fact that the prosecutrix was more than 16 years of age as on the date of the incident and the fact that there is no allegation whatsoever proved on record that she was forced to accompany the accused, Ld. APP has submitted that she being less than 18 years of age should be deemed to have been induced by the accused to accompany him. She has contended that the prosecutrix in her statement u/s 164 Cr.P.C. and in her examination in chief before this court has stated that it was the accused who insisted that she must accompany him. She has submitted that the accused therefore must be held guilty for the offence punishable u/s 363 IPC. In support of her contention she has 8 relied upon a judgment of the Hon'ble Supreme Court pronounced in the case reported as Prakash vs. State of Haryana, AIR 2004 SC 227, wherein the Hon'ble Supreme Court has observed that on a plain reading of the section 363 IPC the consent of the minor who is taken or enticed is wholly immaterial and that it is only the guardian's consent which takes the case out of its purview. It has been further observed by the Hon'ble Supreme court that it is not necessary that the taking or enticing must be shown to have been by means of force or fraud and persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section.
13. On the other hand Ld. Defence counsel has contended that the deposition of the prosecutrix has made it clear that there was no offence whatsoever committed by the accused in as much as he neither forced the prosecutrix to accompany him nor did he have any sexual relationship with her without her consent.
14. I have given careful consideration to the submissions 9 made by both the Ld. counsels. I have also gone through the judgment relied upon by the Ld. APP for the state. In the said case the facts before the Hon'ble Supreme Court were that a 5 1/2 years old young child girl was the victim and the accused persons were charged with the offence of kidnapping and attempting to rape her. The grandmother of the victim had deposed in detail as to how the victim was playing outside her house and after a while noticing her absence the grand mother started searching her and upon hearing her cries emanating from the house of the accused persons, found the victim naked and one of the accused lying on top of her. Despite such evidence it was being contended on behalf of the accused persons that there was no evidence that the accused had taken the victim by exerting any force on her and that since the child was playing outside her home they cannot be charged with taking away the child away from the lawful guardianship of her parents. It is in these facts that the Hon'ble Supreme Court has held that it is not necessary that the taking or enticing must be shown to have been by means of force or fraud and persuasion by the accused which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract 10 section 361 IPC which defines kidnapping. In the very same judgment the Hon'ble Supreme Court has noted its own observations given in another case reported as Thakor Lal D. Yadgdama Vs. State of Gujarat AIR 1973 SC 2313. In the said judgment it has been clearly held by the Hon'ble Supreme Court that the statutory language of section 361 IPC suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party then the latter cannot be considered to have committed the offence as defined in section 361 IPC. Now in the present case the deposition of the prosecutrix makes it clear that she had left the guardianship of her mother only because of the ill treatment meted out to her by her mother and not because of any inducement whatsoever made by the accused. Thus the provision of section 361 IPC which define kidnapping are not at all attracted in the present case. No doubt in her statement given u/s 164 Cr.P.C. to the Ld. M.M. the prosecutrix had stated that she was induced by the sweet talk of the accused to accompany him to Rohtak, in her cross examination before this court she has clearly admitted that infact accused Girish Shankar Sahu had told her that if she wants to go her native place he will arrange for a 11 ticket. She has also deposed that she did not tell him the address of his native place because she did not want to go back there as her mother would have taken her away. The fact that the relationship between the prosecutrix and her mother was strained, was even visible in the court proceedings. Admittedly presently prosecutrix is not staying with her mother at Delhi but is staying with her maternal grand father in Maharashtra. From the deposition of the prosecutrix it is also clear that the accused had not acted with any malafide intention in taking the prosecutrix to Rohtak. The prosecutrix has clearly admitted that the accused never forced her to have sexual relations with him. She is also stated that it was she who insisted that accused should marry her for she was apprehensive that her mother would otherwise take her away. It is also to be appreciated that once the prosecutrix and the accused got married, it is the accused who, as per the deposition of the prosecutrix, told her that they must come back to Delhi to inform her mother of their marriage. Thus taking into account that the age of the prosecutrix was about 16 ½ years on the date of the incident that is above 16 years of age, the fact that she was never induced by the accused to leave the guardianship of her mother, the fact that she was not 12 forced in any manner to have sexual intercourse with the accused or with any third person, the fact that she married the accused of her will and then had sexual relationship with him, the conduct of the accused in bringing the prosecutrix back to Delhi, all go on to establish that the accused did not kidnap the prosecutrix nor did he have any intention of forcibly marrying her or to force or seduce her to have illicit intercourse with himself or any other person.
15. Thus in view of the discussion herein above I am of the considered opinion the prosecution has not been able to prove any charge whatsoever against the accused. The accused therefore stands acquitted of all charges. He be released immediately from judicial custody if not required in any other case.
File be consigned to Record Room.
Announced in open Court on this 12 day of September, 2011 th (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House : New Delhi 13