Delhi District Court
The State vs . on 25 January, 2017
IN THE COURT OF SH. PAWAN KUMAR MATTO:
ADDL. SESSIONS JUDGE01 (WEST):
TIS HAZARI COURTS: DELHI.
SC No.: 206/15 (Old No.)
56605/2016 (New No.)
FIR No.: 207/13
PS : Kirti Nagar
U/S : 363/366 of IPC
The State
(Govt. of NCT of Delhi)
Vs.
Deepak Kumar
S/o Sh. Vishnu Paswan.
R/o Village Lodipur, PO & PS Khusrupur,
District Patna, Bihar.
...... Accused
Date of Institution : 10.11.2015
Date of arguments : 25.01.2017
Date of judgment : 25.01.2017
JUDGMENT:
1 Brief facts of the case are that, in the case in hand, the FIR no.207/13 has been registered u/s 363 of IPC on the statement of the father of the prosecutrix 'RP' (presumed name of the father of prosecutrix), wherein, he has alleged that he lives on the address, as mentioned in his complaint Ex.PW2/A, with his wife, three sons & one daughter i.e. prosecutrix 'P' (presumed name of the prosecutrix) and on dated 24.06.2016 his wife had gone to her place of work & at about 11.00 am, he returned from his duty and found that prosecutrix 'P' (presumed name of the prosecutrix) was missing and the age of the prosecutrix is about 17years. He tried to search her and came to understand that the FIR No.207/13 PS Kirti Nagar State Vs. Deepak Kumar Page 1 of 9 prosecutrix had gone with accused Deepak, who lives in his neighbourhood, and he has also alleged that he had earlier tried to make understand this accused to keep away from the prosecutrix & he has also suspected that this accused Deepak had induced away to his daughter i.e. prosecutrix & he has also suspected that another boy Mukesh would also be there with them and prayed for taking legal action against this accused Deepak. On recovery of the the prosecutrix, her statement was recorded and accused was arrested on dated 19.07.2014 & he was granted on bail on dated 16.07.2015.
2 On completion of the investigation, the chargesheet was filed U/s 363/366 IPC. Copy of charge sheet was supplied to the accused in the Court of Committing Magistrate and thereafter, it was committed to the Court of Sessions & it was assigned to this court for trial. And, on finding of the primafacie case, this Court had framed the charges U/s 363/366 of IPC against this accused, to which, the accused pleaded not guilty and claimed trial. Accordingly, the accused was put on trial and the matter was fixed for today for the evidence of the prosecution.
3 In order to prove its case, prosecution has examined two witnesses today.
4 Prosecutrix 'P' has been examined as PW1 and during her examination in chief, she has correctly identified to accused Deepak and stated that he is her husband and when she was asked as to where this accused had taken her in June, 2013 and she has deposed that she had gone with accused in the month of JUNE 2013, as she wanted to marry with this accused and accused Deepak was also desirous to marry with her, so, they went Bihar and when this prosecutrix was asked as to on what pretext this accused had taken her in Bihar, she has deposed that "MAIN INKO BOLI THI MAIN AAPKO PASAND KARTI HUIN AUR MUJHE LE CHALO. PHIR HUM BIHAR MEIN EK MANDIR HAI PHIR WAHAN PAR JAAKAR HUMNE SHAADI KAR LI". This witness has also been cross FIR No.207/13 PS Kirti Nagar State Vs. Deepak Kumar Page 2 of 9 examined by the Ld. Counsel for accused and during her crossexamination by the Ld. Counsel for accused, she has admitted it to be correct that she had gone with accused Deepak voluntarily and deposed that "HAAN MAIN APNI MARZI SE INKE SAATH GAYI THI MENE HI INKO BOLA THA KI MUJHE LE CHALO". She has also admitted it to be correct that she had gone with accused Deepak for the reason that her father was desirous to marry her with some other person without her consent and also admitted it to be correct that accused Deepak never pressurized her to marry with him and also deposed that she had voluntarily married with accused Deepak. She has also admitted it to be correct that she had told to her parents that she loved to this accused Deepak and she was also willing to marry with this accused Deepak and also deposed that "HAAN MENE BATAYA THA PAR MERE PARENTS KO LAGTA THA KI DEEPAK MUJHE SAHI SE NAHI RAKH PAYEGA PAR AB HUM UNKE SAAMNE REHTE HAI TO UNKO WISHWAS HO GAYA".
She has also admitted it to be correct that her father had lodged the false complaint against this accused and she has further admitted it to be correct that she has never been kidnapped by the accused.
5 Whereas, the complainant, who is the father of the prosecutrix 'RP' (presumed name of father of prosecutrix) has been examined as PW2 and he has deposed that he has filed the complaint Ex.PW2/A to the police that prosecutrix had gone to the school but she did not return & he inquired about the prosecutrix from the neighbours and his neighbours told to him that accused was also found to be missing from his house, so, he thought that prosecutrix had also gone with this accused Deepak. At that time, the age of the prosecutrix is about 16 years. So, he had lodged the complaint against the accused Deepak. This witness has also been crossexamined by the Ld. Counsel for accused and during his crossexamination by the Ld. Counsel for accused, he has admitted it to be correct that at the time of filing of the complaint Ex.PW2/A, he told the age of the prosecutrix as 17 years and he does not know the date of birth of the prosecutrix. He has FIR No.207/13 PS Kirti Nagar State Vs. Deepak Kumar Page 3 of 9 denied that prosecutrix was major at the time of her elopement. He has admitted it to be correct that the prosecutrix had gone with the accused with her free consent. He had also admitted it to be correct that the prosecutrix had got married with the accused and they are on meeting terms with the accused and the prosecutrix is leading happy married life with this accused. He has further admitted it to be correct that he had lodged the complaint Ex.PW2/A under some confusion and further admitted it to be correct that at the time of filing of his complaint Ex.PW2/A, he was not aware whether the prosecutrix had gone with the accused voluntarily, so, he had filed the complaint against the accused.
6 I have heard the Ld. Counsels for the parties.
7 After examination of PW1 & PW2, the Ld. APP for the State has submitted that the matter may be adjourned for examination of the remaining prosecution's witnesses, whereas, Ld. Counsel for accused has opposed the same and submitted that since, the prosecutrix & her father (complainant) have been examined & since the prosecutrix has failed to support the case of the prosecution, so, he has prayed for closing the evidence of the prosecution & also prayed for acquittal of the accused.
8 Since, the prosecutrix has been examined & crossexamined today and the perusal of the record shows that, in the case in hand, FIR was registered on the complaint of the father of the prosecutrix, which is Ex.PW2/A, wherein, he has alleged that the prosecutrix 'P' (presumed name of the prosecutrix) had gone missing, who is about 17 years, & he suspected that this accused Deepak had induced away to his daughter i.e. prosecutrix, whereas, at the time of his crossexamination, he has admitted it to be correct that the prosecutrix had gone with the accused with her free consent and further admitted it to be correct that he had lodged the complaint Ex.PW2/A under some confusion and further admitted it to be correct that at the time of filing of his complaint Ex.PW2/A, he was FIR No.207/13 PS Kirti Nagar State Vs. Deepak Kumar Page 4 of 9 not aware whether the prosecutrix had gone with the accused voluntarily, so, he had filed the complaint against the accused, whereas, Prosecutrix 'P' has been examined as PW1 and she has deposed that she had gone with the accused voluntarily and she has never been kidnapped or pressurized to marry with accused. So, in the considered opinion of this court, it will be futile to adjourn the matter for examination of the remaining witnesses of the prosecution. Accordingly, the evidence of the prosecution is closed by order, as, in the considered opinion of this court, no fruitful purpose would be served to examine the remaining witnesses of the prosecution, who are formal in nature, as the case of the prosecution cannot be resulted in conviction of the accused, even if, remaining witnesses of the prosecution are allowed to be examined.
9 Since, nothing incriminating evidence has come on the record against the accused Deepak, therefore, the statement of the accused U/S 313 Cr.P.C is dispensed with.
10 Since, Their Lordship of the Hon'ble Supreme Court was pleased to hold in case 'Suraj Mal Vs. State (Delhi Administration) AIR 1979 Supreme Court 1408' was pleased to hold that:
"it is well settled that where witnesses make two inconsistent statements in their evidence either on one stage or at two stages, the testimony of such witness become unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witness."
11 Their lordship of High Court of Delhi in Rameshwar Giri V. State, 211 (2014) Delhi Law Times, 508, was pleased to observe : FIR No.207/13 PS Kirti Nagar State Vs. Deepak Kumar Page 5 of 9 "16. As held by the Supreme Court in AIR 1965 SC 942, S. Varadarajan V. State such an act would tantamount to 'taking'. The observations of the Apex Court in this context are as under:
"The offence of 'kidnapping from lawful guardianship' is defined thus in the first paragraph of Section 361 of the Indian Penal Code:
"Whoever taken or entices any minor under sixteen years of 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 lawful 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'
8. It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping.........11. It must, however, be borne in mind that there is a distinction between 'taking : and allowing a minor to accompany a guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful quardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.
12. It would, however, be sufficient if the prosecution establishes that through immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to 'taking'."
"17. This version is further fortified by the fact that the victim was admittedly known to the accused as he was residing in the same FIR No.207/13 PS Kirti Nagar State Vs. Deepak Kumar Page 6 of 9 street since the last 2 years. The fact that the accused was known to the victim is also admitted by both PW6 and PW7 i.e. the mother and father of the victim. PW5 had accompanied the appellant for sightseeing; they did sightseeing for one hour in Delhi; then by a TSR, the appellant took her to the railway station; people were gathered there to purchase tickets. Tickets were purchased by the appellant from the railway station from where he took her to Bihar which would be a more than one day journey. The victim stayed in the village of the appellant 23 days. She was never threatened by the persons living in that house/ 56 ladies were also present. Other persons from the village also came to meet her. The MLC of the victim also shows that there was no injury upon her person. This corroborates the argument of the Learned Counsel for the appellant that the victim was not subjected to any force.
18. This Court thus necessarily draws the conclusion that the victim was a consenting party with the accused. The offence of rape as defined under Section 375 of the IPC (unamended) is not made out as for the purposes of rape to qualify as a minor, the victim should be less than 16 years. As noted supra, the victim was aged 15 years & 9 months on the date of the offence i.w. just about three months short of the age of 16. Being in the age of discretion; this Court is of the view that she was conscious of her act in accompanying the accused and it cannot be said to be an act of force. The accused is entitled to an acquittal for the offence under Section 376 of the IPC. He is accordingly acquitted of the said charge.
12 Since, the prosecutrix has been examined & crossexamined today and the perusal of the record shows that, in the case in hand, FIR was registered on the statement of the father of the prosecutrix, wherein, he has alleged that the prosecutrix 'P' (presumed name of the prosecutrix) had gone missing, who is about 17years, & he suspected that this accused Deepak had kidnapped away to his daughter i.e. prosecutrix, whereas, at the time of his crossexamination, he has admitted it to be correct that the prosecutrix had gone with the accused with her free consent and further admitted it to be correct that he had lodged the complaint Ex.PW2/A under some confusion and further admitted it to be correct that at the time of filing of his complaint Ex.PW2/A, he was not aware whether the prosecutrix had gone with the accused voluntarily, so, he had filed the complaint against the accused, whereas, Prosecutrix 'P' has been examined as PW1 and she has deposed FIR No.207/13 PS Kirti Nagar State Vs. Deepak Kumar Page 7 of 9 that she had gone with the accused voluntarily and she has never been kidnapped or pressurized to marry with accused. Thus, from the testimonies of the complainant and also of the prosecutrix, it is clear that accused Deepak had not enticed, induced or kidnapped to the prosecutrix and since the complainant has also admitted in the court that he had filed the complaint Ex.PW2/A under some confusion and the prosecutrix had gone voluntarily with the accused and the prosecutrix has admitted that she was never kidnapped or pressurized to marry with accused Deepak, and thus, the testimony of the complainant is found to be inconsistent to the contents of his complaint Ex.PW2/A and testimony of PW1 is also found to be inconsistent to the contents of complaint. No doubt that the prosecutrix was a minor girl on the date of filing of the complaint, but, the basic ingredients of kidnapping are found to be lacking and the prosecutrix has no where alleged that the accused had induced, enticed or kidnapped her, whereas, this prosecutrix had asked to the accused to take her and the testimony of complaint is also found to be inconsistent to the contents of his complaint Ex.PW2/A. Since, as per the record of the school, the date of birth of the prosecutrix is 04.10.1999 and the prosecutrix, when examined in this court, has admitted that she has studied upto 12th class. No doubt that on the date of such elopement, the prosecutrix was a minor girl, but, she is an educated & urban girl at the verge of maturity and she has not been induced, enticed or kidnapped by the accused. Even otherwise, during his crossexamination, the complainant has also admitted that this prosecutrix had gone with accused voluntarily.
13 So, taking into consideration the material inconsistencies & contradictions in the testimonies of PW1 & PW2, this court is inclined to hold that the testimonies of PW1 & PW2 are inconsistent, suspicious, unreliable & untrustworthy, so, the same do not inspire any confidence, and benefits of doubt is liable to be given to accused. Since, the charges against this accused were framed u/s 363/366 of IPC, and the prosecutrix has admitted, when examined in this Court, that she has never been kidnapped or forced to FIR No.207/13 PS Kirti Nagar State Vs. Deepak Kumar Page 8 of 9 marry by accused Deepak. Therefore, I am inclined to hold that the prosecution has failed to prove that accused has committed the offences punishable u/s 363/366 of IPC beyond reasonable doubt. Accordingly, accused Deepak Kumar is acquitted of the charges framed against him. The accused Deepak Kumar is ordered to furnish the bail bond in the sum of Rs.25,000/ with one surety of like amount, as per the provision of Section 437(A) of Cr.P.C, for next six months to ensure his presence in the Hon'ble appellate court and on filing of bail bond and surety bond, the file be consigned to the Record Room.
Announced in the open court (PAWAN KUMAR MATTO)
today i.e. on 25.01.2017 Additional Sessions Judge01(West)
Special Court Under POCSO Act /
25.01.2017
FIR No.207/13 PS Kirti Nagar State Vs. Deepak Kumar Page 9 of 9