Delhi District Court
State vs . Kanwaljeet Singh on 29 September, 2014
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 43/14)
Unique ID case No. 02404R0049242014
State Vs. Kanwaljeet Singh
FIR No. : 184/13
U/s : 363/366A IPC & 8 of POCSO Act
P.S. : Aman Vihar
State Vs. Kanwaljeet Singh @ Manish
S/o Sh. Sukhvinder Singh
R/o House no. A2/305,
Sultan Puri, Delhi.
Date of institution of case 07.02.2014
Date of pronouncement of judgment : 29.09.2014
JUDGMENT:
1. Briefly stated the case of the prosecution that on 28.04.2013, victim T went missing from her house. The father of the victim T went to PS Aman Vihar and filed a complaint regarding missing of his daughter T, pursuant to which, the present FIR was registered against unnamed person(s) as father of the victim did not have suspicion on any particular person for having enticed away/kidnapped his daughter. During the course of investigations, IO W/SI Asha Devi made efforts to S.C. No. 43/14 : State vs. Kanwaljeet Singh : Page 1 of 16 search for victim T through publication and publicity in printed as well as electronic media. On 05.05.2013, victim T was recovered from the house of the accused Kanwaljeet, at instance of Smt. Shyam Kumari, mother of victim T. The accused was also arrested. The victim as well as accused were sent for medical examination, however, the victim refused for her gynecological examination. The IO also got statement of the victim T recorded u/s 164 Cr.P.C on 06.05.2013. In the said statement, the victim stated that she had voluntarily gone to the house of the accused Manish (accused Kanwaljeet) and that she wanted to marry him and to stay with him. On 09.05.2013, the victim was produced before concerned CWC, from where, she was handed over in custody of her mother. During the course of further investigations, IO obtained relevant documents of the age of the prosecutrix from her school, as per the particulars given by the parents of the prosecutrix. As per the school certificate, the date of birth of the prosecutrix was 08.07.1995, which brought her within the scope of definition of 'child" under the POCSO Act. Accordingly, the charge sheet was prepared and filed in this court.
2. After hearing the arguments on the point of charge, charges for the offence under Sections 363/366 IPC were framed against the accused Kanwaljeet Singh @ Manish. However, accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
3. The prosecution has examined ten witnesses in support of its case.
4. The PW1, Sh. Lokesh Kumar, Attendant, produced record from Nigam S.C. No. 43/14 : State vs. Kanwaljeet Singh : Page 2 of 16 Pratibha Balika Vidhyala, Sultan Puri, P4 (First Shift), Delhi, wherein victim child/prosecutrix T was admitted in first class. The PW1 proved copies of admission form, affidavit as well as photocopy of MCD birth certificate submitted by mother of the victim child, as Ex. PW1/A, Ex. PW1/B and Ex. PW1/C, respectively and stated that as per the school record, the date of birth of the victim/prosecutrix was 08th July 1995. The witness also proved the relevant entry in admission register qua the victim/prosecutrix as Ex. PW1/D and the original certificate issued by Principal of the said school as Ex. PW1/E. During crossexamination, the witness termed it correct that sex of the child had been mentioned as 'boy' in the MCD birth certificate. He further stated that he was not the admission incharge and showed his lack of knowledge about the formalities done at the time of admission of the child.
5. The PW2, SI Janak Raj, deposed that on 04.05.2013, complainant Sh. Rajbir Singh, came to PS and got his statement Ex. PW2/A recorded regarding the missing of his daughter T, aged about 17 years, and that he made his endorsement and prepared rukka Ex.PW2/B thereupon and got the case registered vide FIR No.184/13 u/s. 363 IPC. He further stated that after registration of case FIR, further investigations of the present case was entrusted to some other officer as per the directions of SHO.
6. The PW3, HC Sanjeev Kumar, was posted as the duty officer at PS Aman Vihar at the relevant time and had registered the case FIR in the present case. He proved the endorsement made by him on rukka as Ex. PW3/A, computerized S.C. No. 43/14 : State vs. Kanwaljeet Singh : Page 3 of 16 copy of FIR as Ex.PW3/B and certificate u/s 65 B of the Indian Evidence Act as Ex. PW3/C.
7. The PW4, Sh. Rajbir is the father of the victim child T and he deposed that victim child T was his fifth born child and that at the time of incident, she was less than 18 years of age and that his wife had expired on 16.04.2014. He further deposed that on 28.04.2013 at about 1:30 PM, his daughter T went missing from the house without disclosing anything to anyone and that he made efforts to search for his daughter T at Safdarjung Hospital, where his elder daughter had delivered a child, and at the house of his brother, situated at Nand Nagri and also here and there, but no clue was found and that thereafter, he went to PS and got recorded a missing report/complaint Ex. PW2/A. In reply to a leading question put by learned Addl. PP, the witness stated that age of his daughter T was one month less than 18 years, when she went missing and not 17 years 9 months as stated in the complaint Ex.PW2/A. He volunteered to state that his wife was with him, when he had gone to file complaint and the age of 17 years and 9 months was mentioned by his wife.
During crossexamination by learned defence counsel, the PW4 stated that his daughter T was born at home and that he did not get her date of birth recorded in MCD, etc. and also did not hand over any MCD birth certificate of his daughter to the IO. He volunteered to state that he had given particulars of the school, in which her daughter T was studying to the IO. He further stated that it was possible that his daughter T was above 18 years of age, when she went missing as she was studying in 12th class at that time. He further deposed that his daughter S.C. No. 43/14 : State vs. Kanwaljeet Singh : Page 4 of 16 Neelam, who was elder to his daughter T, may be 2 ½ - 3 years older than child T. He showed his lack of knowledge, whether any birth certificate of his daughter T was submitted in the school at the time of her admission or not. He volunteered to state that his wife might have submitted the same. The witness could not tell the date of birth of any of his children.
8. The PW5, Ms. Shashi Sharma, was member of the Nari Avam Bal Vikas Sansthan and had counseled the victim child at PS Aman Vihar on 05.05.2013 and deposed regarding the same. She further deposed that during counseling, the victim T told her that she (victim T) went away from her house with her own consent.
9. The PW6, is the victim child T and she deposed that she left her parents house i.e. 28.04.2013 and since then, she was residing with the accused. She further deposed that she wanted to marry the accused and to stay with him. She further deposed that she did not want to go to her parental house and did not want to say anything else. She further deposed that she was recovered from the house of accused at A2/305, Sultanpuri, Delhi, at the instance of her mother on 05.05.2013 and that thereafter, she was taken for her medical examination to the hospital, but she refused for the same. She further deposed that she had given this statement earlier also to the police as well as learned MM and proved her statement u/s.164 Cr.P.C as Ex.PW6/A. During crossexamination by learned defence counsel, the witness stated that she had stated her age as told to her by her mother. She further S.C. No. 43/14 : State vs. Kanwaljeet Singh : Page 5 of 16 termed it correct that her age was 20 years and that she had stated the same as 19 years on the asking of her mother. In reply to a court question, the witness replied in affirmative that her mother had passed away 6 / 7 months ago.
During further crossexamination, the witness stated that she had completed 19 years of age as on 08.07.2014 and further termed it correct that accused had told her to go back to her parental house, despite which she continued to stay at his home of her own free will and that her parents did not know her age or age of any of her siblings since there were seven of them. She also termed it correct that sometimes, her parents used to tell her that her age was 18 years and at other times, they (her parents) stated that she was 19/20 years old.
10. The PW7, W/SI Asha Devi, is the investigating officer of the present case and she deposed that on 04.05.2013, after registration of the case FIR, further investigation of the present case was entrusted to her and that she got flashed the WT Message, and uploaded the photograph of the victim on Zipnet. She further deposed that on 05.05.2013, Smt. Shyam Kumari, mother of the victim child T came to PS and informed her that she (Smt. Shyam Kumari) had received a call from her daughter T, who told her that she (victim T) was present at H.No A2/305, Sultan Puri, Delhi. The PW7 further further deposed that on receipt of this information, she along with Smt. Shyam Kumari and Ct. Sushil went to the afore said address, from where victim T was recovered on the identification of her mother Shyam Kumari vide recovery memo Ex.PW7/A. The PW7 further deposed that at that time, accused Kanwaljeet was also present there and that S.C. No. 43/14 : State vs. Kanwaljeet Singh : Page 6 of 16 thereafter, accused and victim were brought to the PS. The PW7 then deposed about medical examination of the victim child at SGM Hospital, about counseling of the victim child by the NGO and about recording of the statement of Smt. Shyam Kumari and the victim u/s.161 CrPC. The PW7 also deposed about arrest and personal search of the accused and about his making a disclosure statement and proved the same as Ex.PW7/B (arrest memo), Ex.PW7/C (personal search memo) and Ex.PW7/D (disclosure statement of the accused), respectively. She also deposed about medical examination of the accused at SGM Hospital and about sending the victim to Nari Niketan as victim had refused to go back to her parental house. The PW7 further deposed about getting the statement of the victim child recorded u/s 164 Cr.P.C on 06.05.2013 and proved her application for getting the statement of victim recorded as Ex.PW7/E and her application for obtaining the copy of the statement of the victim child T u/s.164 Cr.P.C as Ex.PW7/F respectively.
She further stated that on 08.08.2013, she also obtained the documents from the school wherein the victim T was studying i.e. attested photocopies of admission form, affidavit and birth certificate and the copy of the relevant entry of the admission register of the victim and had taken these documents into possession and seized the same vide seizure memo Ex.PW7/G and that she also obtained the school certificate giving details of birth of the child T from the concerned school on 22.07.2013. She further deposed that after her transfer, further investigations of the present case was entrusted to W/SI Neeraj.
During crossexamination, the PW7 denied that the victim child had gone with the accused of her own free will or that she had come to PS of her own and S.C. No. 43/14 : State vs. Kanwaljeet Singh : Page 7 of 16 had informed her (PW7) all these facts. She further denied that accused has been falsely implicated in the present case at the instance of parents of the victim child even though victim repeatedly told her that she had done everything with her own sweet will. She further denied that the victim was above 18 years of age at the time of the incident or that the same was also reflected from the fact that the MCD Birth Certificate annexed with the school certificate found mention of the gender of the child as 'ladka' (male). She termed it correct that she had not verified the genuineness of the MCD birth certificate of the victim child.
11. The PW8, Ms. Meenu Kaushik, learned MM, had conducted the proceedings u/s.164 CrPC and deposed regarding the same. She proved the application filed by IO for recording of statement of prosecutrix u/s.164 Cr.P.C as Ex.PW7/E ; the certificates given by PW8 as Ex.PW8/A and application for supply of copy of said statement, filed by IO, as Ex. PW7/F. The statement of the prosecutrix recorded by PW8 had already been proved as Ex. PW6/A.
12. The PW9, Sh. Neeraj Yadav, Assistant Public Health Inspector, produced the record from office of Sub Registrar, and deposed that as per record, a male child 'T' was born to Smt. Shyam Kumari and Rajbir Singh, both r/o B281, Kirari, Aman Vihar, Delhi, at home, on 08.07.1995 and the same was got registered in their office on 17.07.1995. He proved the copy of relevant entry no. 2246 in birth record register as Ex. PW9/A. He also proved the copy of the MCD Birth Certificate of the child as Ex. PW1/C. As it was observed that the record produced by PW9 found mention of the child as "male", some court questions S.C. No. 43/14 : State vs. Kanwaljeet Singh : Page 8 of 16 were put to him to elicit truth, in reply to which, the PW9 deposed as under : Court Question: Is it correct that the entry produced by you today pertains to a 'male child'?
Ans. Yes.
Court Question: Have there been instances, to your knowledge wherein, the sex of the child has been wrongly mentioned in the record of the MCD?
Ans. I have not come across such a case/instance during my service of about 16 years.
Court Question: Is it correct that if the parents/guardian or some other authority like court or SDM directs you to make some change in the entry of birth like adding the name of the child in the birth record maintained by the department then the same is reflected from the relevant entry of the register of birth maintained at your office alongwith the date on which such addition/alteration/correct is made?
Ans. Yes, it is correct.
Court Question: Did the parents of child 'T', whose record you have produced today, make a request to the SubRegistrar for correction in the gender of the child i.e did they make a request that the sex of the child be mentioned as 'girl' instead of 'boy'?
Ans. No such request from the parents of the child 'T' is reflected from the record brought by me today in the court.
S.C. No. 43/14 : State vs. Kanwaljeet Singh : Page 9 of 16 During crossexamination by learned defence counsel, the witness termed it correct that the entry produced by him in the court pertained to a male child and not a female child.
13. The PW10 W/SI Neeraj, is the subsequent Investigating Officer of the case and she deposed that on 18.01.2014, further investigation of the case was entrusted to her by the order of SHO and since the investigation was already complete in all manner, she had only prepared the charge sheet and filed the same in the court through SHO.
She further deposed that on 30.01.2014, she had collected the age proof of the accused from his first attended school, as accused had claimed himself to be a minor, but later on he was declared a major and hence the certificate regarding the age proof of the accused was not placed on the judicial file by her. Some court questions were put to the witness to clarify regarding the 'gender' of child mentioned in MCD birth certificate Ex. PW1/C, which was stated to be of prosecutrix and in reply to them, PW10 deposed as under : Court Question: Kindly have a look at the MCD Birth certificate Ex.PW1/C, wherein the gender of the child 'T' has been mentioned as 'boy' (ladka) in the relevant column. Did you clarify from the MCD Authorities and/school authority and/or the parents of the victim 'T' regarding this anomaly?
Ans. I had verified from the mother of the victim, who told me that the gender 'male' may have been written inadvertently in the MCD record. I did not record any statement of the mother of the victim S.C. No. 43/14 : State vs. Kanwaljeet Singh : Page 10 of 16 'T' in this regard.
Court Question: Did you inquire how many brothers and sisters victim 'T' was having?
Ans. No. Court Question: Did you inquire from the school authority as to why they had taken admission of a female child against the birth certificate of a male child?
Ans. No.
14. In the present case, out of total of 17 witnesses cited by the prosecution, 10 witnesses were examined before the court. The only material witness i.e. PW6 Victim T failed to support the prosecution case. No other witness cited by the prosecution, could have connected the accused with the alleged offence, hence the examination of remaining witnesses was dispensed with and P.E was closed. The statement of accused was also dispensed with for want of incriminating evidence.
15. Arguments have been addressed by learned Addl. PP as well as learned defence counsel.
16. I have heard the arguments put forward by ld. Addl. PP as well as learned defence counsel for accused and have carefully gone through the record of the case. I have also perused the evidence adduced by the prosecution in support of its case.
S.C. No. 43/14 : State vs. Kanwaljeet Singh : Page 11 of 16
17. In the present case, the accused is alleged to have enticed away victim T, a minor, aged about 17 years and 9 months, out of keeping of her lawful guardian i.e. her parents, with intention that she would be forced to marry him and to have illicit intercourse with him.
18. The first issue, which arises for consideration of the court is, whether the victim T was less than 18 years of age, when she went missing from her house. In order to prove that victim was a minor, less than 18 years of age, at the time of the commission of offence, the prosecution has produced record from the school, wherein victim T is stated to have been admitted in first class. The record from the said school was produced by PW1 Sh. Lokesh Kumar, who deposed that victim T was admitted in first class in the school on basis of admission form Ex. PW1/A, affidavit Ex. PW1/B and MCD birth certificate Ex. PW1/C submitted by the mother of the child. As per the record produced by PW1, the date of birth of child T is 08.07.1995. However, from the crossexamination of PW1, it was brought out ther MCD birth certificate Ex. PW1/C found the gender of the child mentioned as 'boy' in the relevant column. The PW1 could not give any explanation how MCD birth certificate Ex. PW1/C, which was pertaining to a male child, was taken as proof of date of birth of the victim child T, a female.
19. In order to clarify regarding the gender of the child and to rule out the possibility of any clerical/typographical mistake, the witness from concerned MCD office was summoned and was examined as PW9. The relevant portion of the statement of PW9 has already been reproduced hereinabove. Suffice to say that S.C. No. 43/14 : State vs. Kanwaljeet Singh : Page 12 of 16 as per the record produced by PW9, birth of a son (male child) and not a daughter (female child) was reported and the date of birth of the said male child, born to Smt. Shyam Kumari and Sh. Rajbir Singh, was recorded as 08.07.1995. Certain court questions were also put to PW9 to elicit further information regarding the record produced by him and from the response given by PW9, as reproduced in foregoing paragraphs, it is clearly brought out that normally, there was no instance, where the gender of the child was wrongly recorded in the MCD record. It is also brought out that any change in the entry of birth like adding the name of the child etc., was made in the register of birth maintained at the MCD office, pursuant to directions issued by court and/or SDM and also on request made by parents/guardian of the child and this addition/alteration/correction is duly reflected in the relevant entry maintained in the register of birth. It was further brought out that in the present case, the parents of the child T did not make any request to the MCD officials for change of the gender of the child in the register of the birth, after registration of the date of the birth of the child, on 17.07.1995.
20. The prosecution has also examined the father of the victim T as PW4 and from his statement, it is brought out that he had seven children including four sons and three daughters and that victim T was his fifth born child. The PW4 could not tell date of birth of any of his children. He was also not aware, if the date of birth of child T had been got recorded with the MCD and stated that victim T was born at home and that he had not got her date of birth recorded with MCD. He further stated that he had not handed over any birth certificate of the victim to the school authorities at the time of admission of T in the school and was not aware, if his wife S.C. No. 43/14 : State vs. Kanwaljeet Singh : Page 13 of 16 Smt. Shyam Kumari (the witness expired by the time, case reached the stage of trial) had filed the same with the school authorities. Rather, PW4 stated that it was possible that T was above 18 years of age, when she went missing from their house.
21. In the present case, the documents from the first attended school of victim T were collected by PW7 W/SI Asha Devi and the charge sheet was prepared by PW10 W/SI Neeraj. The PW7 W/SI Asha Devi, who had collected the documents of age of the victim, stated during her crossexamination that she did not verify the genuineness of MCD birth certificate of the victim child. The PW10 W/SI Neeraj had prepared the charge sheet in the present case. Certain court questions were put to PW10 W/SI Neeraj with respect to discrepancy in the gender of the child as was reflected from the MCD birth certificate Ex. PW1/C, placed on record along with the charge sheet. The PW10 stated that she had verified about the discrepancy in the gender of the child as mentioned on Ex. PW1/C from the mother of the victim and that she had been told by Smt. Shyam Kumari that the gender of the child was mentioned as 'male' in the MCD record inadvertently. The PW10 however, could not produce any statement of Smt. Shyam Kumari in this regard. The PW10 further stated that she had not verified about the other brothers and sisters of victim T from her parents and that she had also not inquired from the school authority as to why, they had given admission to a female child against the birth certificate of a male child.
22. In the present case, the entire thrust of the prosecution case is on the age of S.C. No. 43/14 : State vs. Kanwaljeet Singh : Page 14 of 16 the prosecutrix/victim, which according to the prosecution case, was 17 years and 9 months at the time of the commission of the offence. However, the MCD birth certificate Ex. PW1/C has cast considerable doubt regarding the claim of the prosecution that prosecutrix was less than 18 years of age as on the date of the incident and this fact is clearly brought out from the testimony of PW1 Sh. Lokesh Kumar, PW9 Smt. Neeraj Yadav, PW4 Sh. Rajbir and PW10 W/SI Neeraj. No explanation has come forth from the prosecution, as to how the school authorities, admitted prosecutrix T, a female child, on basis of MCD birth certificate Ex. PW1/C, wherein the gender of the child was clearly mentioned as 'male'. No other document pertaining to the age of the victim has been placed on record by the prosecution. The PW4 Sh. Rajbir, father of the victim also showed doubt about the age of victim as he in the first instance, stated that his daughter T was only one month less than 18 years, when she went missing and that her age was mentioned as 17 years and 9 months by his wife, who had gone with him to PS at the time of filing of complaint and then stated that victim could have been more than 18 years of age, when she went missing from the house. It is noteworthy that the victim herself has claimed that she was above 18 years of age, when she eloped with the accused.
23. In these circumstances, it was imperative for the IO to clarify regarding the correct date of birth of victim S, rather than filing a charge sheet against the accused in a mechanical and routine manner. It appears that for reasons best known to them, both the IOs PW7 W/SI Asha Devi and PW10 W/SI Neeraj have failed to obtain necessary clarification from victim's parents regarding the correct S.C. No. 43/14 : State vs. Kanwaljeet Singh : Page 15 of 16 date of birth of the victim T.
24. The nutshell of foregoing discussion is that after due consideration of the entire material on record, including the testimonies of the witnesses examined by the prosecution, I am of the opinion that the prosecution has failed to prove that victim T was less than 18 years of age, when she eloped with the accused and since the victim T has herself stated that she had voluntarily gone to the house of accused as she wanted to marry him, the prosecution has failed to prove its case against the accused Kanwaljeet , beyond reasonable doubt. Accordingly, the accused Kanwaljeet, is acquitted of the charged offences, in the present case.
25. File be consigned to the Record Room.
(Announced in the open Court ) (Illa Rawat)
(Today on 29.09.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
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