Delhi District Court
Fir No. 597/2013 : State vs Raja @ Chandu : Ps Aman Vihar on 16 April, 2018
FIR No. 597/2013 : State V/s Raja @ Chandu : PS Aman Vihar
IN THE COURT OF AMIT KUMAR : ADDL. SESSIONS JUDGE:
(NORTHWEST)01 : SPECIAL COURT : POCSO, ROHINI DISTRICT
COURTS: DELHI
(Sessions Case No. 128/2014)
State Vs. Raja @ Chandu
FIR No. : 597/2013
U/s : 376/366/363/328 IPC and 04 of POCSO Act
P.S. : Aman Vihar
State Vs. Raja @ Chandu
S/o Sh. Ram Chander
R/o A387, Hari Enclave, Near INM School,
Kirari Suleman Nagar, Delhi.
Date of institution of case : 05.07.2014
Date of arguments : 16.04.2018
Date of pronouncement of judgment : 16.04.2018
J U D G M E N T :
1.Brief facts of the prosecution case are that on 29.11.2013, the complainant who is the father of the victim child came to PS and gave his statement that his daughter S, aged about 17 years and five months is Page 1 of 21 FIR No. 597/2013 : State V/s Raja @ Chandu : PS Aman Vihar missing since yesterday, who was coming to his shop which is at some distance from his residence with breakfast but on the way she went missing and he was trying to search her but could not find her and he has doubt that Chandu @ Raju, his neighbour who used to roam around the victim has kidnapped her. On his statement, the present FIR was registered u/s 363 IPC and the information of missing victim was flashed on wireless and Zipnet. On 06.12.2013, the victim child along with the accused came to PS and handed over photographs to ASI Pradeep and told him that they both got married. The complainant was informed on phone who came to PS and identified his daughter and accused. The date of birth certificate of the victim was obtained from her father. Accordingly to which, her date of birth was 30.06.1996. Since victim was a minor, section 366 IPC was added to the case. Accused was arrested and information of his arrest was given to his father. The victim was taken to SGM hospital where she refused her internal examination. Her statement u/s 164 Cr.P.C. was got recorded where she stated that she is 10th pass and knows accused for last two years. On 28.11.2013, she called accused and went with him for marrying him and Page 2 of 21 FIR No. 597/2013 : State V/s Raja @ Chandu : PS Aman Vihar they got married in a temple at Jammu and thereafter, they established physical relation. She went with the accused of her own and none enticed her and she wants to go with the accused. The victim was sent to Stay Home for girl. On 21.04.2014, one complaint from the office of DCP was received at PS which was handed over to the IO who again interrogated the victim and then she made her statement that accused was following her for last two years and on 28.11.2013 when she went to bring some goods from a shop then accused put a handkerchief on her mouth by which she lost her consciousness and he brought her in a auto to New Delhi Railway Station and he had already booked two tickets for Jammu and took her to house of his maternal aunt and kept her there for 34 days and established physical relation with her. He also threatened her for her life. After 34 days, he brought her to Delhi and at Jammu railway station, he took her to a photo studio to take photograph pretending as that of marriage to save himself from police. On 04.12.2013, they came to PS Aman Vihar as her father had already lodged a police complaint of her missing. IO did not inform her parents and asked her to go with accused on the pretext that courts are Page 3 of 21 FIR No. 597/2013 : State V/s Raja @ Chandu : PS Aman Vihar closed and on 06.12.2013, she was produced in the court and before CWC and after her medical, she went to some home centre and now she wants strict action against accused. The provision of Section 328 IPC and 4 POCSO Act were also added and accused was rearrested and was medically examined and after completion of investigation, this chargesheet was filed.
2. Charges for commission of offence u/s 328/363/366 IPC and 6 of POCSO Act or in the alternate 376(2)(n) IPC were framed against the accused to which accused pleaded not guilty and claimed trial.
3. Prosecution, to prove its case, has examined as many as 13 witnesses. The statement of accused was recorded u/s 313 Cr.P.C.
PW1 is the Ld. M.M. who recorded the statement of the victim u/s 164 Cr.P.C. Ex.PW1/B and gave his certificate Ex.PW1/C. There is no cross examination.
PW2 is the witness from SDMC, Najafgarh Zone who proved on Page 4 of 21 FIR No. 597/2013 : State V/s Raja @ Chandu : PS Aman Vihar record the birth registration certificate of the victim Ex.PW2/A where her date of birth is recorded as 30.06.1996. There is no relevant cross examination.
PW3 is the duty officer who proved on record the FIR Ex.PW3/A on 29.11.2013. There is no material cross examination.
PW4 is the victim herself whose testimony is reproduced herein for the sake of brevity: "I am residing at the abovementioned address with my family consisting of myself, my parents and my two brothers. I am the second born child of my parents. I have completed my 10th class and thereafter I left my studies.
When I was studying in 10 th class, accused Raja used to harass me by doing chedchad with me (ulti sidhi harkat karta tha). He used to threaten me by saying that 'agar tu meri baat nahi manegi aur mujhse baat chit nahi karegi toh tere chhote bhai ko marwa dunga'. I narrated all these facts to my parents and they went to talk to the parents of the accused but the accused did not mend his ways. Due to the acts of accused, I was forced to leave my studies and I joined stitching class near my house. Accused used Page 5 of 21 FIR No. 597/2013 : State V/s Raja @ Chandu : PS Aman Vihar to harass me there and also used to speak ulti sidhi baatein to me. I left stitching classes also due to the said acts of accused.
One day, I was going to the shop of my father and I was having tea and breakfast for my father at that time. On the way, near the house of accused, I saw that accused was standing near one auto rickshaw which was parked on the backside gate of the school. Accused called me from behind and asked me to stop but I avoided him and I went to the shop of my father. After some time when I was returning from the shop of my father, accused again called me and asked me to stop. When I did not pay any heed to him, he pulled me inside the autorickshaw by my hand and when I tried to raise alarm, he put one handkerchief on my nose and thereafter I lost my senses (mera dimag kaam nahi kar raha tha). Accused took the said tempo to the old railway station. When people at the railway station asked from the accused that what has happened with me. Accused told them that I was sick and that he was taking me to Jammu for my medicine. He took me to the house of his maternal aunty (mausi) at Jammu by train. Accused threatened me that if I will raise alarm, he would kill me, my Page 6 of 21 FIR No. 597/2013 : State V/s Raja @ Chandu : PS Aman Vihar younger brother and my father. Accused kept me there for three days and committed rape upon me without my consent and will (mein roti chilati rahi). I was on pain at that time. I requested accused and his mausi to take me back to my parental home but they threatened me to kill. Accused had also brought clothes of his sister for me but I refused to wear the said clothes. On my refusal, accused and his mausi gave severe beatings to me.
The father of accused called mausi (aunt) of accused and informed her that on 29.11.2013 my father had lodged a case against accused and told her to send me and accused back to Delhi. Thereafter mausi of accused got frightened. Accused and his mausi gave beatings to me and forcibly made me to write one letter that they are innocent and I had left my home of my own sweet will with the accused. The accused, his mausi and her daughter forcibly make me to wear clothes of daughter of his mausi.
On 03.12.2013, mausi of accused turned me and accused out of her house in order to save herself from legal consequences. Thereafter I was taken to Jammu Railway Station by the accused. Accused was reluctant to go to Delhi and forced me for marriage photograph. Then accused Page 7 of 21 FIR No. 597/2013 : State V/s Raja @ Chandu : PS Aman Vihar purchased two garlands and got clicked one photograph of marriage with me. Thereafter we board a train and reached Delhi on 04.12.2013. While reaching at old railway station, accused made a call to his father. Father of accused assured him that he had done setting at the PS and asked him to reach PS Aman Vihar. When we reached at PS, IO ASI Pradeep met us. Father of accused was also present at the PS. IO asked father of accused to leave me at the house of their relative for 2 / 3 days as it was a Court holiday due to election. When I requested the police officer to make a call to my father, they threatened me that my father was saying that he will kill me. Accused took me to the house of his uncle (chacha) at Daya Basti. I was kept there till 06.12.2013.
On 06.12.2013, I was brought to PS. Till that time no information was given to my parents regarding my arrival at PS by the IO. My signatures were obtained on some papers by the IO ASI Pradeep. Thereafter I was taken to SGM Hospital for my medical examination and on the way, IO informed my parents and my parents reached at the hospital.
I had shown the place from where the accused had kidnapped me to Page 8 of 21 FIR No. 597/2013 : State V/s Raja @ Chandu : PS Aman Vihar the police and the police had prepared site plan thereof which is already Ex. PW 12/G bearing my signatures at point B. I had earlier come to court where my statement was recorded by one Judge in his chamber.
At this stage, the said statement / proceedings U/S 164 Cr.P.C. has been shown to this witness on which she identifies her signatures on one page at point A. The said statement is already Ex. PW 1/B. I was produced before CWC at Avantika where I was counselled. Thereafter I was sent to Nirmal Chhaya.
Accused Raja @ Chandu is present in the court today ( correctly identified by the witness through the design of wooden partition). XXX XXX XXX by Sh.S.K. Sengar, Ld. Counsel for the accused.
We have two shops one is at our residence and the other one is at the distance of 10 minutes walk. My father runs the shop outside our house whereas my mother runs the other one. I had told my father about the accused being standing near an auto on the way from our house to the shop and he having offered me to go along with him. I had gone to the shop of my Page 9 of 21 FIR No. 597/2013 : State V/s Raja @ Chandu : PS Aman Vihar father to give him tea and snacks at about 1011 am. The said place where the accused was standing is a secluded place and there was nobody else there at that time. I do not remember whether school was closed or open. My father had not made a call at 100 number at that time and had asked me to report to him in case the accused again makes an offer to me. I had remained at the shop for about 5 minutes. The driver of the auto was also there. I had acquaintance with the accused since one year prior to the incident. I was semi conscious when the accused had made me to smell some stupefying substance and I had the senses to know that the accused had taken me in an auto. I had not raised alarm at the railway station as I was not conscious enough to do so . I regained my full consciousness at Jammu in the house of the aunty of the accused. The accused had not tied rope around my hands and legs and further not closed my mouth at that house. Vol. I was confined to a small room which had ventilator and a door. I had raised alarm in that room to invite the attention of the public persons but nobody could hear my voice. The accused had kept me in that room for 34 days. There was a toilet adjacent to that room which was Page 10 of 21 FIR No. 597/2013 : State V/s Raja @ Chandu : PS Aman Vihar used by me to ease myself. I remained in those very clothes which I had been wearing on 28.11.2013. I did not make any attempt to escape from that place because I did not know anybody there. I did not raise alarm even on the road, railway station and train when the accused had been bringing me back to Delhi. Vol. He had asked me not to do so failing which he would not take me to Delhi.At the time of clicking of photographs Ex. Pw 11/D1 and EX.Pw 11/D2 I had not told to the photographer that the accused had forcibly taken me to that place. Vol. I was threatened by the accused not to do so ( the witness has admitted both the photographs to be depicting her and the accused). It is wrong to suggest that the aforesaid two photographs are false and fabricated. Vol. Same were got clicked against my wishes. I had asked the IO on 04.12.2013 to call my parents but he did not do so. I did not make a complaint of it to SHO.
It is wrong to suggest that I had a long standing one side love affair with the accused. It is further wrong to suggest that after some time the accused also responded favourably towards my love offer to him. It is further wrong to suggest that the accused had not taken me anywhere on Page 11 of 21 FIR No. 597/2013 : State V/s Raja @ Chandu : PS Aman Vihar 28.11.2013. It is further wrong to suggest that the accused had told me that he would be going to Jaamu to his relative's house on 28.11.2013 or I had myself boarded a train to Jammu to meet the accused. It is wrong to suggest that at the time of my medical examination I had mentioned to the doctor that I had myself gone to Jammu, got married to accused and stayed there with him till 04.12.2013. Vol. The said statement was got recorded by the police. It is, however correct that I had refused for my internal gynecological examination. It is wrong to suggest that same was on account of the fact that the accused had not established any relations with me . It is further wrong to suggest that on account of difference of my religion and that of accused I was pressurised by my parents and people from my community to level false allegations of kidnapping , getting married and commission of sexual assault against the accused. It is further wrong to suggest that complaint now Ex. PW 4/X was forcibly got written from me by my parents under the supervision of our community head and Mullas after obtaining legal advise. It is further wrong to suggest that for the same reason this complaint does not bear any date. It is wrong to suggest that as Page 12 of 21 FIR No. 597/2013 : State V/s Raja @ Chandu : PS Aman Vihar on 28.11.2013 I was more than 18 years of age. It is further wrong to suggest that certificate Ex. PW 2/ A is a procured document or the same does not depict my correct date of birth. It is wrong to suggest that I have deposed falsely."
PW5 the doctor who examined the victim on 23.04.2014 vide MLC Ex.PW5/A. There is no material cross examination.
PW6 is the doctor who identified the signatures of Dr. Navdeep who examined the accused on 23.04.2014 vide MLC Ex.PW6/A and also examined the victim on the same date vide MLC Ex.PW6/B. There is no cross examination.
PW7 is the doctor who identified the signature of Dr. Atar Hussain who examined the accused on 21.04.2014 vide MLC Ex.PW7/A. There is no cross examination.
PW8 the doctor, SR. Gynae., who examined the victim on 06.12.2013 vide MLC Ex.PW6/B. There is no material cross examination.
PW9 is the Ct. who joined the investigation on 23.04.2014 and Page 13 of 21 FIR No. 597/2013 : State V/s Raja @ Chandu : PS Aman Vihar accompanied the victim to the hospital for her medical examination. There is no cross examination.
PW10 is the MHC(M) with whom samples were deposited on 21.04.2014. There is no cross examination.
PW11 is the first IO who conducted investigation till 06.12.2013 and got statement of the victim u/s 164 Cr.P.C. recorded. Thereafter, further investigation was entrusted to W/SI Ritu. There is no material cross examination.
PW12 is the second IO who conducted investigation since 20.04.2014 when afresh complaint was received at PS through office of DCP and Section 4 of the POCSO Act was added. She rearrested the accused and got him medically examined, seized his samples and also got the victim medically examined on 23.04.2014 and filed the chargesheet. She was briefly cross examined which has no bearing on the outcome of the case.
PW13 is the father of the victim i.e. the complainant who supported his complaint. He was briefly cross examined where he admitted that he did Page 14 of 21 FIR No. 597/2013 : State V/s Raja @ Chandu : PS Aman Vihar not make any police complaint against the accused in respect of accused harassing his daughter.
4. The accused in his statement u/s 313 Cr.P.C. has stated that he has been falsely implicated in this case at the instance of the parents of the victim because of different religion and no such incident ever took place.
5. It has been argued for the accused that the victim in her statement 164 Cr.P.C. has clearly stated that she went with accused of her own without any enticement or force and they got married and thereafter, they established physical relation and at that time victim was more 17 and half years and no offence is made out against the accused. It is argued that it was only in April, 2014 that the victim made false allegation of kidnapping and sexual assault against the accused under the pressure of her parents and her subsequent statement given in the court or in April, 2014 is an afterthought which cannot be relied upon. It is argued that there are contradictions in the statement of the victim and her father and prosecution Page 15 of 21 FIR No. 597/2013 : State V/s Raja @ Chandu : PS Aman Vihar has failed to prove its case.
6. Ld. APP, on the other hand, has stated that admittedly victim was minor in November/December, 2013 and she has specified that on 06.12.2013 when her statement u/s 164 Cr.P.C. was recorded, she was under pressure from the accused and later on she gave correct complaint against the accused on 21.04.2014 and also deposed in the court and as such prosecution has duly proved the offences. It is argued that there is no material on record that accused and victim got married and in the absence of any marriage, the offence of penetrative sexual assault is clearly made out.
7. I have heard the submissions.
8. As far as the date of birth of the victim is concerned, there is no dispute that she was born on 30.06.1996 as established through her MCD birth certificate by PW2. There is no material cross examination to this Page 16 of 21 FIR No. 597/2013 : State V/s Raja @ Chandu : PS Aman Vihar witness and there is reason to disbelieve the date of birth of the victim child as recorded in her MCD birth certificate. On the date of alleged incident of kidnapping i.e. 28.11.2013, she was 17 years and five months. Though she was minor, but had attained the age of discretion.
9. In this regard, it would be relevant to refer to the case titled as " S. Varadarajan Vs. State of Madras (reported as AIR 1965 SC 942)", wherein while distinguishing between " taking" and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India 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."
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10. It has also been held in para 8 of judgment titled as Bunty vs. State (G.N.C.T.) of Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011 by the Hon'ble Delhi High Court of Delhi as under : "8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had travelled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...."
11. There is difference between taking away and permitting a person to accompany you. The victim admittedly had attained the age of discretion. She though claimed that the accused put a handkerchief on her mouth because of which, she lost her consciousness but this fact was never told by her to the police on 06.12.2013 nor to the Ld.M.M. when her statement u/s 164 Cr.P.C. was recorded nor in the alleged history to doctors. For the first Page 18 of 21 FIR No. 597/2013 : State V/s Raja @ Chandu : PS Aman Vihar time, this allegation was made in her complaint given to the DCP Ex.PW4/X. Further she claimed that the accused had already booked two tickets for Jammu and they boarded the train at Old Delh Railway Station. IO did not make any effort to collect the details of those tickets to ascertain as to by whom and in whose name those tickets were reserved. The victim admittedly did not raise any alarm in the entire journey from Delhi to Jammu and from Jammu to Delhi which shows that she went to Jammu of her own with the accused and was neither forced nor enticed nor she was made unconscious by the accused. It is very difficult to believe the story that the passengers in the train asked the accused as to what has happened to the victim and he answered that she is not well and she has taken some medicine. Admittedly the journey from Delhi to Jammu by train and backwards is overnight journey and the story of the victim that she was unconscious from the place of her kidnapping on 28.11.2013 at about 10.00a.m. till next day on 29.11.2013 is highly unbelieveable.
12. Further, the victim in her statement given u/s 164 Cr.P.C. as well as Page 19 of 21 FIR No. 597/2013 : State V/s Raja @ Chandu : PS Aman Vihar during her counseling before CWC never made any allegations regarding kidnapping, sexual, assault and alleged unconsciousness. She made these allegations after more than four months in April, 2014 and there seems to be considerable improvements which makes her unreliable witness. In her first MLC Ex.PW6/B dated 06.12.2013, she refused her medical examination and further stated that she had gone with accused of her own will and got married on 29.11.2013. No history of sexual harassment or physical assault or drug intoxication or alcohol consumption, came back on her own on 06.12.2013. All these facts show that she was not sexually assaulted and got married with the accused willingly on 29.11.2013. It cannot be ignored that the victim is a muslim and as per muslim law she attained the age of puberty at the age of 14 years and she got married after attaining the age of puberty. There is no medical evidence to corroborate her unreliable testimony that she was sexually assaulted. Otherwise also a marriage of a minor is not void ab initio but is voidable at the instance of the victim. The victim never took any steps to declare her marriage void. The prosecution has failed to prove commission of any of the offence by the accused beyond Page 20 of 21 FIR No. 597/2013 : State V/s Raja @ Chandu : PS Aman Vihar reasonable doubt. Benefit of doubt is given to the accused. Accordingly, accused is acquitted. His bail bond stands cancelled and surety bond stands discharged. Endorsement, if any on the documents of accused or his surety be cancelled. The original documents of accused or his surety, if on record, be returned to him forthwith.
(Announced in the open (Amit Kumar)
Court on 16.04.2018) Addl. Session Judge01/
Special Court, POCSO
(NorthWest), Rohini/Delhi
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