Delhi District Court
State vs Ravi Sharma on 8 September, 2014
IN THE COURT OF MS. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI
Unique Case I.D. No.02402R0096972012
SC No. 178/13 Date of institution : 23.04.2012
FIR No. 01/12 Date of argument : 06.09.2014
PS: M.S. Park Date of judgment : 08.09.2014
U/S 363/366/376 IPC
State Versus Ravi Sharma
S/o Om Prakash Sharma
R/o Village & PS:Kunwar Goan,
District Badaun, UP.
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet is that on 04.01.2012, the complainant (father of the prosecutrix) came to the police station M.S. Park and lodged a missing report about his daughter i.e. prosecutrix wherein the complainant made the following allegations:
(i) The complainant is doing a private job. The prosecutrix aged about 14 years 6 months is studying 10th class in Sarvodaya Kanya Vidayalaya No.1, M.S. Park. On 31.12.2011 at about 9.00 am in the morning she left home and did not return. The complainant tried to search her but SC No.178/13 State v. Ravi Sharma Page 1 of 21 she was not traced out. The complainant gathered that one Sandeep whom he does not know has enticed and kidnapped his daughter.
2. On this complaint, a case u/s 363 IPC was got registered. During investigation, WT messages were sent and efforts were made to trace out the prosecutrix. On 07.01.2012, the prosecutrix and accused Ravi were apprehended. The prosecutrix was got medically examined at GTB Hospital vide MLC No.B-105/12 and sealed exhibits received from the hospital were taken into possession by the police. Accused aged about 24 years was also got medically examined vide MLC No. B-106/12 and his sealed exhibits were taken into possession. On 09.01.2012 the statement of the prosecutrix u/s 164 Cr.P.C was got recorded by the learned MM. The prosecutrix was produced before the Child Welfare Committee. The prosecutrix was handed over to her father. Thereafter section 376 IPC was added in the FIR. The investigation was handed over to SI Beena Thakur on 27.01.2012. The age proof documents were collected from the school of the prosecutrix and her date of birth was found as 26.07.1997. After completion of investigation, chargesheet u/s 363/366/376 IPC was filed against the accused.
SC No.178/13 State v. Ravi Sharma Page 2 of 213. Vide order dated 09.04.2012, Ld. M.M. committed this case to the Court of Sessions and on allocation, it was assigned to this court.
4. Vide order dated 24.04.2013, a charge u/s 363/366 IPC and u/s 376 IPC punishable with two years imprisonment or with fine or both was framed against the accused to which he pleaded not guilty and claimed trial.
5. In support of its case, prosecution has examined fifteen witnesses in all i.e. Ms. Santosh Sharma, Head Mistress, MCD Primary School, MS Park-1st, Shahdara, Delhi as PW1, prosecutrix as PW2, mother of prosecutrix as PW3, Lady Constable Anju as PW4, HC Parsa Ram as PW5, Sh. R.L. Meena, Metropolitan Magistrate as PW6, Ct. Suraj Bhan as PW7, Dr. Sushma, CMO GTB Hospital as PW8, Dr. Ankita, SR, GTB Hospital as PW9, Constable Sandeep as PW10, father of the prosecutrix as PW11, SI Beena as PW12, SI Mool Chand as PW13, Dr. Shipra, SR GTB Hospital as PW14 and Dr. Sushma, CMO, GTB Hospital as PW15.
6. PW2 prosecutrix deposed that her date of birth is 26.07.1997. She deposed that she was studying in 10th class on the date of occurrence. She knew the accused who used to visit at the house of his maternal aunt who SC No.178/13 State v. Ravi Sharma Page 3 of 21 was residing in the same house where the prosecutrix and her family members were residing as tenants. Prosecutrix deposed that during those visits, the prosecutrix and accused started meeting secretly. On 31.12.2011, the prosecutrix left her house without informing her parents as she had called accused to meet her at Anand Vihar ISBT, Delhi and they boarded a bus and reached Badaun, UP. She deposed that accused hired a room in a hotel at Badaun and they stayed in that hotel. On the next day, they solemnised their marriage in a temple and started living as husband and wife. Accused made physical relations with her with her consent. She further deposed that on 06.01.2012, she and the accused reached at GT Road, Delhi and police apprehended them. She also deposed that accused was already married prior to their marriage and she was aware of that fact. She further deposed that police got her medically examined on 07.01.2012 and she has consented for her medical examination in the hospital vide written consent Ex. PW2/A on her MLC. She also deposed that her under garments were seized during her medical examination. She was produced before learned MM where her statement u/s 164 Cr.P.C was got recorded. This witness was cross examined on behalf of accused.
SC No.178/13 State v. Ravi Sharma Page 4 of 217. PW3 mother of the prosecutrix deposed that she has four children and the prosecutrix is the eldest child. She deposed that she does not know the date of birth of prosecutrix. She also deposed that the prosecutrix was found missing on 7th of the month but she does not remember the month and year. She further deposed that thereafter she saw the prosecutrix and the accused and informed the police about them and the police apprehended the prosecutrix and the accused. She further deposed that she informed the police that her daughter was 14 years and 6 months old. This witness was also cross examined on behalf of the accused. During her cross examination, she deposed that she is not the real mother of the prosecutrix as the prosecutrix was born from the first wife of her husband.
8. PW11 father of the prosecutrix deposed that he has four children and the prosecutrix is his eldest daughter. He deposed that the prosecutrix was studying in 10th class in Sarvodaya Kanya Bal Vidyalaya, M.S. Park, Delhi and he does not remember the date of birth of his daughter. He also deposed that his wife expired in 2002 and the prosecutrix was got admitted in the school by his mother. He further deposed that on 31.12.2011, the prosecutrix had gone somewhere but she did not come back. He tried SC No.178/13 State v. Ravi Sharma Page 5 of 21 to trace her but she could not be traced out. He deposed that he lodged a police report Ex. PW11/A regarding missing of his daughter and he mentioned the name of one Sandeep as he had suspicion that he might have taken his daughter by enticing her. He further deposed that his daughter recovered 2-3 days after lodging the report. During his cross examination, he stated that he got married with another lady after 3-4 years of the death of his first wife and at that time his daughter was about 12-13 years of age. He also stated that his mother did not submit any birth certificate issued by MCD authority at the time of admission of the prosecutrix in the school. He also deposed he has a son aged about 6½ years from his second wife. This witness has also proved the copies of complaints dated 15.02.2012 and 31.01.2012 addressed to DCP as Ex. PW11/DA and Ex. PW11/DB.
9. PW5 HC Parsa Ram deposed that on 04.01.2012 he was working as a duty officer and recorded the FIR in the present case. He proved the FIR No. 01/2012 as Ex.PW5/A and endorsement on the rukka as Ex. PW5/B.
10. PW4 Lady constable Anju deposed that on 07.01.2012 she alongwith SI Mool Chand went to GT Road, Sharma Transport, Ram Nagar, Shahdara where prosecutrix SC No.178/13 State v. Ravi Sharma Page 6 of 21 was sitting with accused and they were identified by mother of the prosecutrix. The prosecutrix and the accused were taken to the hospital for medical examination. After medical examination, statement of the prosecutrix was got recorded on 09.01.2012 by learned MM.
11. PW7 Ct. Suraj Bhan deposed that on 07.01.2012 he joined the investigation with SI Mool Chand and in search of accused and the prosecutrix reached at M.S. Park where the secret informer met them and gave the information that the accused and the prosecutrix were sitting at GT Road near Sharma Transport, Ram Nagar, Shahdara and they can be apprehended if raid is conducted. IO informed the father of the prosecutrix on which the mother of the prosecutrix reached there. The prosecutrix was identified by her mother and accused was also apprehended. Both were taken to GTB Hospital for their medical examination and the sealed exhibits were seized vide memo Ex.PW7/A, Ex.PW7/B and Ex.PW7/C. IO prepared the recovery memo Ex.PW3/A and the prosecutrix was handed over to her parents. Accused was arrested vide arrest memo Ex.PW7/D and his personal search was conducted vide memo Ex. PW7/E.
12. PW9 Dr. Ankita, Senior Resident GTB Hospital SC No.178/13 State v. Ravi Sharma Page 7 of 21 deposed that she has seen the emergency sheet of MLC of prosecutrix who was medically examined on9.01.2012 by Dr. Reena Pal, SR who had left the services of the hospital and her present whereabouts are not known. This witness identified the handwriting and signature of Dr. Reena Pal as she has seen her writing and signing during the course of duties and proved the emergency sheet as Ex. PW2/A. PW14 Dr. Shipra, Senior Resident, GTB Hospital deposed that she has seen the back side of continuation sheet of MLC of the prosecutrix who was medically examined by Dr. Reena Pal, SR who had left the services of the hospital and her present whereabouts are not known. This witness identified the handwriting and signature of Dr. Reena Pal as she has seen her writing and signing during the course of duties and proved the MLC as Ex. PW2/A.
13. PW15 Dr. Sushma, CMO, GTB Hospital, Delhi deposed that the prosecutrix was initially examined by Dr. Mohd. Parvez, Junior Resident who had left the services of the hospital and his present whereabouts are not known. This witness has identified the handwriting and signature of Dr. Mohd. Parvez as he has seen him writing and signing during the course of duties. He proved the MLC of the prosecutrix as Ex. PW15/A. SC No.178/13 State v. Ravi Sharma Page 8 of 21
14. PW8 Dr. Sushma, CMO GTB Hospital, Delhi deposed that on 07.01.2012 accused was brought in the hospital for medical examination. He was medically examined by Dr. Parvez, Junior Resident who had been working under him and he identified his handwriting and signature on the MLC of accused and proved the MLC of accused as Ex. PW8/A.
15. PW6 Sh. R.L. Meena, learned Metropolitan Magistrate recorded the statement of the prosecutrix u/s 164 Cr. P.C and proved the same as Ex. PW2/B.
16. PW1 Ms. Santosh Sharma, Head Mistress, MCD Primary School, MS Park-1st, Shahdara, Delhi where the prosecutrix was studying ath relevant time has brought the record regarding the date of birth of the prosecutrix. She deposed that as per the school record, the date of birth of the prosecutrix is 26.07.1997. She proved the certificate issued to the police regarding the date of birth as Ex.PW1/A, copy of admission form as Ex.PW1/B, declaration form filled up by father of the prosecutrix at the time of admission of prosecutrix as Ex.PW1/C and admission and withdrawal register having the date of birth of the prosecutrix as Ex. PW1/D. During cross examination, this witness deposed that at the time of admission of the SC No.178/13 State v. Ravi Sharma Page 9 of 21 prosecutrix in class 3rd, her father did not produce any document pertaining to date of birth of prosecutrix. She further deposed that the date of birth of the prosecutrix was recorded as stated by her father and no supporting document including any affidavit of her father was taken on record. She deposed that as per the rule at the time of admission of a child in the school, birth certificate or affidavit of the parents is taken for ascertaining the date of birth of child. But in this case a declaration form was submitted and on that basis the date of birth of the child was accepted and admission was granted to the prosecutrix in 3rd class.
17. PW12 SI Beena deposed that on 27.1.2012, the investigation of this case was marked to her. She met the prosecutrix and recorded her statement u/s 161 Cr. P.C. She deposed that she also sent exhibits to FSL, Rohini through Ct. Sandeep. She also collected the record pertaining to date of birth certificate of the prosecutrix from her school which are exhibited as Ex.PW1/A to Ex.PW1/D.
18. PW13 SI Mool Chand initial IO of the case deposed that on 04.01.2012 father of the prosecutrix and the prosecutrix came to the police station and lodged the SC No.178/13 State v. Ravi Sharma Page 10 of 21 report Ex. PW11/A and mentioned the name of Sandeep who kidnapped the prosecutrix. He made endorsement Ex.PW13/A and got registered the case. He tried to trace out the prosecutrix but she could not be traced out. He further deposed that on 07.01.2012, the prosecutrix alongwith accused were found at GT Road near Sharma Tempo stand. On receiving secret information, they reached there and mother of the prosecutrix was also called. On the identification of the mother of the prosecutrix, prosecutrix and the accused were apprehended. Both were got medically examined at GTB Hospital. Accused was arrested vide arrest memo Ex.PW7/D and his personal search was conducted vide memo Ex. PW7/E. The statement of the prosecutrix u/s 164 Cr. P.C was got recorded by learned MM. He deposed that the prosecutrix was produced before Child Welfare Committee and she was handed over to her parents. He recorded the statements of the witnesses u/s 161 Cr. P.C and thereafter section 376 IPC was added in the present FIR.
19. PW10 Ct. Sandeep deposed that on 03.02.2012 he took the sealed exhibits of the present case from MHC (M) for depositing at FSL, Rohini for examination. He deposited the exhibits at FSL Rohini and handed over the SC No.178/13 State v. Ravi Sharma Page 11 of 21 copy of RC to MHC (M).
20. After completion of prosecution evidence, statement of accused u/s 313 Cr. P.C was recorded in which accused stated that the prosecutrix was above 18 years of age and she had accompanied him to Badaun as per her own wish as they were in love and wanted to marry with each other. He admitted that they got married on 01.01.2012 in a temple at Badaun and started living as husband and wife. Thereafter he made sexual relationship with the prosecutrix. He further stated that prosecutrix is his wife and they have one child aged about 8 months out of this wedlock. He tendered the original Janampatri (horoscope) Ex.P of the prosecutrix stating that the same was handed over to him by the father of the prosecutrix. He stated that as per the Janampatri, the date of birth of the prosecutrix is 07.02.1994. He stated that he is an illiterate person and he never enticed or kidnapped the prosecutrix. He also stated that his earlier wife had left him more than seven years ago and her father had performed her remarriage with some other person after their settlement in Panchayat and divorce. He further stated that his earlier wife is residing with her subsequent husband as his wife. He also stated that he even does not know the whereabouts of his previous wife. He deposed SC No.178/13 State v. Ravi Sharma Page 12 of 21 that prosecutrix and her family members also knew about his earlier marriage.
21. I have heard arguments addressed by learned Addl. PP for the State and the learned defence counsel and perused the record.
22. The accused is facing trial for the commission of offences u/s 363/366 IPC and u/s 376 IPC punishable with two years imprisonment or with fine or both.
23. In the present case, the prosecutrix in her statement has deposed that she had left her home on 31.12.2011 on her own without any enticement on the part of the accused and thereafter she voluntarily went to Badaun, UP. She has also deposed that the next day, they got married in a temple and thereafter they started residing together as husband and wife. Accused also stated in his statement u/s 313 Cr.P.C that he got married with the prosecutrix and one child has been born out of this wedlock. This is otherwise apparent from the ordersheets dated 01.09.2014 and 06.09.2014 of this case in which the prosecutrix has stated that she and the accused have got married and they are residing together as husband and wife. There is no evidence on record to show that the SC No.178/13 State v. Ravi Sharma Page 13 of 21 accused made physical relations with the prosecutrix before marriage.
24. The case of the prosecution is that the prosecutrix was 14 years and 5 months of age at the relevant time and thus the sexual intercourse between the accused and the prosecutrix even after solemnisation of marriage would constitute offence of rape. It is also submitted that the accused was already a married person on the date of solemnisation of marriage with the prosecutrix and thus the marriage between the prosecutrix and accused is not a legal marriage.
25. The offence of rape has been defined in section 375 IPC. At the relevant time, exception attached to section 375 IPC stipulated that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. Section 376 IPC provides that a person who has sexual intercourse with his own wife, wife being not below twelve years of age, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.
26. Section 376 (1) has provided much lesser punishment for sexual relationship by a husband with his SC No.178/13 State v. Ravi Sharma Page 14 of 21 own wife who is not under twelve years of age even if the wife is below 15 years of age. There is no statutory minimum imprisonment for such an offence. In such cases, the imprisonment can even be for a day.
27. In cases of rape, like any other offence, the onus is always on the prosecution to affirmatively prove all ingredients of the offence. In the present case, the prosecution was required to prove beyond reasonable doubt that the prosecutrix was below 15 years of age at the relevant time. In order to show that the prosecutrix was below 15 years of age, the prosecution has relied on the statement of PW1 Head Mistress, MCD Primary School, M.S. Park-1st, Shahdara, Delhi who in her evidence has deposed that as per the school record, the date of birth of the prosecutrix is 26.7.1997. However this witness, during her cross examination admitted that at the time of admission of the prosecutrix in 3rd class, her father did not produce any document pertaining to the date of birth of the prosecutrix. She also deposed that the date of birth of the prosecutrix was taken on record as stated by her father and no other supporting document including the affidavit of the father of the prosecutrix was taken on record. She further deposed that the prosecutrix was granted admission in 3rd class without their being any further SC No.178/13 State v. Ravi Sharma Page 15 of 21 document showing that she had passed 1st and 2nd standard.
28. In the statement u/s 313 Cr. P.C., the accused has filed the original Janampatri (horoscope) of the prosecutrix wherein the date of birth of prosecutrix is shown as 07.02.1994. He also stated that the horoscope was handed over to him by father of the prosecutrix. He further deposed that even as per this horoscope (Ex.P) at the relevant time, the prosecutrix was about 17 years and 10 months of age.
29. Since the date of birth of prosecutrix was taken as 26.07.1997 without seeing any document regarding her date of birth, the school record cannot be taken as conclusive. Apart from this, during evidence, PW11 father and PW3 mother of the prosecutrix could not tell the date of birth of their daughter. Father of the prosecutrix deposed that his wife (natural mother of the prosecutrix) expired in 2002 and at that time, the prosecutrix was about 12-13 years of age. He also stated that the prosecutrix was got admitted in the school in 3rd class by her mother and no birth certificate issued by any MCD authority was submitted at the time of her admission in the school.
SC No.178/13 State v. Ravi Sharma Page 16 of 2130. PW3 mother of the prosecutrix (second wife of PW11) in her statement dated 5.4.2013 deposed that when she got married with father of the prosecutrix, the prosecutrix was 12-13 years of age and 8 years have passed since her marriage with the father of the prosecutrix.
31. The prosecution has not got conducted the ossification test of the prosecutrix which would have been relevant to determining of the age of the prosecutrix at the relevant time. There is no explanation as to why the ossification test was not got done.
32. Considering the material on record, I am of the opinion, that the prosecution has not been able to establish that the prosecutrix was below 15 years of age at the time of incident.
33. Insofar as the factum of earlier marriage of the accused is concerned, the prosecutrix has deposed that she was aware about the first marriage of the accused. During his statement u/s 313 Cr.P.C, the accused has stated that his first wife got remarried after some settlement and divorce with him. He has also stated that now his first wife is not traceable.
SC No.178/13 State v. Ravi Sharma Page 17 of 2134. Even it is presumed for the sake of argument that there is some issue about the validity of the marriage between the accused and the prosecutrix, the same would be of no consequence for the purpose of present trial.
35. In Sakshi vs. State & Ors. (Crl. Appeal No. 1189/2010 decided on 26.11.2010), the Hon'ble Delhi High Court held that a marriage may be void because of spinda relationship of parties, but sexual intercourse between the parties to such marriage would not constitute offence of rape. Reference can also be made to the provisions of Section 16 of Hindu Marriage Act which provides that the children born out of void marriage are legitimate.
36. In view of above, the accused is liable to be acquitted for the charged offence punishable u/s 376 IPC.
37. As far as offence u/s 363 IPC is concerned, the prosecutrix in her statement has stated that she left her home of her own and went to Badaun, UP with accused and married him of her own wish. Even in her statement u/s 164 Cr. P.C, the prosecution had stated the same thing.
38. Section 361 IPC stipulates that whoever takes SC No.178/13 State v. Ravi Sharma Page 18 of 21 or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of the such guardian, is said to kidnap such minor or person from lawful guardianship. Section 363 IPC provides punishment for kidnapping of minor as defined under section 361 IPC. Section 366 IPC provides higher punishment for the offence of kidnapping, abducting for inducing woman or to compel her for marriage. It stipulates that 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.
39. No material has come on record to show that the accused had induced the prosecutrix to leave her parental home. It is not the case of the prosecution that accused used any force at any point of time.
40. In the judgment reported as Lawrence SC No.178/13 State v. Ravi Sharma Page 19 of 21 Kannandas V. State of Maharashtra [ 983 Crl. L.J. 1819], Hon'ble Bombay High Court after referring to the judgment of Hon'ble Supreme Court in the case of S. Varadarajan V. State of Madras ( AIR 1965 SC 942) held as follows:
''In order to come within the mis-chief of that section the accused must have either taken away the minor girl or must have enticed the minor girl out of the keeping of her lawful guardian without the consent of such guardian. The two expressions ''taking'' and ''enticing'' evidently have two different connotations. But both the expressions call for some positive step having taken by the accused to remove the girl from the lawful guardians. Neither of the sections would have any application if the girl has, of her own accord, come out of the custody or come out of the keeping of her lawful guardians and if it is thereafter that the accused had gone with her to some place.''
41. Similarly, in Madan Lal v. Dr. Jaswant Batra [1994 Crl. L.J 1767], the Hon'ble Delhi High Court observed as follows:
''The most important ingredient of this section is taking or enticing away a minor or a person of unsound mind from keeping of the lawful guardian. Before a person is said to kidnap a minor, there must be some proof of his having done something which led to removal of the minor from the keeping of his/ her guardian.''
42. The evidence that has come on record is only to SC No.178/13 State v. Ravi Sharma Page 20 of 21 the effect that the prosecutrix has left the lawful guardianship of her father of her own. No evidence has come on record to show taking, enticing or allurment on the part of accused. Since there is no evidence on record to show that accused had enticed or took away the prosecutrix from the lawful guardianship, the mandatory requirements of offence punishable under section 363 IPC are not fulfilled. As a consequence, section 366 IPC which is an aggravated form of section 363 IPC is also not attracted.
43. In view of above discussion, it is held that the prosecution has not been able to prove its case. Thus, the accused is acquitted for the charged offences u/s 363/366/376 IPC.
44. Files be consigned to record room after necessary compliance.
Announced in the open court on 08.09.2014 (Sarita Birbal) Additional Sessions Judge, (SFTC), Karkardooma Courts, Delhi SC No.178/13 State v. Ravi Sharma Page 21 of 21