Delhi District Court
State vs . Ram Sagar on 28 May, 2013
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
SC No.30/1/12
FIR No.84/12
U/s 363/366 IPC
PS Najafgarh
State
Vs.
Ram Sagar s/o Sh.Ram Pratap Mandol
.......... Accused
Challan filed on : 23.05.2012
Reserved for order on : 07.05.2013
Judgment delivered on :28.05.2013
JUDGMENT
Briefly stated the facts of the prosecution case are that on 23.03.2012 Smt. Deepa, mother of prosecutrix Kajal came to PS and got recorded her statement Ex.PW3/A alleging that her daughter aged about 16 years had gone to bazar to purchase something on 21.03.12 at about 6 p.m but she did not return. She searched for her in her neighbourhood as well as relatives but could not trace her. She State Vs. Ram Sagar FIR no. 84/12 Page No.1 of 28 has also given description of her daughter and that she had no clear vision during day and has weak mind. She suspects that someone had taken her away after enticing and alluring her. On the basis of this statement IO prepared rukka Ex.PW15/A and got registered FIR no. 84/12 copy of which is Ex.PW16/A. The wireless message were flashed and information was also fed regarding missing children on Zip Net. On the basis of secret information, House no. 118, FBlock, JJ Colony, Madipur, New Delhi was raided from where prosecutrix Kajal was recovered from the possession of accused Ram Sagar. The statement of Kajal was recorded. Accused Ram Sagar was arrested. The medical examination of prosecutrix and accused was conducted and exhibits were seized. The statement of prosecutrix u/s 164 Cr.PC was got recorded. To determine the age of the prosecutrix, her bony age Xray was taken and her age was opined between 1617 years. The statements of the witnesses were recorded and after completion of the investigation, challan was filed.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 06.06.2012. State Vs. Ram Sagar FIR no. 84/12 Page No.2 of 28
3. The charge against the accused Ram Sagar was framed u/s 363/366 IPC on 23.07.2012 to which the accused pleaded not guilty and claimed trial. Hence the case was fixed for Prosecution Evidence.
4. The prosecution, in order to prove its case against the accused Ram Sagar, in all has examined as many as 16 witnesses.
5. PW1 Dr. L.R.Richhele has deposed that he examined the Xray plate of Kajal for determination of her age vide MLC Mark PW1/A. The bony age of said patient was opined to be between 16 to 17 years. His report is Ex.PW1/A.
6. PW2 BB Sinha has also examined the prosecutrix for bony age. He found her conscious oriented but she was mentally retarded. Her MLC is Ex.PW2/A.
7. PW3 Deepa Bharti is the mother of prosecutrix who had made complaint Ex.PW3/A regarding missing of her daughter. She accompanied the police in search of her daughter. She has stated that on 25.3.2012 she was telephonically informed by her son that State Vs. Ram Sagar FIR no. 84/12 Page No.3 of 28 prosecutrix had been recovered in Madipur. IO alongwith prosecutrix and one person accused Ram Sagar who was residing in their neighbourood were brought at Najafgarh and thereafter she accompanied her daughter to hospital for her medical examination. On 26.4.2012 her Xray was taken.
8. PW4 Dr.Rajeev Solanki has deposed that on 26.03.2013 he examined the prosecutirx & Ram Sagar and prepared their detailed MLCs which are Ex.PW4/A and Ex.PW4/B.
9. PW5 Kajal is the prosecutrix who has stated that accused Ram Sagar had taken her to the house of his uncle somewhere in Delhi.
10. PW6 Kanti Devi has deposed that she does not remember the date and month, however one day accused had brought one girl to their house and on next day both of them went from there. She was declared hostile by the prosecution and cross examined by the Ld. APP for the state wherein she denied the suggestions that the name of the girl was Kajal or that she was 18 years of age or that she was detained there for 45 days.
State Vs. Ram Sagar FIR no. 84/12 Page No.4 of 28
11. PW7 Chulhai Mehto has also deposed that accused had brought one girl to their house and on the next day both of them left from there. He was also declared hostile on some material points by the Ld. APP for the State, however, he denied each and every suggestion put by the Ld. APP.
12. PW8 Ct. Anita has deposed that on 26.3.12 she joined the investigation and they went to Nangloi. One relative of the prosecutrix pointed out towards a house where two ladies, prosecutrix and some children were found inside the house. Prosecutrix was brought to PS and she accompanied her to hospital for medical. She was also declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein she denied that it was 25.3.2012 instead of 26.3.12 when she joined the investigation. It is correct that they had gone to Madipur in investigation. He admitted that brother of the prosecutrix was with them. She does not remember if the accused was also present there or not.
13. PW9 Ct.Pardeep has deposed that he joined the investigation on 25.03.2012 and went to Madipur and on pointing State Vs. Ram Sagar FIR no. 84/12 Page No.5 of 28 out of secret informer they went to one house and found prosecutrix and accused there apart from uncle and aunt of accused. Accused was arrested vide memo Ex.PW9/A and his personal search was conducted vide memo Ex.PW9/B. He was interrogated and his disclosure statement Ex.PW9/C was recorded. The recovery memo of the prosecutrix was prepared which is Ex.PW9/D. They were brought to PS and then taken to hospital for medical examination. After medical, doctor handed over some sealed pullanda which was seized by IO vide memo Ex.PW9/E.
14. PW10 W/Ct Bulli has deposed that prosecutrix Kajal was brought to the court and her statement u/s 164 Cr.PC was got recorded.
15. PW11 Ct.Surender Singh has also deposed that statement of prosecutrix was got recorded and Ram Sagar was produced in the court and sent to jail. He cannot identify Ram Sagar. He was declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he has stated that he cannot say if the accused Ram Sagar present in the court is the person who was brought by them to the court on 26.4.2012.
State Vs. Ram Sagar FIR no. 84/12 Page No.6 of 28
16. PW12 Sh Gopal Singh Chauhan, Ld. MM has deposed that he recorded the statement of the prosecutrix u/s 164 Cr.PC which is Ex.PW5/A.
17. PW13 Sandeep is the brother of prosecutrix and he has deposed that his sister went missing during March and his mother got registered FIR. He has deposed that he went to the house of uncle of Accused Ram Sagar at Nangloi but neither his sister nor the accused were found there. Next day he went to PS where he found his sister Kajal and accused Ram Sagar. He was declared hostile by the Ld. APP for the State and cross examined by him wherein he denied that he had gone in search of his sister to Madipur or that he found Kajal and Ram Sagar there or that he informed the family members regarding recovery of his sister.
18. PW14 HC Paramveer Singh is the MHCM who made entry in register no.19 regarding deposit of case property. The entry is Ex.PW14/A.
19. PW15 SI Dinesh Kumar is the IO of this case who has recorded the statement of complainant Deepa, prepared rukka State Vs. Ram Sagar FIR no. 84/12 Page No.7 of 28 Ex.PW15/A and got the case registered. He deposed that he alongwith other police officials went in search of prosecutrrix and accused Ram Sagar and prosecutrix were found in H.NO.118 F Block alongwith uncle and aunt of accused. Accused was arrested vide memo Ex.PW9/A and his personal search was conducted vide memo Ex.PW9/B. His disclosure statement is Ex.PW9/C. The recovery memo is Ex.PW9/D. Prosecutrix and accused were medically examined and the pullanda was seized vide memo Ex.PW9/E. He got recorded the statement of prosecutrix u/s 164 Cr.PC. He has further deposed that prosecutrix was subjected to ossification test and he collected the report.
20. PW16 ASI Balwan Singh is the FIR recorder who recorded FIR no.84/12,copy of the FIR is Ex.PW16/A.
21. After completion of evidence of the prosecution, statement of accused u/s 313 Cr.PC was recorded in which the accused has stated that he has been falsely implicated in this case. He did not opt to lead defence evidence. Therefore, the case was fixed for final arguments.
State Vs. Ram Sagar FIR no. 84/12 Page No.8 of 28
22. I have heard the arguments from the Ld. Counsel for the accused as well as Ld. APP for the State. During the course of arguments Ld. counsel for the accused has stated that in this case the prosecutrix has given inconsistent statement which cannot be believed. He has submitted that as per the case of the prosecution the prosecutrix was recovered from the house of uncle and aunt of accused. He has drawn the attention of the court on the statements of officials witnesses and stated that from the evidence it can be easily inferred that accused was not present at the house from where the prosecutrix was recovered. It is also submitted that there is inordinate delay in lodging the present case FIR. Ld. Counsel has further submitted that the prosecutrix has accompanied the accused on her own free will without any force and therefore section 366 IPC is not applicable. It is also submitted that she was above 18 years of age and hence section 363 IPC is also not made out in this case. Ld. Counsel submitted that accused may kindly be acquitted.
23. On the other hand Ld. APP for the State has submitted that the age of the prosecutrix is material in this case and when she was taken away by the accused, her age was not 18 years. So, accused may kindly be convicted.
State Vs. Ram Sagar FIR no. 84/12 Page No.9 of 28
24. On analyzing the testimonies of witnesses, it is revealed that PW3 Deepa Bharti is the complainant and mother of the prosecutrix, PW5 Kajal is the prosecutrix, PW6 Kanti Devi and PW7 Chulhai Mehta are the witnesses where prosecutrix was taken by accused and PW13 Sandeep is the brother of prosecutrix. PW3 Deepa and PW5 Kajal are the main star witnesses of the prosecution and the case of the prosecution hinges on their testimonies. Charge has been framed in this case u/s 363/366 IPC. I have gone through the evidence as well as documents on record.
25. PW5 Kajal has deposed in her statement that she is illiterate. She does not remember the exact date and month, however, one day in the present year, he had gone to some shop outside her house, accused Ram Sagar, present in the court had taken her to the house of his uncle somewhere in Delhi. He detained her for about four days. During this period the accused did not state anything to her, he also did not do any wrong physical act with her. She was recovered by the police from the house of uncle of the accused. She was not produced by the police before any court. Her statement was not recorded in the court. She was taken to some hospital for Xray. State Vs. Ram Sagar FIR no. 84/12 Page No.10 of 28 She was declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein she has admitted that she was produced before a Magistrate and whatever was happened with her she told to the court and her statement was recorded. She identified her thumb impression on statement u/s 164 Cr.PC Ex.PW5/A. She admitted that it was on 21.03.2012 at about 6 p.m when she had gone to a shop near her house. She admitted that accused Ram Sagar was residing in a room near her house for last 34 months She admitted that accused had taken her stating that he wanted to marry her. She admitted that accused has allured her that he will keep her well after the marriage but she did not agree for the marriage. She admitted that on her refusal the accused had taken her to the house of aunty in a bus forcibly. She admitted that accused had threatened her that he will kill her in case of any noise raised by her. She admitted that she was made to wear red colour saree and bangles by the accused and his aunty. In cross examination she has stated that she cannot tell the difference of age between her and her elder sister. She does not have any idea about the difference of age between her and her brother. She started from her house at about 5 p.m and gone to the shop. She was having Rs.10/. She admitted that the said shop is situated in a residential area. At the time of alleged incident, she was State Vs. Ram Sagar FIR no. 84/12 Page No.11 of 28 returning her home after purchasing the articles. She admitted that there was many customers at the shop. Accused had met her at the shop. He had taken her from the shop forcibly. She did not raise noise when the accused was taking her Vol. Becuase he had given threat to her. She denied the suggestion that she had gone with the accused on her free will and due to this reason she did not raise any noise. Accused had taken her in a bus. The bus stop was at the walking distance of about 30 minutes from the shop. They went on foot. The accused was caught holding her hand while going to the bus stop. She admitted that many public persons passed through near them while going to the bus stop. There were 23 passengers in the bus. She denied the suggestion that she is aged about 19 years. She denied that she had love affair with accused and had gone with him voluntarily. She denied the suggestion that she is deposing under the pressure of her mother as she was not liking the affair.
26. The contention of the Ld. APP for the State is that the age of the prosecutrix was below 18 years while the contention of the Ld. Counsel for the accused is that the prosecutrix was above 18 years of age. I have also considered this aspect of case. In the initial statement of complainant she has stated that her daughter was aged State Vs. Ram Sagar FIR no. 84/12 Page No.12 of 28 about 16 years. In her MLC Ex.PW15/A her age is stated to the 16 years and in another MLC made at the time of bone age medical examination her age is stated to be 15 years. The prosecutrix herself has deposed her as 16 year before the Ld. MM at the time of recording of her statement u/s 164 Cr.PC. As per statement of PW3 complainant Deepak Bharti, her daughter had never gone to any school. In cross examination she has admitted that she does not have any proof of age of the prosecutrix. She has never gone to school. She had not given any proof of age of her daughter. Admittedly, there is no proof of date of birth of the prosecutrix available on file in this case as she did not go to school. There is also no certificate proved from Municipal Corporation. So, there is no cogent and reliable proof of age of the prosecutrix in this case. However, the prosecution has examined PW1 Dr.LR Richhele and PW3 Dr.BB Sinha who had conducted the Xray of the prosecutrix for determination of age. I have perused the report Ex.PW1/A. It has been opined by Dr. L.R. Richhele, Consultant & HOD (Radiology) who has been examined by the prosecution as PW1 that the bony age of the prosecution is between 16 to 17 years. But on perusal of the said report it is revealed that the opinion regarding bony age of the prosecutrix has not been opined by the competent board of doctors and it is the State Vs. Ram Sagar FIR no. 84/12 Page No.13 of 28 opinion of only one doctor. However, as per PW1 he has opined the age of the prosecutrix to be between 16 to 17 years on the basis of X ray plate.
27. Section 363 IPC provides for the punishment for kidnapping. Kidnapping is defined u/s 361 which reads as under: 'Kidnapping from lawful guardianship - Whoever takes or entices any minor under sixteen years of the 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 unlawful 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. Explanation - The words 'lawful guardian' in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception - This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who is good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.'
28. A bare perusal of the above section would show that in order to constitute kidnapping, it was necessary that there should be either taking away of minor from the custody of lawful guardian without consent of the lawful guardian or enticing the minor so that State Vs. Ram Sagar FIR no. 84/12 Page No.14 of 28 minor leaves the custody of lawful guardian under enticement. Presuming the bony age report Ex.PW1/A, the age of the prosecutrix is opined as 16 to 17 year. 'Enticing' is defined in Chambers Twenty First Century Dictionary as to 'temp or persuade by arousing hopes or desire by promising a reward'. In Wester Dictionary 'enticement' is defined as to 'cause a person to cease resisting and to do as one wishes by offering some inducement'.
29. In case law Mohar Singh @ Pappu Vs. State, MANU/DE/2138/2002 it is stated in head note that : 'Criminal - Benefit of doubt - Sec. 34, 363, 366 and 376 of IPC, present appeal has been filed against order whereby appellants are convicted for offence punishable u/s 34, 363, 366 and 376 IPC - Held, prosecution has failed to prove with certainty that age of prosecutrix was below 18 years at time of incident - Further, statement of prosecutrix was not reliable as her father himself stated that girl had taken away some clothes and a sum amount which shows that she had willingly gone with accused - Not only that prosecutrix did not raise any alarm or protest for two - three days during which period she remained in Chanderlok Park as stated by her - She could raise alarm to attract attention of public - In these circumstances it can be safely concluded that she roamed with accused persons of her own accord and since she has not been proved to be minor, accused persons are entitled to be given benefit of doubt - State Vs. Ram Sagar FIR no. 84/12 Page No.15 of 28 Accordingly, appeals are acceptedImpugned order of conviction and sentence is hereby set aside appellants are acquitted.
30. In the instant case also, the prosecution has failed to prove with certainty the age of the prosecutrix as the some documents shows her age as 15 years and some shows 16 years which is a verbal version. The Xray of bony age shows it to be between 16 to 17 years but this age estimation has not been given by competent board of doctors. It is well settled that there may be variation of one or two years in the age opined by the doctors. From the evidence on record it can be well said that the exact estimation of age of the prosecutrix could not be done in the present case. In case State of Karnataka Vs. Sureshbabu Pukraj Porral, AIR 1994 SC 966 it is observed that when the age is in doubt then the question of taking away the prosecutrix from her lawful guardianship does not arise. In case law Samir Saha Vs. State of Tripura, 1998 Cr.L.J 1360 (Gau) it is observed that 'when there is no evidence that the victim girl was below the age of 18 years the conviction of the accused u/s 363 IPC is not proper'. In view of the above facts of the case, I am of the view that the prosecution has not been able to prove by any cogent and convincing evidence that the prosecutrix was a minor at State Vs. Ram Sagar FIR no. 84/12 Page No.16 of 28 the time of incident and she was taken away from the custody of her guardian against her will.
31. As far as charge u/s 366 IPC is concerned, I have gone through the statement of prosecutix. She has stated that she had gone to some shop outside her house. Accused Ram Sagar had taken her to the house of his uncle somewhere in Delhi but she cannot tell the exact location and detained her there for about four days. PW6 Smt. Kant Devi and PW7 Chulhai Mehto have admitted that accused Ram Sagar had brought a girl to their house but they did not support that he detained her at their house for 45 days. They did not identify the girl in photograph Mark A that she was the same girl who was brought. PW5 Kajal was declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein she admitted the affirmative suggestions put by the Ld. APP for the State that Ram Sagar was residing in a room near their house for the last 34 months prior to the day of incident. She further admitted that accused had taken her stating that he wanted to marry her. She further admitted that accused had allured her that he will keep her well after the marriage but she did not agree for the marriage. He took her forcibly in a bus. She further admitted that accused had threatened her to kill her in case of any noise raised by her. The State Vs. Ram Sagar FIR no. 84/12 Page No.17 of 28 above affirmative suggestions were admitted by the prosecutrix after being declaring hostile. Presuming that prosecutirx was taken away by accused, I have also considered her cross examination. She has stated that she started from her house at about 5 p.m. However, in cross examination conducted by Ld. APP she has stated on 21.3.2012 at about 6 p.m she had gone to the shop near by her house. The said shop is situated in a residential area. At the time of alleged incident, she was returning her home after purchasing the articles. She admitted that there were many customers present at the shop. Accused met her at the shop. He had taken her from the shop forcibly. The prosecutrix has made contradictory statements as sometime she has stated that accused had taken her while she was returning her home after purchasing the articles and sometime she has stated that he took her from the shop forcibly. As per her own version there many many other customers at the shop. The shopkeeper must have also been there. She alleged that accused had taken her from the shop forcibly. The said customers as well as shopkeeper must have been of the same locality and known to prosecutrix as well as accused since they were also residents of the same locality. The allegation of prosecutrix that she was taken away from the shop forcibly seems to be untrue since many customers State Vs. Ram Sagar FIR no. 84/12 Page No.18 of 28 were also present there who would have witnessed the incident. But no such customer or the shopkeeper where the prosecutrix had gone to bring the articles has been examined by the prosecution in this case to establish that the incident had taken place in the way as shown by the prosecution.
32. The prosecutrix has further admitted that she did not raise any noise when accused was taking her vol. Because he had given threat to her. The prosecutrix has not defined in her examination in chief or cross examination as to what threat was extended to her. Only in the cross examination conducted by Ld. APP she admitted the affirmative suggestion of Ld. APP that accused threatened to kill her. The prosecutrix was a grown up girl in this case. Had she herself not interested in going with the accused, she would have raised alarm but she herself has admitted that she did not raise any alarm.
33. The prosecutrix has admitted that accused had taken her in a bus. The bus stop was at the walking distance of about 30minutes in time from the shop. They went to the bus stop on foot. The accused was holding her hand while going to bus stop. She State Vs. Ram Sagar FIR no. 84/12 Page No.19 of 28 admitted that many public persons passed through near them and it took about 30 minutes in reaching the bus stop. The prosecutrix and accused had taken 30 minutes to reach at the bus stop and on the way many public persons met them. But the prosecutrix did not try to tell anyone that the accused is taking her forcibly. Even in the bus there were passengers, driver and conductor. There also she did not take any step to tell anyone or raise alarm that she is being taken forcibly by the accused while the prosecutrix was a fully grown up girl and able to understand ups and downs of the society.
34. In "Shyam & Another Vs. State of Maharashtra", 1995 Criminal Law General 3974, the prosecutrix was a grown up girl, though she had not touched 18 years of age. She claimed during trial that she was kidnapped under threat. The evidence produced during trial showed that she was seen going on the bicycle of the accused. The Hon'ble Supreme Court noted that it was not unknown to her with whom she was going and therefore, it was expected of her then to jump down from the bicycle or put up the struggle and in any case raise an alarm to protect herself. As no such steps were taken by her, the Hon'ble Supreme Court felt that she was a willing party to go with the appellants of her own and, therefore, there was State Vs. Ram Sagar FIR no. 84/12 Page No.20 of 28 no taking out of the guardianship. The appellants were acquitted of the charge under Section 366 of IPC.'
35. In "State of Karnataka vs. Sureshbabu", 1994 Crl.L.J.1216(1), it was found that the girl went with the accused voluntarily. It was held by the Hon'ble Supreme Court that the requirement of Section 366 of IPC is that taking or enticing away a minor out of the keeping of the lawful guardianship was an essential ingredient of the offence of kidnapping. It was held that in such a case, it is difficult to held that the accused had taken her away from the keeping of her lawful guardian and something more has to be shown in a case of this nature, like inducement.
36. In "Mahabir vs. State" , 55(1994)DLT 428, the appellant and the prosecutrix were known to each other. The appellant took the prosecutrix to a place outside Delhi where they stayed for about fifteen days and had sexual intercourse with each other. The appellant was convicted under Sections 366 and 376 of I.P.C. A learned Single Judge of this Court noticed that she had gone to Railway Station, had stood there with the appellant who also went to purchase tickets and then she had travelled with him in a compartment shared by other persons. She had then gone to a house State Vs. Ram Sagar FIR no. 84/12 Page No.21 of 28 in a tonga and yet she did not lodge any protest and made no attempt to flee despite having ample time and opportunity. The learned Single Judge noted that on the day of reckoning, she surely had crossed mark of sixteen years and since she was all along a willing party, the appellant was acquitted of both the charges against him. Thus, despite the prosecutrix being less than eighteen years of age, the appellant was acquitted not only of charge under Section 376 but also of the charge under Section 366 of I.P.C.
37. In "Piara Singh vs. State of Punjab", 1998(3) Crimes 570, the High Court found that the prosecutrix was more than sixteen years of age at the time of this incident, though, the case of the prosecution was that she was fourteen years of old at that time. Since the High Court came into conclusion that no force was used in having sexual intercourse with him, the appellant was acquitted not only of charge under Section 376 but also of charge under Section 366 and 366 A of Indian Penal Code.
38. In "Bala Saheb vs. State of Maharashtra", 1994 Criminal Law General 3044, it was found that the prosecutrix accompanied the appellant/accused from her village and stayed with him for two to three days. It was held that these State Vs. Ram Sagar FIR no. 84/12 Page No.22 of 28 circumstances clearly show that offence under Section 363 or 366 of I.P.C. was not made out.
39. In case Law Vivek Kumar @ Sanju and Anjali @ Afsana VS. The State, Govt. of NCT of Delhi and Tahir Ali it is stated in head note that : 'Criminal kidnapping Sec. 363 IPC for quashing FIR u/s 363 IPC alleging commission of offence of kidnapping of petitioner no.2 by petitioner no.1 Held, for constituting kidnapping it was necessary that there should be either taking away of minor from custody of lawful guardian without their consent or enticing minor so that minor leaves custody of lawful guardian under enticement reason behind leaving house by petitioner no.2 was fear and threat to her life and not enticing away. Falling in love does not amount to enticing - further providing shelter to driven away girl not amount to kidnapping or enticing petition allowed'.
40. In case law S Varadarajan Vs. State of Madras, MANU/SC/0081/1964 it is stated in head note that : 'the case dealt with the meaning of take out of keeping of the lawful guaradian under sec 361 IPC It was held that where a minor girl was allegedly taken away by the accused persons from the protection of her father and where the girl had a capacity to know what she was State Vs. Ram Sagar FIR no. 84/12 Page No.23 of 28 doing and had voluntarily joined the accused, then in such case it could not be said that the accused had taken her away from the protection of her lawful guardian within the meaning of sec.361 of the Code'.
41. The present case stands on a much stronger footing because the cross examination of PW5 clearly demonstrate that she accompanied the accused on her own freewill. In case Shyam & Ors Vs. State of Maharashtra (supra), it is stated that the prosecutrix was a fully grown up girl may be one who had yet not touched the age of 18 years but still she was in the age of discretion, sensible and aware of the intention of the accused therein that he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. Thus it was expected of her to jump down from the bicycle or put up a struggle and in any case raise alarm to protect herself. Since no such step was taken up by her she seemed to be a willing party to go with Shyam the appellant therein on her own and that there was no 'taking' out of guardianship of her mother'.
42. I have also considered the testimonies of other witnesses. PW15 SI Dinesh has stated that he alongwith W/.Ct Anita, Ct. Pradeep, Sandeep brother of prosecutrix and secret State Vs. Ram Sagar FIR no. 84/12 Page No.24 of 28 informer went to Madipur in search of prosecutrix and they reached in H.NO.118 F Block where accused Ram Sagar and prosecutrix were found there and accused was arrested vide arrest memo Ex.PW9/A and his personal search was conducted vide memo ex.PW9/B. I have perused the statement of PW13 Sandeep who is the brother of prosecutrix who has stated that she went to the house of uncle of accused Ram Sagar but neither his sister nor the accused were found there. He further stated that, next day he went to PS and found his sister and accused in the PS. PW13 would have been the independent witness regarding arrest of accused but he did not support the testimony of PW15 SI Dinesh that accused Ram Sagar was found at the house of his uncle and aunt and that he was arrested from there. He even denied the suggestion of Ld. APP for the State that he is the witness to the recovery of his sister. PW5 prosecutrix has also not stated that accused Ram Sagar was arrested from the house of his uncle and aunt or that she was recovered from his possession. PW8 Ct. Anita has also not supported the version of PW15 SI Dinesh regarding arrest of accused as she was declared hostile wherein she has stated that she does not remember if the accused was present at that place or not. In view of the above statements, the arrest of accused from the house of his uncle and State Vs. Ram Sagar FIR no. 84/12 Page No.25 of 28 aunt is doubtful.
43. PW6 Kanti Devi and PW7 Chulhai Mehto have stated that on the next day both of them (accused and girl) went from their house. Both these witnesses did not support the case of the prosecution regarding recovery of prosecutrix from their house. PW13 Sandeep who is the brother of prosecutrix has also not supported the version of prosecution that his sister was recovered from the house of PW6 & 7 while it is the case of the prosecutrix that PW13 was with the police official at the time of recovery of prosecutrix. There is no other independent examined by the prosecution regarding recovery of prosecutrix. None has been associated by the IO during preparation of recovery memo Ex.PW1/D. So, recovery of prosecutrix from the house of PW6&7 is also doubtful.
44. Ld. APP has argued that prosecutrix was mentally retarded girl. He has drawn that attention on the testimony of PW2 Dr. BB Sinha who has examined her for determination of her bony age. He found her conscious oriented but stated that she was mentally retarded. There is no other evidence or document available State Vs. Ram Sagar FIR no. 84/12 Page No.26 of 28 except the oral statement of PW2. I have perused the statement of prosecutrix recorded u/s 164 Cr.PC but Ld. MM has never observed that the prosecutrix was mentally retarded girl. She has got recorded her statement before Ld. MM. She was also examined in the court and she has given her statement and it has never been noticed that she has any mental problem. Therefore, the submissions of Ld. APP for the State is not well founded.
45. In the present case, the prosecution has failed to prove that PW5 was a manor girl. She was very well aware as to what she was doing and she voluntarily joined the company of accused Ram Sagar. She was fully grown up girl may be one who had yet not touched the age of 18 years but still she was at the age of discretion, sensible and aware as to what she is doing. This fact is manifest from her deposition recorded in the court as well as statement u/s 164 Cr.PC recorded by the Ld. MM. She accompanied the accused in bus but did not raise any noise. She remained at the house of uncle and aunt of accused for about 4 days but did not try to leave that place and reach her parents house. She never alleged any threatening from the uncle and aunt of accused. It is therefore, emphatically clear that she wanted to marry accused Ram Sagar which does not amount to State Vs. Ram Sagar FIR no. 84/12 Page No.27 of 28 enticing.
46. In view of the evidence on record and above mentioned case laws, I am therefore of the view that prosecutrix was a fully grown up girl of about 18 years of age as on the date of incident, sensible and she voluntarily accompanied the accused on her own free will and therefore accused is entitled for the benefit of doubt in this case. I, therefore give the benefit of doubt to accused Ram Sagar and he is acquitted for the commission of offence punishable u/s 363/366 IPC. Accused is in JC in this case. He is directed to furnish personal bond in a sum of Rs.25,000/ with one surety in the like amount in view of the provisions contained u/s 437A Cr.PC. File be consigned to record room.
Announced in the open Court on 28.05.2013 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI State Vs. Ram Sagar FIR no. 84/12 Page No.28 of 28