Delhi District Court
State vs . on 4 October, 2013
1
IN THE COURT OF SH. DHARMESH SHARMA,
ASJ01, NEW DELHI DISTRICT, PATIALA HOUSE
COURTS,NEW DELHI.
ID No. 02403R0083962013
Date of filing of charge sheet : 08.07.2013
Date of framing of charge : 17.07.2012
Date of final arguments : 01.10.2013
Date of judgment : 04.10.2013
SC No. 89/13
FIR NO. 180/13
PS Vasant Vihar
U/s 363/376 IPC & 4 of POCSO Act
In re:
STATE
Vs.
JAY PRAKASH
S/O SH. KEDAR SINGH
R/O H. NO. 10/8, SHANKAR VIHAR,
NEW DELHI.
APPEARANCES
Present : Mr. Mukul Kumar, Ld. APP for the State substituting Mr.
Salim Khan, Ld. regular APP for the State.
Mr. Ravi Qazi, Ld. counsel from DLSA
04.10.2013
JUDGMENT
1. Accused Jai Prakash S/o Sh. Kedar Singh has been arraigned for trial on the allegations that on 28.05.2013 he kidnapped a girl child (the particulars of whom are reflected in the State v. Jay Prakash Page 1 of 13 2 charge sheet and withheld in order to conceal her identity and hereinafter also referred as the prosecutrix) aged about 17 years from the lawful guardian of her parents with the intention to marry her and subject her to sexual intercourse and thereafter for having committed rape upon her.
FACTS
2. The case of the prosecution is that on 29.05.2013, a missing report regarding the girl child/prosecutrix was lodged by her mother (PW2) which is Ex. PW 2/A to the effect that "her daughter about 15 years of age studying in 10 th standard in Sarvodaya Kanya Vidhyalaya Vasant Vihar was missing from the evening after 7:00 p.m on 28.05.2013". On the said complaint, rukka Ex. PW 6/A was recorded and the present FIR Ex. PW 3/A was registered on 29.05.2013 at 00:05 hours.
3. It is the case of the prosecution that efforts were made to locate the girl child/ prosecutrix and the girl child was recovered from Village Shakarpur, Muradabad, UP from the custody of the present accused; that the girl child and the accused were brought to Delhi and both were subjected to medical examination. During further investigation, prosecutrix was produced before the Ld. MM, New Delhi and her statement u/s 164 Cr.P.C was recorded on 31.05.2013 which is Ex. PW 1/B in which the prosecutrix revealed that "she had gone with accused who was her boy friend and they State v. Jay Prakash Page 2 of 13 3 got married in the village and that she wanted to reside along with her in laws besides her parents".
4. That the investigation further revealed that the age of the girl child was 17 years and 11 months at the time of incident. The girl child was produced before Social Welfare Officer from Prayas for counselling on 31.05.2013. After recording the testimony of other witnesses, the present charge sheet was filed against the accused.
CHARGE
5. Needless to state that the accused was charged u/s 363 r/w Section 366 of IPC for kidnapping the girl child with a view to marry her and subject her to sexual intercourse. Further, the accused was charged u/s 376 of IPC r/w section 4 of the Protection of Children from Sexual Offences Act to which accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
6. Prosecution in order to prove its case examined seven witnesses. The main witnesses for the prosecution were of course the girl child / prosecutrix who was examined as PW1 , her mother was examined as PW2 and I shall dwell on their evidence later on in this judgment.
7. PW3 was ASI Kapil Singh who was Duty Officer at PS Vasant Vihar, New Delhi who in the intervening night of 28th / 29th State v. Jay Prakash Page 3 of 13 4 May, 2013 recorded the present FIR which is Ex. PW 3/A and put his endorsement on the rukka Ex. PW 3/B. PW5 was another Constable Praveen who took the accused for his medical examination at AIIMS.
8. PW4 was Mahinder Singh, Head Teacher from Govt. Prathamik Vidhalaya Village Shakarpur, District Sambhal, UP who testified that the date of birth of the accused Jay Prakash as per school record is 10.07.1990.
9. PW7 was Gurvinder Singh, Teacher from Sarvodya Co Ed. Vidhayala Vasant Viahr, New Delhi who produced the office record in regard to admission of the girl child and testified that the date of birth of the girl child in their office record is 28.06.1995 and proved the photocopy of the relevant page of admission Ex. PW 7/A.
10. Lastly, the Investigation Officer PW6 was W/SI Asha who conducted the investigation of this case and filed the charge sheet. It is pertinent to mention that formal examination of the four doctors/medical officers who medically examined the accused and the girl child respectively were dispensed with and MLC of the accused on his potency was marked Ex. A1 while the MLC of the prosecutrix was marked Ex. PW1/A. Further, formal examination of Ld. Judge who recorded the statement u/s 164 Cr.P.C was also dispensed with since the contents thereof were not disputed by the State v. Jay Prakash Page 4 of 13 5 defence.
STATEMENT OF ACCUSED PERSONS
11. On the close of the prosecution evidence, accused was examined in terms of Section 313 of Cr.PC and on putting the incriminating evidence appearing against him, accused denied the case of the prosecution. Although the accused stated that the prosecutrix / girl child merely accompanied him to his village in Muradabad on her own accord and they got married in a temple but he denied that he had sexual intercourse with her in the intervening night of 28/29th May, 2013. Accused elected not to lead any evidence in his defence.
ARGUMENTS
12. I have heard Ld. APP for the State and Ld. Counsel for the accused. I have also perused the relevant record of the case. PROPOSITION OF LAW
13. Before we proceed to appreciate the evidence led by the prosecution on the record, it would be expedient to point out that the offence of kidnapping is defined u/s 361 of IPC that contemplates taking or enticing away any minor girl under 18 years of age out of the keeping of the lawful guardians which is made punishable u/s 363 of IPC. Section 366 of IPC is an offence about kidnapping of a woman with the intention that the woman shall be compelled or likely to be compelled to marry to any person against State v. Jay Prakash Page 5 of 13 6 her will or forced or seduced to illicit sexual intercourse.
14. Now Section 3 of POCSO Act is quite a stringent and exhaustive provision that provides as under:
3. Penetrative sexual assault A person is said to commit "penetrative sexual assault" if
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d)he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
15. It may be seen that the word "assault" is not defined under the POCSO Act but it is defined u/s 351 of IPC to mean "any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person" .
16. Offence of "criminal force" is defined u/s 350 of IPC to mean "intentional use of force to any person, without that person's consent, in order to committing of any offence, or intending by the use of such force to cause or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance". Thus, bare State v. Jay Prakash Page 6 of 13 7 perusal of the said provision provides that sexual intercourse with a child is punishable u/s 4 of the POCSO Act provided it is in the nature of an assault.
APPRECIATION OF EVIDENCE
17. Coming to the instant case, before I proceed to appreciate the testimony of PW1 girl child it may be stated that undoubtedly the prosecution is able to prove that date of birth of the girl child is 28.06.1995 and she was below 18 years of age or to be precised 17 years or 11 months of age at the time of incident.
18. Now, testimony of PW1 reveals that she was acquainted with the accused for few days prior to the incident who was residing in the neighbourhood and she conceded that they were quite friendly and used to speak to one another. In her statement before the Ld. MM u/s 164 Cr.PC recorded on 31.05.2013, which is Ex. PW 1/B, she stated that the accused was her boy friend and she left home at 11am on 28/05/2013 and went along with accused to his native place where they got married and she stated that she wanted to reside in her 'Sasural' and also with her parents. Even before the Social worker of NGO Prayas she exhibited her love and affection for the accused and appeared to have stated that she wanted to reside with the accused.
19. However, in her testimony before the Court she did a volte face and testified that accused met her in the evening on State v. Jay Prakash Page 7 of 13 8 28.05.2013 and proposed to take her around and show her some places and then took her to his house in a village somewhere in Muradabad; that accused promised to marry her and promised to keep her always happy but he did not marry her and during the night when they stayed in the village accused had sexual intercourse with her without her consent and then they were apprehended by the police.
20. During the recording of her testimony Ld. APP was allowed to put a leading question that accused had applied Sindhoor on her forehead, gave Chura (ceremonial bangles) and a new wedding suit which she accepted as correct stating however that no marriage was performed. Ld. APP in his zeal to strengthen the prosecution case, further elected to cross examine the witness on the ground that she was resiling from her previous statement given to the police. In the cross examination of PW1, ld APP put a suggestion to her that she had been enticed away by the accused who had also sexual intercourse with her at the house of his brother at Mahipalpur in the intervening night of 28/29th May 2013 which was admitted as correct by her. Needless to state, PW1 was subjected to a searching cross examination by the ld legal Aid counsel.
21. In so far as the offence of kidnapping is concerned, there is no iota of evidence that accused enticed or took away the State v. Jay Prakash Page 8 of 13 9 prosecutrix from her lawful guardian. Testimony of PW1 girl child is that she left the house of her own and accompanied with the accused to his native place. Reference can be had to decision in Varadarajan v. State of Madras, 1965 (2) CRI. L. J. 33 (Vol. 71, C. N.
7), wherein the law on kidnapping was explained in somewhat similar contextual circumstances 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. (Para 7) There is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it cannot be laid down that in no conceivable circumstances can the two be regarded as meaning the same tiling 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. 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. (Para 8)
22. Thus on a conspectus of testimony of PW1 visavis the entire material on the judicial record, I find that her testimony that accused took her away or enticed her can not be believed. She was a girl at the verge of majority and she knew what she was doing and merely for the fact that she accompanied the accused, does not bring the case of the prosecution within the four corners of section State v. Jay Prakash Page 9 of 13 10 363 I.P.C. Similarly, the case under section 366 of I.P.C is also not made out since there is no evidence that the girl child was compelled to marry with someone against her will or forced or seduced to illicit sexual intercourse.
23. In so far as her testimony that the accused had sexual intercourse with her in the intervening night on 28/29th May 2013 or on the following day in the intervening night of 29/30th May 2013 that too does not inspire confidence. First thing first, the girl child was at the verge of maturity at the time of incident and had attained majority as on the date of recording of her testimony in the Court. Her demeanour in the Court was observed to the effect that she was not responding to the questions spontaneously, murmuring before giving a delayed replies that to after lot of thinking. PW1 did not give any explanation as to why in her statement u/s 164 of Cr.PC she did not state that she had been subjected to sexual intercourse by the accused nor she stated such facts to the social worker of NGO Prayas which proceedings are on judicial record and marked C1 while passing this judgment.
24. Further, even at the time of her medical examination on 30.05.2013, she revealed to the doctor that she had left her house at about 11:00 am on 28.05.2013 on her own will and married with accused Jay Prakash on 29.05.2013 at his village which facts are recorded in the MLC Ex. PW 1/A. It is further on the judicial record State v. Jay Prakash Page 10 of 13 11 that the prosecutrix refused her internal examination without assigning any reasons as reflected in the report of the Senior Gynecologist Ex. A2.
25. In the face of not an iota of word in the disclosure statement Ex. PW 6/E of the accused on the point of having sexual intercourse with the prosecutrix / girl child, it really becomes doubtful if the version of the girl child that accused had sexual intercourse with her could be accepted. Although the disclosure is inadmissible in evidence, it could atleast be seen that he did not admit having sexual intercourse with her. At the cost of repetition, such facts were not disclosed by her to the doctor on her medical examination nor disclosed in her statement u/s 164 Cr.P.C nor to the Social worker of NGO Prayas. There is no corroboration of her fractured version from any where that they stayed overnight at Mahipalpur. If her version of sexual intercourse on 29th May 2013 is believed, it was consequent to her marriage or ceremonies akin to a marriage and no assault was committed in the process.
26. It is most pertinent to indicate that PW1 girl child in her testimony accepted the suggestion by the defence that they belonged to Thakur Caste while the accused was not belonging to her Caste. The accused incidently belongs to Balmiki caste. PW1 accepted the suggestion that her parents were opposed to her marriage with the accused due to caste factor. The said facts and State v. Jay Prakash Page 11 of 13 12 circumstances demonstrate without reasonable doubt that the during the interregnum the prosecutrix had been coached or tutored by her parents to sacrifice her feelings, betray her love for the accused, and instead honour their social status. It strikes to common sense and logic that at the behest of her parents she testified falsely against the accused.
27. Needless to point out that the initial burden to prove its case was upon the prosecution and it must have shown beyond reasonable doubt that accused has committed an offence. It is only when such initial burden is discharged that recourse could be had to section 30 of the POCSO Act and accused may be called upon to rebut the presumption by proving his innocence beyond reasonable doubt. In the case in hand, the version of the incident in her testimony of PW1 are full of twisted facts, blatant lies besides grossly contradictory and it does not inspire confidence to hold the accused guilty, who is village boy hardly 20 years of age. FINAL DECISION
28. In the said view of the discussion, I find that the prosecution fails to prove the guilt of accused Jay Prakash beyond reasonable doubt. Accused Jay Prakash is hereby acquitted of all the charges in the present case. His Personal Bonds is cancelled and Sureties is discharged.
State v. Jay Prakash Page 12 of 13 13
29. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (DHARMESH SHARMA)
TODAY i.e 04.10.2013 ASJ01/PHC/NEW DELHI
04.10.2013
State v. Jay Prakash Page 13 of 13
14
SC No. 89/13
STATE Vs. JAY PRAKASH
04.10.2013
Present : Mr. Mukul Kumar, Ld. APP for the State substituting Mr.
Salim Khan, Ld. regular APP for the State.
Mr. Ravi Qazi, Ld. counsel from DLSA.
Vide separate judgment of even date, I find that the prosecution fails to prove the guilt of accused Jay Prakash beyond reasonable doubt. Accused Jay Prakash is hereby acquitted of all the charges in the present case. His Personal Bonds is cancelled and Sureties is discharged.
File be consigned to Record Room.
(DHARMESH SHARMA) ASJ01/PHC/NEW DELHI 04.10.2013 State v. Jay Prakash Page 14 of 13