Delhi District Court
Judgment In The Case Of Sonu vs State (Nct) Of Delhi, 2010 (2) on 25 July, 2012
IN THE COURT OF MS. R. KIRAN NATH
ASJ 01, SOUTH DELHI, SAKET COURTS
S. C. No. 36/12
Unique Case ID No. R0122782012
State
Vs.
1. Deepak
S/o Late Bihari Lal
R/o Near Water Tank, Jhuggi Mahipal Pur
New Delhi
2. Rohit @ Lata
S/o Late Bihari Lal
R/o Near Water Tank, Jhuggi Mahipal Pur
New Delhi
FIR No. : 508/11
P.S. : Mehrauli
U/S : 363/368/376 IPC
Date of Institution : 26.05.2012
Date of Judgment : 25.07.2012.
J U D G M E N T
1. Both the accused have been been charged with and have faced trial for having committed offence under sections 363/368/376 IPC.
FIR No. : 508/11 PS Mehrauli 1
2. It is the case of the prosecution that the FIR in this case was registered on the complaint of Shankar wherein he has stated that on 02.12.2011 at about 3.00 pm his daughter (prosecutrix) aged 14 years had gone with her younger sister Jyoti on a cycle rickshaw for fetching water from Ambedkar Colony, Andheriya Mode. That Jyoti told him that while Sapna was filling water, accused Deepak took prosecutrix on his motorcycle and did not come back. During investigations, prosecutrix was found and accused Rohit was arrested. Medical examination of the prosecutrix was got conducted and her statement u/s 164 Cr.PC was recorded on 24.03.2012 wherein she stated that on 2nd date of a month she and her sister had gone to fetch water from Pahari and after sometime Rohit and Deepak had also came there; that Rohit pressed her mouth and Deepak took her on his motorcycle to Mahipalpur to the house of one Meter where Deepak committed rape on her and confined her in a room. She also stated that accused Deepak committed rape on her 23 times. After completion of requisite investigation charge sheet was filed in the court.
3. In view of the allegations against the accused in the charge sheet, charge under section 363/368/376 IPC was framed against accused Deepak and under section 363 against accused Rohit, to which they both pleaded not guilty and claimed trial.
4. In support of its case prosecution has examined three FIR No. : 508/11 PS Mehrauli 2 witnesses.
5. PW1 is the prosecutrix herself, who testified that accused Deepak was her jija (brother in law) and she went along with the accused to roam around in the city and stayed with the accused for about four months and kept on moving from one place to another ; that in the meanwhile her father lodged her missing report with the police and she along with the accused returned to her home; that she did not know what was recorded by the police in her statement as she was illiterate; that she did not give any statement to the Ld. MM ; that accused Deepak did not do any wrong act with her and she did not have any complaint against any of the accused.
6. PW 2 is Ms. Jyoti, sister of the prosecutrix who testified that she along with her sister went to fetch water in a rickshaw to Andheria Mod; that her sister went along with the accused in a bus of her own free will and consent and no force was used.
7. PW 3 is Sh. Shankar, father of the prosecutrix who testified that about 56 months back, her daughter (prosecutrix) went along with, his son in law Deepak (accused) ; that they came back after about four months; that her daughter went along with the accused of her own consent and free will and he did not have any complaint against any of the accused.
8. It is seen that proseuctrix who had been examined as PW 1 in this case, had turned totally hostile to the case of prosecution. FIR No. : 508/11 PS Mehrauli 3 This witness was declared hostile by the Ld. Addl PP for State and was cross examined. She has denied the suggestion of Ld. Addl. PP for State that the accused persons had kidnapped her and thereafter accused Deepak committed rape upon her several times .
9. It is also seen that both the witnesses (PW 2 Jyoti and PW 3 Shankar) of the abduction and rape of the prosecutrix have turned totally hostile to the case of prosecution and categorically stated that prosecutrix went away with the accused of her own free will.
10. Ld. Addl. PP for State however, submitted that as per the investigations, the age of the prosecutrix was stated to be 14 years of age as told by her father.
11. On the other Ld. Counsel for the accused submits that prosecutrix had not produced any birth certificate or SLC to prove her age. The only documentary evidence on record is the ossification test report which is admitted by counsel for the accused. which is marked P1. As per the said report, the age of the prosecutrix was 16 to 18 years.
12. Ld. Counsel for the accused has placed before me the judgment in the case of Sonu Vs State (NCT) of Delhi, 2010 (2) JCC 1337 in which it was held that it was settled that the age determined through radiological examination is not exact and may vary by two years on either side. Margin of error in such a radiological examination is two years on either side and FIR No. : 508/11 PS Mehrauli 4 according to the settled principles of criminal jurisprudence benefit of this variation must go to the accused; if such benefit is extended to accused, age of the prosecutrix can be taken above than 16 years.
13. In the case of Jaya Mala Vs Home Secretary, Government of Jammu & Kashmir & Ors., AIR 1982 SC 1296, it was held by Hon'ble Supreme Court that margin of error in age ascertained by radiological examination is to be taken as two years on either side.
14. Hence, giving the margin of two years of age to the prosecutrix determined radiologically it could be said that the prosecutrix was 18 years of age at the time of incident and could have given her consent. The evidence proves that sexual relation between the accused and the prosecutrix was with the consent to the prosecutrix.
15. That aside, father of the prosecutrix has been examined as PW 3 who has categorically stated that the age of her daughter / prosecutrix was 19 years at the time of incident and not 14 years. He also testified that he is illiterate and did not know what was written in the statement recorded by the police; that her daughter / prosecutrix went along with the accused with her own free will and consent.
16. In view of above judgment and the facts and circumstances FIR No. : 508/11 PS Mehrauli 5 of the case, I am of the opinion that it has emerged on record that that prosecutrix was major at the time of incident and had accompanied the accused out of her own will and had physical relation with her consent.
17. In these circumstances, there is no point in recording further formal evidence as the same cannot lead to the conviction of the accused persons. PE is thus, closed. Statement of accused is also dispensed with. Both the accused are thus, acquitted of the charges levellved against them.
18. File be consigned to record room.
Announced in the open court
on 25th July 2012 (R. Kiran Nath)
ASJ01 South/ New Delhi.
FIR No. : 508/11 PS Mehrauli 6