Delhi District Court
Fir No. 340/05 State vs . Sanjay Kumar Sharma Page 1 Of 11 on 1 December, 2010
IN THE COURT OF SH. RAVINDER DUDEJA : ADDL. SESSIONS
JUDGE-03:NW:ROHINI:DELHI
SESSIONS CASE NO.116/09
FIR No. 340/05.
U/S: 363/366 IPC.
P.S. Adarsh Nagar.
STATE
Versus
SANJAY KUMAR SHARMA
s/o late Sh. Laddu Lal Sharma
r/o Bakhri Bazar, PS Bakhri Bazar,
Distt. Begu Sarai, Bihar
Date of Institution : 06-06-2006
Date of Argument : 01-12-2010
Date of Judgment : 01-12-2010
JUDGMENT
1. The prosecution case, as per charge sheet is that on 14.07.2005, complainant Amar Chand came at PS and lodged an FIR, U/s 363 IPC, stating that his daughters Kumari "S", aged about 16 years and Kumari "D", aged about 15 years (names withheld) had left the house, while he and his wife were sleeping. While, searching for his daughters, he came to know that Sanjay and Deepak, who were residing on rent in his neighbourhood were also missing from their house. He suspected that Sanjay and Deepak had enticed away his daughters.
FIR No. 340/05 State Vs. Sanjay Kumar Sharma Page 1 of 11
2. On 15.07.2005, SI Krishan Lal went in search of the girls. He was accompanied by the complainant. Both the girls were recovered from the custody of Sanjay and Deepak from ISBT, Anand Vihar Bus Stand. Sanjay and Deepak were arrested. They were sent to BJRM Hospital for medical examination. Both the girls were also sent to BJRM Hospital for their medical examination. After medical examination of the girls, section 376 IPC was added. During the investigation, Amar Chand handed over the school I-card of Kumari "D" and the higher secondary school mark sheet of Kumari "S". As per the said record, the date of birth of Kumari "D" was 10.03.1988 and that of Kumari "S" was 08.02.1985. Statements of both the prosecutrix were got recorded U/s 164 Cr. PC. Prosecutrix "D" in her statement U/s 164 Cr.PC, stated that Sanjay used to teach her and that on 11.07.2005, he took her to Noida, after threatening her. He then married her. She further stated that Sanjay did not do anything forcibly with her and that everything was done with her consent and she wanted to reside with Sanjay. Kumari "S" in her statement U/s 164 Cr.PC, stated that she had gone with Deepak with her own consent and had married him and resided with him as husband and wife. Since, the age of Kumari "S" was more than 18 years, no offence was made out, and therefore, Deepak was got discharged. The age of Kumari "D" as per her school I-card was 17½ years. In view of her statement U/s 164 Cr. PC, section 376 IPC was removed and charge sheet was filed only under FIR No. 340/05 State Vs. Sanjay Kumar Sharma Page 2 of 11 section 363/366 IPC against the accused Sanjay Kumar Sharma.
3. After compliance of section 207 Cr.PC, the case was committed to sessions court. Charge U/s 363/366 IPC was framed against the accused Sanjay Kumar Sharma, to which he pleaded not guilty.
4. In order to prove its case, the prosecution examined 12 witnesses. PW1 is Amar Chand. He is the father of the prosecutrix. He deposed that his elder daughter Kumari "S" was aged around 16 years and younger daughter Kumari "D" was aged around 14 years at the time of incident i.e. 11.07.2005. He further stated that in the morning of 11.07.2005, he found his daughters missing from the house. On the search of his daughters in the neighbourhood and on inquiry from his relatives and friends, he could not find any clue. He found that Sanjay and Deepak, who were residing in rented premises near his house were also missing since the morning of 11.07.2005. He then went to PS Adarsh Nagar and lodged the FIR, Ex.PW1/A. He further testified that accused Sanjay was found present at ISBT, Anand Vihar Bus Stand on 15.07.2005 with his daughter Kumari "D". His daughter was recovered from accused vide memo Ex.PW1/B. He proved the arrest memo of accused Sanjay, as Ex.PW1/C. He stated that he had handed over the age proof of his daughters to the police, which was FIR No. 340/05 State Vs. Sanjay Kumar Sharma Page 3 of 11 seized vide memo Ex.PW1/D. PW2 is HC John Reddy. He had taken both the prosecutrix to BJRM Hospital for medical examination. After medical examination, the doctor handed over the vaginal swab and underwear of both the prosecutrix, duly sealed and the sample seal, which was seized vide memos Ex.PW2/A & Ex.PW2/B. PW3 is HC Nagender Kumar, the Duty Officer. He had recorded FIR, Ex.PW1/A. PW4 is Sh. Hari Om Arora, PGT, Patrachar Vidhyalaya, BL Block, Shalimar Bagh. He produced the admission record of prosecutrix Kumari "D". He stated that as per admission record, her date of birth is 10.03.1988. The copy of admission register has been proved, as Ex.PW4/A and the original I-card and the school I-card, bearing the photograph of Kumari "D" has been proved, as Ex.PW4/B. PW5 is Ct. Anil Kumar. He took the accused Sanjay and Deepak to BJRM Hospital for their medical examination. The doctor handed over the exhibits to him and he handed over the same to I.O, which were seized vide memo Ex.PW5/A & Ex.PW5/B respectively.
PW6 is Kumari "S". She deposed that in the year 2002, she and her younger sister Kumari "D" were studying in 10th class. Accused Sanjay and Deepak, who were residing on rent in their neighbourhood used to give tuition to them. She stated that on 11th July, accused Sanjay and Deepak took her and her sister to Noida, saying that they FIR No. 340/05 State Vs. Sanjay Kumar Sharma Page 4 of 11 would bring them back after 1-2 hours. They took a room on rent in Noida, where they were kept for 2 days. She was raped by accused Sanjay and Deepak raped her sister Kumari "D" against their wishes for two days. She further stated that after two days, while they were returning with Sanjay and Deepak, they were apprehended by the police at Anand Vihar Bus Stand. She further stated that they were produced in court for statements U/s 164 Cr.PC and her statement Ex.PW6/A was recorded. She was declared hostile and was subjected to cross-examination by the Ld. APP. In cross-examination, she admitted that accused Sanjay had raped his sister Kumari "D" and Deepak raped her.
PW7 SI Krishan Lal is the I.O of this case. During the investigation, he recovered both the prosecutrix from accused Sanjay and Deepak from ISBT Anand Vihar Bus Stand. He had arrested the accused persons and got the prosecutrix and the accused medically examined from BJRM Hospital. He had got recorded the statements of both the prosecutrix U/s 164 Cr.PC and collected their age proof. He had also got conducted the bone age examination of the prosecutrix.
PW8 Sh. S.K. Gautam, ASJ. He had recorded the statement of the prosecutrix Kumari "D" and Kumari "S", which are Ex.PW6/A and Ex.PW8/A respectively.
PW9 is Dr. Shipra, Radiologist, from BJRM Hospital. She stated that after examination of the X-ray plates of Kumari "D", she gave the FIR No. 340/05 State Vs. Sanjay Kumar Sharma Page 5 of 11 opinion that the estimated bone age of Kumari "D" was between 18-19 years.
PW10 is Kumari "D". She deposed that she knew accused Sanjay, as he used to give tuition to her in the year 2005 and through him she and her sister Kumari "S" came to know one Deepak. She fell in love with Sanjay while her sister fell in love with Deepak. She further stated that on 11.07.2005, she and her sister accompanied the accused Sanjay and Deepak with their own consent. They took them to a house in Rohini, where they stayed for about 4 days. She had physical relations with accused Sanjay with her consent. She was declared hostile and was subjected to cross-examination. In cross- examination, she denied that her age was 15 years at the time of occurrence. She denied that accused Sanjay and Deepak took her and her sister by enticing them to Sector-6, Noida in a TSR. She denied that accused Sanjay had raped her or that Deepak had raped her sister. She admitted that in her statement before the Ld. MM she had stated that Sanjay had married her and Deepak had married her sister. According to her, she had become perplexed while giving statement U/s 164 Cr.PC, due to which she stated that the accused Sanjay took her away by threatening her, but in fact she had fallen in love with him and had gone along with him with her consent. She denied that at the time of incident, she was not in the age group of 20-21 years.
PW11 is Ct. Salaam. He is the witness of investigation, who FIR No. 340/05 State Vs. Sanjay Kumar Sharma Page 6 of 11 was present with the I.O at the time of recovery of the prosecutrix from the accused.
PW12 is Dr. Neeraj Chaudhary. He proved the MLC of the accused. He stated that as per the MLC, the accused was capable to perform sexual intercourse.
5. Statement of accused was recorded U/s 313 Cr. PC, wherein he stated that he is innocent. He stated that Prosecutrix "D", who was aged more than 18 years of age at that time, went with him at her own sweet will.
6. Arguments have been heard from Ld. APP as also from Ld. Defence counsel. Ld. APP, relying on the testimony of father of Prosecutrix and her school record, has argued that Prosecutrix was aged less than 18 years at the time of alleged occurrence and therefore she had no capacity to give consent to go with the accused. It is argued that PW6 Kumari "S" has supported the Prosecution story by deposing that accused Sanjay and Deepak took her and her sister Kumar "D" to Noida. Ld. advocate of accused has however argued that there is no clinching evidence with regard to age of the Prosecutrix Kumari "D" and further that Prosecutrix Kumari "D" herself has not supported the Prosecution case.
7. In the cases of offences of kidnapping and rape, the FIR No. 340/05 State Vs. Sanjay Kumar Sharma Page 7 of 11 primary question for consideration always remains the age of the Prosecutrix. The age is most relevant because the age of the Prosecutrix is a vital factor to find out if she had the capacity to give consent to go with the accused or to indulge in sexual act.
8. In her statement u/s 164 Cr. P. C., Prosecutrix Kumari "D" stated that accused Sanjay had a likening for her and that on 11th July he took her to Noida after extending threats to her. He then married her. She stated before Ld. Metropolitan Magistrate that Sanjay had not done anything forcefully with her and whatever happened, had happened with her consent and that she wanted to live with Sanjay. Amar Chand, father of Prosecutrix, while appearing as PW1, deposed that age of the Kumari "D" was 14 years on 11-07-2005 but in cross- examination he admitted that her daughter Kumari "D" was about 18 years on the day of incident. Admittedly, no birth certificate of Kumari "D" has been produced. There are contradictory statements of father of Prosecutrix regarding her age. As per school record proved by PW4 Hari Om Arora, date of birth of Kumari "D" is 10-03-1988. In cross- examination, PW4 stated that he cannot say whether at the time of admission, school had taken age proof of Kumari "D". According to him, at the time of admission, school takes all the necessary documents including age proof but he did not specify nor produced the documents regarding the age which were obtained at the time of FIR No. 340/05 State Vs. Sanjay Kumar Sharma Page 8 of 11 admission of Kumari "D" in the school. Sh. Amar Chand (PW4) in cross-examination states that he had given only the affidavit of age at the time of admission as he was not having any birth certificate. According to him, he gave the date of birth of his daughter to the police as 10-03-1988 but he gave this date out of nervousness and that at that time he was not in senses because of disappearance of his daughter. Thus, there is no clinching evidence to prove that date of birth of Prosecutrix Kumari "D" is 10-03-1988.
9. The Investigating Officer had also got conducted the ossification test for age determination of the Prosecutrix and as per report Ex. PW9/A, the age of Kumari "D" was 18 to 19 years. The Hon'ble Himachal Pradesh High Court in a case reported in 1987 Crl. L. J. 1266, Paramjit Singh Vs. State of Himachal Pradesh held that in a case of ossification test, the margin of error on either side varies from 1½ to 2 years and benefit shall always go to the accused. In this case, the radiologist ascertained the age of Kumari "D" to be between 18 to 19 years and therefore giving the benefit of 1½ to 2 years to the accused, it is for sure that Kumari "D" was more than 18 years at the time of alleged occurrence.
10. In her testimony in the Court, Kumari "D" deposed that she had fallen in love with accused Sanjay and that on 11-07-2005 FIR No. 340/05 State Vs. Sanjay Kumar Sharma Page 9 of 11 accompanied him with her own consent and had physical relations with him with her consent. She was declared hostile and was subjected to cross-examination. In cross-examination, she denied that her age was 15 years at the time of occurrence. She denied that she gave her age as 15 years to the police. She denied that she and her sister were enticed away by accused Sanjay and Deepak. According to her, at the time of giving statement u/s 164 Cr. P. C., she became perplexed and therefore stated that accused Sanjay had taken her away by threatening her but in fact she had fallen in love with him and gone with him with her consent. Thus, the cross-examination of Kumari "D" by Ld. APP has not yielded anything in support of the Prosecution from which it can be inferred that Prosecutrix was kidnapped or enticed away by the accused.
11. PW6 Kumari "S" although stated in her examination in chief that accused Sanjay and Deepak took her and her sister to Noida saying that they would bring them back after 1--2 hours but they were kept in a room for two days in Noida where accused Sanjay raped her and Deepak raped her sister. She too was declared hostile and in the cross-examination conducted by Ld. APP she stated that accused Sanjay had raped on her sister and accused Deepak raped her. In cross-examination conducted by defence counse, she stated that she had correctly narrated the facts and her statement u/s 164 Cr. P. C. FIR No. 340/05 State Vs. Sanjay Kumar Sharma Page 10 of 11 She admitted that she had stated in Ex. PW6/A that she was in love with Deepak and had married him and lived with him as husband and wife. It is evident that PW6 gave contradictory statements at different intervals. In her statement u/s 164 Cr. P. C., she exonerated Deepak by stating that she had married with him and had relations with him as husband and wife while in examination in chief she states that accused Sanjay had raped her but on being cross-examination by Ld. APP, she states that accused Deepak raped her. Thus, testimony of PW6 does not appear to be trustworthy. Moreover, Prosecutrix Kumari "D" herself has stated that her age was more than 18 years and that she went with accused Sanjay with her own consent. It is therefore clearly a case of elopement where the Prosecutrix Kumari "D", who is proved to be aged more than 18 years, had gone with the accused with her own consent. It is not a case of taking away or enticing away a minor. In my opinion, Prosecution has failed to prove its case against accused. Accused is accordingly acquitted. His bail bond is cancelled. Surety is discharged. Documents of surety, if any, be released after cancellation of endorsement. File be consigned to Record Room.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE: NORTH-WEST:03:ROHINI:DELHI ANNOUNCED IN THE OPEN COURT ON 01.12.2010 FIR No. 340/05 State Vs. Sanjay Kumar Sharma Page 11 of 11