Delhi District Court
State vs Mr.Manish @ Munna Son Of Mr.Lal Mani, on 31 May, 2010
IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE -01, WEST, DELHI
Sessions Case Number : 14 of 2010.
Unique ID Number : 02401R0187162010.
State versus Mr.Manish @ Munna son of Mr.Lal Mani,
Resident of Village Rajon, District Banka, Bhagalpur, Bihar.
FIR No.331 of 2009.
Police Station Uttam Nagar
Under sections 363/376 of the Indian Penal Code.
Date of filing of the charge sheet before : 20.04.2010.
the Court of Metropolitan Magistrate
Date of receipt of file after committal : 06.05.2010.
Arguments heard on : 31.05.2010.
Date of judgment : 31.05.2010.
Appearances: Mr. Vinod Sharma, Additional Public Prosecutor for the
State is on leave.
Mr.Harender Kumar, Substitute Additional Public
Prosecutor for the State
Accused on bail with counsel, Mr.Sanjeev Vashisht.
JUDGMENT
1. At the outset, it may be mentioned that this case has ben disposed of in twenty five days of its committal and one month SC No. 14 of 2010.
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and ten days of the charge sheet being filed before the Court of the learned Metropolitan Magistrate.
2. Mr. Manish @ Munna, the accused person, has been charge sheet by Police Station Uttam Nagar for the offence under sections 363 / 376 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that he kidnapped the prosecutrix (name withheld to protect her identity) aged about 15 years from the lawful custody of her parents and and committed rape upon prosecutrix against her will and without the consent.
3. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 20.04.2010 and after its committal, the case was assigned to this Court vide order dated 06.05.2010 of the learned Sessions Judge, Delhi.
4. Vide order dated 06.05.2010, charge for the offence under sections 363 / 376 of the IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. In order to prove this case the prosecution had examined the prosecutrix as PW1; Ms.Geeta, the mother of the prosecutrix, as SC No. 14 of 2010.
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PW2; Mr.Ram Babu Verma, the father of the prosecutrix, as PW3; Ms.Twinkle Wadhwa, learned Metropolitan Magistrate, who has recorded statement of the prosecutrix under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.), as PW5; SI Daljeet Singh, the duty officer who has recorded FIR, as PW5; Ct.Chander Prabha, who had accompanied the prosecutrix to the Court with HC Shailender and ASI Surat Singh for getting her statement recorded under section 164 Cr.P.C. and had taken the prosecutrix to Nari Niketan, as PW6; ASI Surat Singh, who had accompanied the prosecutix to the Court for getting her statement recorded under section 164 Cr.P.C., as PW7; HC Anil Kumar, the MHC (M) , as PW8; HC Shailender Kumar, police witness of investigation, as PW9; ASI Sushma, the Investigation Officer, as PW10; Dr.Rajeev Tyagi, who has medically examined the prosecutrix, as PW11; Dr.Sarika, who has medically examined the prosecutrix, as PW12; Dr.Rishi, who has identified the handwriting and signatures of Dr.Harvinder Singh on the MLC of the accused, as PW13; and Ms.Premvati, Principal of the school of the prosecutrix to depose about her date of birth, as PW14.
6. On 26.05.2010, the prosecution gave up the witnesses namely SC No. 14 of 2010.
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HC Dharmapal and Ct.Taufiq as their evidence was of repetitive nature.
7. On 26.05.2010, the defence counsel made a statement that the evidence of HC Satender Kumar and Ct.Narender Kumar is not disputed by the accused and they need not be examined.
8. In his statement under section 313 of the Cr.P.C. recorded on 31.05.2010, the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has been falsely implicated in this case by the parents of the prosecutrix who are against their marriage as he is of a different caste. He has submitted that the prosecutrix and he (accused) are are in love and they want to live together. He has preferred not to lead any evidence in his defence.
9. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has SC No. 14 of 2010.
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to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that parts of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized .It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of SC No. 14 of 2010.
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doubt to confer benefit of doubt.
10.There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
11.Under this sphere, I now proceed to test the submissions of both the sides.
12.The Additional Public Prosecutor has requested for conviction of the accused submitting that there is sufficient material on the record against him.
13.The accused and his counsel have requested for his release submitting that there is no incriminating evidence against him.
14.The prosecution story unveils with the FIR, Ex.PW5/A being lodged on the basis of the complaint, Ex.PW3/A, being made by SC No. 14 of 2010.
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Mr.Ram Babu Verma, father of the prosecutrix, on 20.10.2009 that his daughter aged 15 years has been enticed by some unknown person on 14.10.2009. the police raided the house of the accused but could not find the prosecutrix and the accused. The prosecutrix was recovered on 31.01.2010 from outside the Railway Station, Delhi vide recovery memo, Ex.PW3/B. The accused was arrested vide arrest memo, Ex.PW3/C and his personal search was taken vide personal search memo, Ex.PW3/D. The statement of the prosecutrix was recorded under section 164 Cr.P.C., which is Ex.PW1/A. the application of the Investigation for recording the statement of the prosecutrix under section 164 Cr.P.C. is Ex.PW4/A and the application for supply of copy of the statement of the prosecutrix under section 164 Cr.P.C. is Ex.PW4/B. The prosecutrix was medically examined vide MLC, Ex.PW11/A and the pulanda pertaining to the prosecutrix were seized vide seizure memo, Ex.PW9/A. The accused was medically examined vide MLC, Ex.PW13/A and the pullandas pertaining to the accused were seized vide seizure memo, ex.PW9/C. The certificate from the Principal of the school of the prosecutrix regarding her date of birth was obtained which is Ex.PW9/B. The relevant entries in the Register number 19 and the RC Book about the deposit of the case property in the Malkhana and sending to the FSL are Ex.PW8/1, Ex.PW8/2 and SC No. 14 of 2010.
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Ex.PW8/3. The affidavit of the prosecutrix about her marriage with the accused is Ex.PW9/DA.
15.The prosecution witnesses have ostensibly deposed as per the prosecution version. The police witnesses who are the witnesses of investigation and the doctors who had medically examined the accused and the prosecutrix have proved the relevant documents prepared by them. The school certificate about the date of birth of the prosecutrix has been proved by the Principal. The statement of the prosecutrix under section 164 Cr.P.C. has been proved by the prosecutrix as well as the learned Metropolitan Magistrate who recorded the same.
16.I find that the FIR, Ex.PW5/A, has been lodged on the basis of the information received in the Police Station on 20.10.2009 at 19.15 hours vide DD No.41A at 19.15 hours. However, DD No.41A `has neither been produced in the Court nor proved as per law. The prosecution has failed to prove the very document which made the police of Police Station Uttam Nagar swing into action which indicates that there is a possibility to conjure up a version to falsely implicate the accused in this case especially as the alleged incident is averred to have occurred on 14.10.2009 at unknown time.
SC No. 14 of 2010.
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17.It may be mentioned that there is an unexplained delay in lodging of the FIR. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the PWs 2 and 3 and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.
18.The incident allegedly has occurred on 14.10.2009 at unknown time while the FIR has been lodged on 20.10.2009 at 19.15 hours and there is a delay of six days. The prosecution has not been able to give any logical explanation or justification why the incident was not immediately reported and why the complainant made a delay of six days before approaching the police. PW3, the complainant of the case/ father of the prosecutrix, has not given any reason in his evidence as to why he did not get the FIR SC No. 14 of 2010.
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lodged immediately. A very weak argument is put forth by the prosecution that as the father of the prosecutrix was searching for her on his own, the complaint was lodged after six days. However to substantiate this claim, the prosecution was required to some positive evidence but there is none coming forth in the evidence of PW3. There is a delay of six days in lodging the FIR. Another bald explanation has come forth that PWs 2 and 3 were perplexed and due to fear they were not able to make their statements but there is no such deposition by PWs 2 and 3 that they were not in condition to make their statements. I do not find any logical explanation coming from the prosecution regarding the delay in making the complaint and lodging the FIR. Where there is delay in the lodging of the FIR, the possibility of manipulation cannot be ruled out which throws a shadow of doubt on the prosecution story.
19.Also it can be seen from the MLC of the prosecutrix, Ex.PW11/A that the prosecutrix does not have any injuries on her person. If a girl is raped against her wishes, some injuries, even if minor, are presumed to have occurred on her person and private parts but the prosecutrix does not have any such injury which also indicates that there has no forced physical relationship. It has been held in the judgment reported as SC No. 14 of 2010.
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Sadashiv Ramrao Hadbe v. State of Maharashtra and another, (2006) 10 SCC 92 that absence of injuries on the body of the prosecutrix improbablise the prosecution version that she has been raped. Similar opinion was also observed in Radhu v. State of Madhya Pradesh, JT 2007 (11) SC 91 and Vinay Krishna Ghattak v. State of Rajasthan, 2004 (1) RCR (Cri.) 565 wherein it was held that absence of injuries on the body of the prosecutrix generally gives rise to an inference that she was a consenting party. In the present case, therefore, it can be said as there is no injury on the body of the prosecutrix, the probability is that rape is not committed.
20.It may also be mentioned here that it can be seen from the MLC of the accused, Ex.PW13/A, that he does not have any injury on his person which indicates that he has not committed any offence. It was observed by the Supreme Court in the judgment reported as Rahim Beg and another v. The State of U.P., 1972 Cri.L.J. 1260 that absence of injuries on the male organ of the accused would point towards his innocence. Therefore, as the accused also does not have any injuries on his person and private parts, it can be said safely that he was not the perpetrator of the crime.
SC No. 14 of 2010.
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21.The evidence of the prosecutrix was recorded in camera taking all the safeguards and precautions as per the guidelines of the Hon'ble Supreme Court and the Hon'ble Delhi High Court. The prosecutrix, as PW1, has deposed that she knows the accused and she had gone with the accused on her own. She was in love with the accused that is why she told the accused to take her. He was not ready to take me and she compelled him to take her. She had gone with accused on her own and not on his asking. She wants to live with accused as she is in love with him. She was threatened by her family member to be killed if she will speak in favour of the accused. They also threatened her that she will go in jail if she speaks in favour of the accused. The accused had not committed any offence and he has been falsely implicated due to the influence exercised by her parents. She had married with accused in a temple. At the time of incident, she was above 16 years. Her statement was recorded before the learned Magistrate which is Ex.PW1/A. She wants the accused to be acquitted as he had not committed any offence. As the prosecutrix was resiling from her previous statement, she was declared hostile by the prosecution and she was cross examined by the Additional Public Prosecutor but nothing material came forth. She has deposed that in fact she was born in Barelli and her actual date of birth is 17.02.1991 and her age was 18 years at the time of SC No. 14 of 2010.
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incident. Her parents had got a birth certificate made in Delhi for the purpose of her admission in school mentioning her date of birth is 15.03.1994. In fact, she is above 18 years.
22.Even in her statement under section 164 Cr.P.C., the prosecutrix has deposed that she had proposed to the accused who accepted her proposal and thereafter she went with the accused after meeting him at metro and then by train they went to Ranchi where they got married.
23.I find that the parents of the prosecutrix, PWs 2 and 3, have also not produced her birth certificate issued by the Municipal Authorities as they do not have it. PW3 did not even know the age of his daughter. PW2 only had the horoscope prepared by a priest.
24.PW14 has produced the school records of the prosecutrix deposing that her date of birth is 15.03.1994 but admittedly there is no birth certificate issued by the Municipal Authorities nor the date of birth is based on any proof as the admission of the prosecutrix was on transfer.
25.It has been observed in Ramesh Chand alias Mohammed v. Sate, SC No. 14 of 2010.
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1984 (3) Crimes 7 (HP) that date of birth in Births and Deaths Register, should be given preference over the date given in the school admission form.
26.Even the parents of the prosecutrix did not have the birth certificate of the prosecutrix. This fact also makes the version of PWs 2 and 3 unbelievable that the prosecutrix was a minor on the date of the alleged offence when she herself has deposed that she was a major.
27.Further, the ossification test of the prosecutrix has also not been conducted which could have established her age conclusively.
28.Now, the question arises, "As to whether the age as determined by scientific ossification test should be given preference to the oral age aspect of the prosecutrix?" While dealing with similar situation it was observed by Hon'ble Delhi High Court in a case reported as Brij Mohan v. State, 38 (1989) DLT 15, as under :-
"It is settled law that the absence of cogent evidence such as of birth entry, the determination of age scientifically i.e. by ossification test should be preferred to the other evidence, including an entry in the school register unless that to be flawless."
SC No. 14 of 2010.
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29.Further more, in another case reported as Kanchan Dass v. State, 40 (1990) D.L.T. 401, it was held by Delhi High Court while dealing with similar aspect as under :-
"Assessment of age given on the basis of ossification test is to be preferred when there is doubtful oral evidence and suspicious evidence in the shape of school leaving certificate."
30.So, in view of the aforesaid judgment as rendered by Delhi High Court and applying the same to the facts and circumstances of the present case, it can be safely concluded that it cannot be said that the prosecutrix was a minor at the time of incident. PW14 has deposed that there is no birth certificate from the Municipal Authorities as the prosecutrix was admitted on transfer. Apparently, there is no birth certificate of the prosecutrix, as deposed by her parents, PWs 2 and 3. The ossification test of the prosecutrix has also not been conducted to ascertain her age. The school records of the prosecutrix do not inspire confidence as there are not based on any cogent evidence regarding her date of birth. She has herself deposed that she was above 18 years of age at the time of alleged incident.
31.In the circumstances, it cannot be said with certainty that the prosecutrix was a minor on the date of alleged offence. The SC No. 14 of 2010.
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prosecutrix appears to be a major on the date of commission of offence as the prosecution as failed to prove that she was a minor.
32.Further, the prosecutrix has turned hostile and has not supported the prosecution case and more importantly has married the accused and wants to be with him but her parents are against the relationship.
33.In the light of the aforesaid nature of deposition of the prosecutrix who happens to be the a material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal v.The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as follows:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
34.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004 (1) C.C. Cases SC No. 14 of 2010.
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487.
35.It would not be out of place to mention here that in the judgment reported as Rukshana & Anr. v. Govt. of NCT of Delhi & Ors. 2007 (2) JCC 1401, it was observed where the prosecutrix was a minor and had married the accused that:
"Admitted facts are that both the petitioners are living together after marrying each other. The marriage was solemnized on 06.05.2005. Since then they are living together as husband and wife and leading blissful married life. They have been blessed with a male child who is still an infant. The only hurdle sought to be created by the respondents is that she was 16 years and six months of age and, thus minor at the time of commission of the alleged offence. However, only because of this reason, I am of the view that in the facts and circumstances of this case, the petitioners cannot be denied the relief prayed for and it would be a fit case to quash the proceeding. This course of action is in the interest of not only the petitioner No.1 but the petitioner No.2 and her child as well. The prosecution is launched on the allegations that the petitioner No.2 is the victim of the crime. However, if the petitioner No.1 is now prosecuted and convicted, again it would be the petitioner No.2 who shall become the victim in that eventuality. Additional victim would be small child. Both of them would be rendered without any financial support and the consequences can be disastrous. We should not compound her sufferings and miseries more so when she willingly went with the petitioner No.1 and married him."
36.So, in view of the aforesaid case law and applying the same to SC No. 14 of 2010.
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the facts and circumstances of the present case, it can be safely concluded that the ossification test of the prosecutrix was to be preferred to oral age of the prosecutrix and her school record but her ossification test has not been conducted and her school record about the date of her birth does not inspire confidence.
37.The prosecutrix appears to be a major on the date of commission of offence as the prosecution as failed to prove that she was a minor.
38.Consequently, no inference can be drawn that the accused is guilty of taking away the prosecutrix from the custody of her parents. PW1 has also deposed that she went with the accused on her own. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her parents' house or even of telling her not to accompany him. She has infact deposed that she made the accused go with her and not that the accused asked her to accompany him. There is no material on record that the prosecutrix was taken or enticed or kidnapped or solicited or forced her into illicit intercourse or raped by the accused. The fact that the prosecutrix has married the accused and wants to live with him also indicates that the accused has not committed any offence. There is nothing on the record to suggest SC No. 14 of 2010.
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that the prosecutrix was a minor on the date of alleged offence or that the accused has committed any crime. No case at all is made out against the accused.
39.In the case Manish Singh versus State Govt. of NCT & Ors 126 (2006) DLT 28 (DB), Hon'ble High Court had dealt with the cases of run away marriages where in most of the cases the girl is minor aged about 16 years to 18 years. It was held by Hon'ble High Court as under :
"'Run Away Marriages' are manifestation of generational change due to variety of factors, including increased interaction between sexes with young boys and girls attaining majority rapidly. It is complex problem with inner play of social, economic, religious, caste, educational factors, including sex education and vulnerability and backwardness of weaker sex having its impact and that Child Marriage Restraint Act and Hindu Marriage Act are social legislations aimed at protection and development of vulnerable sex and to be interpreted and worked accordingly.
40.This brings me to the final question as to whether it was she who was with the accused of her own or had been forced by the accused. In this regard it is no doubt that there is no material to conclude that the accused had kidnapped the prosecutrix, used force on or had raped her. it appears that the prosecutrix who is not a minor had gone with the accused on her own and had SC No. 14 of 2010.
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married him. It is more a case of elopement and run away marriage against the wishes of the parents of the prosecutrix. The evidence of the prosecution is lacking in the essential ingredients of the crime of kidnapping and rape. The prosecution story does not inspire confidence and is not worthy of credence.
41.Since the prosecutrix, the star witness of the case, has not deposed against the accused and is hostile and there is no incriminating evidence against the accused, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused person.
42.Consequently, the accused person namely Mr.Manish @ Munna, is hereby acquitted of the charge. His bail bond and surety bond are cancelled and his surety is discharged.
43.File be consigned to Record Room.
Announced in the open Court (Nivedita Anil Sharma) on this 31st day of May, 2010. ASJ-01, West, Delhi.
SC No. 14 of 2010.
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