Delhi District Court
State vs Arjun S/O. Sh. Ram Ratan on 29 October, 2014
IN THE COURT OF SANJAY GARG : ADDITIONAL SESSIONS
JUDGE01 (EAST) :KARKARDOOMA COURTS : DELHI
SC No. 46/13
FIR No. 358/12
PS New Ashok Nagar
Under Section : 363/366/376 IPC and u/s. section 4 of POCSO Act.
State Versus Arjun S/o. Sh. Ram Ratan
Mahesh Gujjar Ka Makan,
Village Dallupura, Delhi96
Permanent Address :
Vill. Pawasa, Tehseel Sambhal,
Distt. Sambhal, UP.
Date of Institution of Case : 07.03.13
Date on which Judgment Reserved : 15.10.14
Date on which Judgment Delivered : 29.10.14
J U D G M E N T :
1. The brief facts of the case are that a complaint was received in PS New Ashok Nagar on 14.11.12, made by Charan Singh (PW2) mentioning that on 1.11.12 at 6.15 a.m his daughter (hereinafter mentioned as prosecutrix), aged 15 years is working as a maid in Vasundhara Enclave Society. She had gone for her work but till date has not returned back. He has doubt that someone has kidnapped his daughter by giving her enticement. On this complaint SI Kulbir Rana (PW9) prepared rukka and got the FIR registered. He tried to trace prosecutrix but failed. On 1.12.12 PW2 came to PS and gave information that prosecutrix is at Village Pawasa, Tehseel Sambhal with accused. On 2.12.12 HC Satyaveer Singh (PW8) alongwith PW2 and his wife Smt. Rajesh Devi (PW7) reached Village Pawasa, Tehseel Sambhal and recovered prosecutrix from the house of accused.
FIR No. 358/12 page 1 of page 12 Accused was also apprehended. Prosecutrix and accused were brought to PS. At that time prosecutrix disclosed her age as 19 years and accordingly accused was let off by IO PW9. Prosecutrix was medically examined and her statement u/s. 164 CrPC was got recorded. On 8.12.12 age of prosecutrix was got verified and was found to be 1516 years. Accordingly, accused was arrested and his medical examination was got done. Exhibits were sent to FSL. After investigation police filed chargesheet against the accused u/s. 363/366/376 IPC and u/s. section 4 of POCSO Act.
2. Charge u/s. 363/366/376 IPC and alternative charge under section 4 of POCSO Act was given to accused, to which he pleaded not guilty and claimed trial.
3. To prove its case prosecution has examined nine witnesses. PW1 Smt. Asha Chauhan, Teacher Incharge, Primary School produced admission withdrawal register and certificate issued by her regarding admission and date of birth of prosecutrix as Ex.PW1/A to Ex.PW1/C. PW2 Sh. Charan Singh is the complainant, he proved his complaint Ex.PW2/A. PW3 Ct. Mohit had taken the exhibits to FSL and had deposited the same there. PW4 ASI Joginder Singh was duty officer, he proved FIR Ex.PW4/A and endorsement on rukka Ex.PW4/B. PW5 Ct. Yoginder Kumar had joined the investigation with IO when accused was arrested. He proved arrest memo and personal search memo of accused as Ex.PW5/A and Ex.PW5/B, seizure memo Ex.PW5/C vide which exhibits given by doctor after medical examination of accused were seized by IO and seizure memo Ex.PW5/D regarding age proof of prosecutrix. PW6 is the prosecutrix, she admitted her signatures on her statement Ex.PW6/A recorded by Ld. M.M u/s. 164 CrPC. PW7 Smt. Rajesh Devi is the mother of the FIR No. 358/12 page 2 of page 12 prosecutrix. PW8 HC Satyaveer Singh had gone to Village Pawasa, Tehsil Sambhal on 2.12.12, from there he has recovered prosecutrix from the house of accused and had apprehended accused. PW9 SI Kulbir Rana is the IO, he proved rukka Ex.PW9/A, seizure memo Ex.PW9/B vide which exhibits given by doctor after medical examination of prosecutrix were seized.
4. Accused admitted his MLC and potency report as Ex.PA1 and Ex.PA2. He also admitted MLC of the prosecutrix as Ex.PA3. His statement u/s. 294 CrPC was recorded to this effect.
5. On the basis of the incriminating evidence against the accused , his statement was recorded u/s. 313 CrPC wherein he denied the entire prosecution evidence against him and took the defence that he is quite innocent and have been falsely implicated in this case. Parents of victim wanted to extort money from him and due to this reason this false complaint was made. Prosecutrix was aged 19 years and same age given by her in her statement recorded by Ld. M.M u/s. 164 CrPC. He opted to lead DE but did not examine any witness.
6. Heard arguments of Sh. Rajat Kalra, Ld. Addl. PP for State and Sh. Suraj Prakash Sharma, Ld. Defence counsel for accused. Perused the case file.
7. The Ld. APP submitted that prosecutrix was minor, her statement is consistent that accused had kidnapped her after giving her enticement and thereafter had raped her. It is stated that from the school record of prosecutrix it stands established that she was less than 16 years of age at the time of this incident and her MLC supports her statement that she was raped by accused. It is stated that prosecution has been able to prove its case beyond reasonable doubt against the accused.
FIR No. 358/12 page 3 of page 12
8. Sh. Suraj Prakash Sharma, Ld. counsel for the accused submitted that name of the accused is not mentioned in the FIR and prosecutrix in her statement u/s. 164 CrPC has not supported the prosecution case. It is submitted that statement of prosecutrix is full of contradictions and does not inspire confidence. It is argued that prosecutrix in her statement u/s. 164 CrPC has given her age as 19 years. It is further submitted that PW1 has proved age of girl having different name than to prosecutrix and accordingly prosecution has failed to prove the date of birth of prosecutrix. It is stated that FSL report is not supporting the prosecution.
9. As per prosecutrix (PW6) accused was working in an electronics shop in front of her house and used to visit their house. One day prior to the incident accused met her on the way and asked her to accompany him for outing but she refused. Accused insisted and gave a ladoo to her to eat. After eating it she was not fully conscious, lost her control and returned to her house. Next day on 01.11.12 accused met her at the same place and gave her a chocolate to eat. She ate it and accused took me to a park. Accused told her that his brother is ill and he is going to his village. Accused asked her to accompany him. She refused but accused insisted and took her to the house of his chachi (aunt) nearby. Next day accused told her that his brother has died and took her to Village Pawasa, near Sambhal, UP. She remained there for a month. On 02.12.12 her parents alongwith police came there, accused was apprehended and they were brought to Delhi and at that time she was not conscious. Police took her to Hospital and there her medical examination was done. She was produced before Judge Sahib and her statement was recorded. She was crossexamined by Ld. APP after declaring her hostile. In her FIR No. 358/12 page 4 of page 12 crossexamination she admitted that accused had put Sindoor on her head in the house of Chachi (Aunt). On 02.11.12 accused took her to his village in U.P and after 45 days he did sex with her at night. During cross by accused she stated that accused was known to her for the last 23 days ; her mother had given Rs. 500/ to accused 23 days prior to the incident ; accused had visited her house 23 times : from her house she had gone to ISBT Anand Vihar with accused in an Auto ; there is one room in the house of accused and his parents, brothers and sisters were staying with them in the same room.
10. Ex.PW6/A is the statement of prosecutrix recorded by Ld. M.M Sh. Naveen Kumar Kashyap u/s. 164 CrPC. Here she has stated that accused was known to her for the last 23 months. She initiated friendly talks with him. Accused asked her that whether she would be his life partner. They got married on 01.11.12 without knowledge of their parents. Accused had put Sindoor in her head in the house of his Chachi (Aunt) and tied mangalsutra around her neck. On 02.11.12 they went to his Village at UP. After 45 days they did sex at night with her consent and 34 days they again did sex with her consent.
11. PW2 Charan Singh is the complainant and he reiterated the same facts as mentioned by him in his complaint Ex.PW2/A. As per him later on he came to know that one boy namely Arjun has taken away his daughter i.e prosecutrix and she was recovered from Village Pawasa, Tehsil Sambhal in his presence. Same is the statement of PW7 Smt. Rajesh Devi and PW8 HC Satyaveer Singh, who had recovered prosecutrix on 02.12.12 from the house of accused at Village Pawasa, Tehsil Sambhal, UP. Accordingly, recovery of prosecutrix on 02.12.12 from the house of accused stands established.
12. The statement of prosecutrix that accused forcibly took FIR No. 358/12 page 5 of page 12 her on 01.11.12 to the house of his Chachi(Aunt) and thereafter took her to Village Pawasa, near Tehsil Sambhal, UP is not inspiring confidence and cannot be believed. The story given by prosecutrix, of giving her stupefying ladoo by accused on a day prior to 01.11.12 is also not found convincing. It is unbelievable that accused kept prosecutrix for a month at Village Pawasa, Tehsil Sambhal without her will and during this period she neither find any opportunity to run away nor to complain anyone there nor to call any of her family members. Moreover, prosecutrix in her statement u/s. 164 CrPC has stated that accused was known to her for the last 23 months and she initiated friendly talks with him. The story as narrated by prosecutrix before this Court of giving her a ladoo and chocolate next day by accused and then taking her to the house of her Chachi (Aunt) are conspicuous by absence from the statement of prosecutrix Ex.PW6/A recorded by Ld. M.M. These circumstances prove that prosecutrix had a liking for the accused and she had gone with him willingly and had stayed there at Village Pawasa in the house of the accused willingly.
13. Age of the prosecutrix is another material consideration to be looked into. Complainant (PW2) has given her age as 15 years. Prosecutrix while deposing as PW6 has also given her age as 15 years. The Ld. counsel for the accused has contended that prosecution has failed to prove age of the prosecutrix as name of the student is different than of prosecutrix in the school records produced by PW1. It is further submitted that in her statement recorded u/s. 164 CrPC prosecutrix has given her age as 19 years. Ex.PW1/A is the admission/withdrawal register regarding daughter of complainant PW2. Here date of birth of prosecutrix is mentioned as 06.02.97. Name of daughter of complainant Charan Singh mentioned in the FIR No. 358/12 page 6 of page 12 admission/withdrawal register is different from the name of prosecutrix which has come in the FIR. PW1 in his crossexamination has clarified that correct name of prosecutrix is mentioned as alias to the name in school records. I find no reason to disbelieve this school record. Accordingly, date of birth of prosecutrix is established as 06.02.97. The date of incident is 01.11.12. Accordingly, prosecutrix was around 15 years 9 months of age at the time of this incident.
14. Accused is also charged u/s. 4 POCSO. The POCSO Act though received assent of President on 19.6.12 but it came into force w.e.f. 14.11.12 vide S.O. 2705 (E), dated 9th November, 2012, published in the Gazette of India, Extra, Pt. II, Sec. 3 (ii), No. 2250, dated 9th November, 2012.
15. In the present case prosecutrix went missing from her house on 1.11.12. During her crossexamination by Ld. APP prosecutrix has admitted that after 45 days of her taking to his village accused had sex with her at night. In her statement recorded u/s. 164 CrPC i.e Ex.PW6/A prosecutrix has stated that then after 34 days accused did sex with her with her full consent. For the sake of arguments even if statement of prosecutrix is admitted to be true, both the incidents of sexual intercourse as told by her took place before 14.11.12 when the POCSO Act came into force. It is relevant to mention here that it was by POCSO Act that child was defined below age of 18 years and like IPC section 375 sixthly where consensual sex of a girl is more than 16 years of age is excluded from the definition of rape, no such exception was left in this Act upto 18 years. Hence, the allegations has to be considered under IPC prevalent at that time (as the same was amended subsequently w.e.f. 3.2.13).
16. Coming to the credibility of statement of prosecutrix, Ld. FIR No. 358/12 page 7 of page 12 counsel for the accused has urged that statement of prosecutrix is full of contradictions, even in her MLC in history it is mentioned that sexual assault by unknown person and has not given the name of the accused. Prosecutrix during her crossexamination by Ld. APP has admitted that on 2.11.12 accused took her to his village at UP and after 45 45 days he had sex with her at night. This fact is also stated by prosecutrix in her statement Ex.PW6/A recorded u/s. 164 CrPC by Ld. M.M. In MLC doctor has mentioned hymen ruptured, this also supports statement of prosecutrix having been subjected to sexual intercourse. The statement of prosecutrix has been disbelieved regarding the allegation that she was forcibly taken by accused with him but as already discussed, recovery of prosecutrix from house of accused Village Pawasa stands proved, the statement of prosecutrix having been subjected to sexual intercourse by accused is found consistent and believable. The point to be pondered is that if part statement of prosecutrix has been disbelieved can the Court rely upon remaining part of her testimony. The law is settled that if remaining portion of testimony of a witness is found trustworthy then the Court should uphold the prosecution case to that extent. Reliance is placed upon 2009(16) SCC 2069 Janardhan Singh Vs. State of Bihar where Apex Court has observed that maximum fallacious in uno, falsus in any omnibus is not a sound rule to apply in the condition of this country. Therefore, it is the duty of the court in cases where witness has been found to have given unreliable evidence in regard to certain particulars, to scrutinize the rest of his evidence, with care and caution. If remaining evidence is trustworthy and substratum of the prosecution case, remains intact, then court should uphold the prosecution case to that extent.
FIR No. 358/12 page 8 of page 12
17. As discussed above, from the circumstances discussed above, it stands proved that prosecutrix at her own had gone with accused. The essential ingredient of the offence of kidnapping as defined u/s. 361 IPC are "taking" or "enticing". The word " take" means to cause to, go to, escort , or to get into possession. What is required is that there must be proof of taking. The prosecution has to prove that the accused had played some active part in the girl leaving her lawful guardian's house and taking shelter in his house. The word "
take" implies want of wish and absence of desire of the person taken. The word " entice" involves an idea of inducement by exciting hope or desire in the other. One does not entice another unless the latter attempted to do a thing which she or he would not otherwise do. The act of prosecutrix while leaving her house at her own is not covered under either 'taking' or 'enticing'
18. By summing up the statement of prosecutrix and other evidence led by prosecution, it stands established beyond doubt that prosecutrix being aged 15 years 9 months willingly did sexual intercourse with accused. Same were the facts in a case before our High Court in Rameshwar Giri Vs. State 2014 (211) DLT 508. The relevant observation of the Court in para 15,16 and 18 are as follows :
15. As noted supra, the victim was aged 15 years and 9 months on the date of the offence meaning thereby that she was at the age of discretion; she was studying in the 7th standard and as such it cannot be said that she did not know the consequence of her act. More so, this is not a case where there was any persuasion on the part of the accused which can amount to a 'taking' or 'enticing' the victim as is the language contained in section 361 of the IPC. Version of PW5 is coherent in this regard. She has stated that while she was standing near the public park, the accused invited her to accompany her for sightseeing and she accordingly did so. In these circumstances, it FIR No. 358/12 page 9 of page 12 cannot be said that the accused was guilty of taking the victim out of the keeping of her lawful guardianship; she was admittedly standing at the public park when he invited her to join him for sightseeing. There was no active persuasion on the part of accused; it was an invitation extended by him to the girl which was accepted by her.
16. As held by the Supreme Court in AIR 1965 SC 942 S. Varadarajan Vs. State such an act would not tantamount to 'taking'. The observations of the Apex Court in this context are as under:
"The offence of "kidnapping from lawful guardianship" is defined thus in the first paragraph of s. 361 of the Indian Penal Code.:
"Whoever takes 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 such guardian, is said to kidnap such minor or person from lawful guardianship". 8. It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping.......
.......... 11. It must, however, be borne in mind that there is a distinction between "taking": and allowing a minor to accompany a person. The two expression are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of s. 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 persons. 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 guardian.
FIR No. 358/12 page 10 of page 12
12. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking".
18. This Court thus necessarily draws the conclusion that the victim was a consenting party with the accused. The offence of rape as defined under Section 375 of the IPC (unamended) is not made out as for the purposes of rape to qualify as a minor, the victim should be less than 16 years. As noted supra, the victim was aged 15 years & 9 months on the date of the offence i.e. just about three months short of the age of 16. Being in the age of discretion; this Court is of the view that she was conscious of her act in accompanying the accused and it cannot be said to be an act of force. The accused is entitled to an acquittal for the offence under Section 376 of the IPC. He is accordingly acquitted of the said charge.
19. In view of the aforesaid reasons, it is held that prosecution has failed to prove its case against accused for the offences u/s. 363/366 IPC and section 4 POCSO Act. In the light of the judgment of our High Court in Rameshwar Giri (Supra), it is further held that prosecution has also failed to prove its case for the offence u/s. 376 IPC against the accused. Accused is thereby acquitted from the FIR No. 358/12 page 11 of page 12 offences punishable u/s. 363/366/376 IPC and alternative charge under section 4 of POCSO Act File be consigned to record room.
ANNOUNCED IN OPEN COURT ON 29.10.14 (SANJAY GARG) ADDL. SESSIONS JUDGE(EAST) 01 KARKARDOOMA COURTS :
DELHI FIR No. 358/12 page 12 of page 12