Sonu And Anr. vs State Nct Of Delhi
2014 Latest Caselaw 2536 Del

$~R-34

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment reserved on : 09.5.2014
                                   Judgment delivered on : 19.5.2014

+      CRL.A. 830/2002

       SONU AND ANR.                                ..... Appellants

                          Through       Ms.Rita Kumar, Advocate.

                          versus

       STATE NCT OF DELHI                           ..... Respondent

                          Through       Mr.Varun Goswami, APP.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

Crl.M.A. No.2782/2002 (exemption)

Exemption is allowed subject to just exceptions.

Application disposed of.

CRL.A. No.830/2002

1 There are two appellants before this Court namely Sonu and

Judagi. They are aggrieved by the impugned judgment dated

04.10.2002 and order of sentence dated 05.10.2002 wherein Sonu had

been convicted under Section 354 of the IPC and had been sentenced to

undergo RI for 2 years and to pay a fine of Rs.1000/- in default of

payment of fine to undergo SI for 2 months. Appellant Judagi had been

convicted under Section 363 of the IPC had been sentenced to undergo

RI for 2 years and to pay a fine of Rs.1000/- in default of payment of

fine to undergo SI for 2 months.

2 Version of the prosecution was unfolded in the testimony of the

prosecutrix „N‟ examined as PW-4. Her version is that she had gone

from her house at Gaya (Bihar) to the railway station Patna where she

had met Judagi; Judagi insisted that he could arrange a job for her;

accordingly she accompanied him to Delhi where she was kept in the

house of Shankar as a paid servant. Sonu the son of Shankar had

committed rape upon her.

3 This version of PW-4 in her statement recorded under Section 161

of the Cr.P.C. had led to the registration of the FIR which had been

registered under Sections 367/368/376 of the IPC. PW-4 was examined

one year from the date of incident i.e. on 04.12.2000. She had deposed

that about 2 years ago she had gone alone to Patna for work.

(Admittedly she was a resident of Gaya, Bihar). She met Judagi at the

railway station; this was at Patna. He insisted that he could arrange a

job for her; accordingly she accompanied Judagi; Judagi addressed her

as „Beta‟; he brought her to Delhi and kept in the house of Shanker as a

servant. PW-4 categorically deposed that Shankar was not at fault but

his son Sonu had tried to tear her dupatta and robbed her „Ijjat‟; on her

raising a hue and cry Sonu had left. This witness was declared hostile

by the learned public prosecutor; she was permitted to be cross-

examined. In her cross-examination, she admitted that she told Judagi

that she had to go to Kastha; he also told her that he had to go to Kastha

but he took her to Poona. Judagi had beaten her and so also his wife.

She reiterated that Judagi met her at Patna station where he told her that

he would be able to arrange a job for her; thereafter he got her employed

with Shankar. She categorically denied that she had told the Magistrate

(in her statement under Section 164 of the Cr.P.C.) that Sonu son of

Shankar had done „galat kaam‟ by opening her „nada‟. She further

denied the suggestion that she had stated to the police that Sonu had

opened her „nada‟ forcefully and made her lie down; she also denied the

suggestion given to her that with great difficulty she was able to extract

herself from the clutches of Sonu.

4 She was cross-examined by the learned defence counsel at length.

She admitted that she had boarded the train from Patna at about

3.45 p.m.; police were stationed at the railway station; she accompanied

Judagi and it took about 17 hours to reach Delhi; she went to the toilet

about 3 to 4 times in between; she did not make any complaint to any

person either at the railway station or in Delhi about Judagi. She

reiterated that Judagi and his wife had given her beatings but no injuries

were found on her person at the time of her MLC. She admitted that she

had come to Delhi on an earlier date also after the death of her mother;

her father was a truck driver and he used to remain outside the house for

a long time. On the earlier occasion when she had come to Delhi she

had worked in a factory at Mayapuri; she had worked there for about six

months and then gone back to the village. She had come to Delhi alone

and she had gone back to her house at that time also alone. In the

context of her age also she was cross-examined. She admitted that she

was the eldest child in the family; on oath at the time of her deposition,

she had given her age as 19 years stating that her brother Imtiyaz is two

years younger than her and her sister Polia is one year younger to

Imtiyaz meaning thereby prosecutrix was about 16 years of age at that

time. PW-4 has further deposed that her youngest sister Gulab was aged

about seven years at that time.

5 The statement of the prosecutrix under Section 164 Cr.P.C was

recorded by the learned M.M. Dr.Sudhir Kumar Jain (PW-5). The

investigation was carried out by SI Kunwar Sahib Singh (PW-11). The

victim was medically examined by Dr.Poonam (PW-1) who had noted

no injury marks on her person; her hymen was absent but she could not

report as to whether this was an old tear or whether it was a fresh hymen

torn. In the context of age the investigating officer had also got the

bony age of the victim conducted through Dr.Dheeraj Tyagi examined

as PW-2. His opinion Ex.PW-2/A had opined her age between 10 to

14.3 years. PW-2, however, admitted that the bony age is not

conclusive piece of evidence on the age of a person.

6 The trial court on the basis of the aforenoted evidence had

concluded that the victim was a minor; the appellant Judagi had enticed

the victim out of the keeping of the lawful guardian and he is guilty of

the offence punishable under Section 363 of the IPC. Sonu had

attempted to molest the victim and he was found guilty of offence

under Section 354 of the IPC. The third accused Shankar had been

acquitted.

7 On behalf of the appellants arguments have been heard in

details. Written submissions have also been filed. It is pointed out

that on no count can the impugned judgment be sustained. Attention

has been drawn to that part of the cross-examination of PW-4 wherein

she had denied her version given in her statement recorded under

Section 164 of the Cr.P.C. wherein she had implicated Sonu;

submission of the learned counsel for the appellant being that the

prosecutrix had made substantial improvements in her version; in her

statement under Section 164 of the Cr.P.C. she had stated that Sonu

had committed rape upon her; in her examination-in-chief and in her

cross-examination she had restricted the role of Sonu to molestation;

wherein in his cross-examination by the learned public prosecutor she

had even denied that version. Submission being that no reliance or

credibility can be attached to such a version; appellant Sonu is

entitled to benefit of doubt. Qua the role of Judagi it has been pointed

out that there is no evidence to suggest that the victim was a minor.

Submission being that on oath in court when she was examined in the

year 2000 she had given her age as 19 year and the offence dates back

to 09.9.1999 whereas both in her MLC as also in the ticket of the

casualty department she had stated her age to be 18 years.

Submission being that in this background the bony age opined by the

doctor which is even otherwise not a conclusive piece of evidence

was wrongly taken into account by the learned trial court to hold that

the victim was a minor; she is admittedly a major. It is submitted

that that apart there is nothing to suggest that the victim had been

enticed from the keeping of the lawful guardian as admittedly she had

met Judagi at railway station when she was alone and out of the

guardianship of her parents. To support this submission reliance has

been placed upon a judgment of the Apex Court reported as AIR 1965

SC 942 S.Varadarajan Vs. State of Madras. Submission being that

where a victim knows and has the capacity to understand the full

import of what she was doing and she voluntarily joined the accused

it could not be said that the accused had taken her away from the

keeping of her lawful guardianship. It is pointed out that the

investigation is also tainted. On all counts benefit of doubt must

accrue in favour of the appellants.

8 Arguments have been refuted. Learned public prosecutor

pointed out that on no count does the impugned judgment call for any

interference. Qua the role of Sonu, learned public prosecutor has

pointed out that the victim in her examination-in-chief has

categorically admitted that Sonu attempted to molest her and this

version cannot be ignored. Qua the role of Judagi it is submitted that

the victim being a minor, her consent was no consent in the eye of

law and her having been instigated by Judagi to join him to go to

Delhi clearly established the defence of kidnapping. On no count can

it be said that the impugned judgment is an illegality. Learned public

prosecutor has placed reliance upon a judgment of the Apex Court

reported in AIR 1955 Andhra 59 (Vol. 42, C.N. 23) in re Khalandar

Saheb, Petitioner (Accused). to support his submission that the word

"kidnapping" as appearing in Section 361 of the IPC cannot be

interpreted in a narrow sense; it is not the physical presence in the

precincts of the father‟s house that matters but whether the daughter

was in fact under his guardianship. Submission being that the victim

who was a minor was admittedly under the guardianship of her father

when she had left her house at Gaya.

9 Arguments have been heard and record has been perused.

10 The answer to the arguments raised by the respective parties

lies in the version of PW-4 who is the star witness of the prosecution.

Her version has been noted supra. From this narration which is on

oath it is apparent that the victim had left her house at Gaya to go to

Patna for work. She met Judagi at the railway station at Patna. He

insisted her that he could get her a job and she accompanied him. He

was addressing her as "Beta". She was brought to the house of

Shankar where son of Shankar attempted to rob her „Ijjat‟. In her

cross-examination by the learned public prosecutor she clearly denied

the suggestion that Sonu son of Shankar did any „GALAT KAAM‟

with her by opening her „nada‟ of her salwar or he made her lie down

forcefully or with great difficulty she was able to extricate herself

from underneath him.

11 This version on oath of PW-4 is also in contrast with the

version which she had given in her statement under Section 164 of the

Cr.P.C. In her statement before the learned M.M. under Section 164

of the Cr.P.C. she had clearly stated that Sonu son of Shankar had

done „Galat Kaam‟ with her.

12 The witness was clearly flip-flopping. In her statement under

recorded Section 164 of the Cr.P.C. the allegation against Sonu was

of rape. In her examination-in-chief it was corrected and had become

molestation i.e. Sonu attempted to rob her „Ijjat‟. In her another part

of cross-examination which was conducted by learned public

prosecutor she turned turtle. She retracted from her examination-in-

chief. She categorically denied the suggestion that Sonu had opened

her „nada‟ forcefully or made her lie down or she extracted herself

from underneath him with great difficulty.

13 In this context trial judge convicting the appellant Sonu for the

offence under Section 354 of the IPC has committed a grave

illegality. Benefit of doubt has to accrue in favour of the appellant

Sonu as the prosecutrix in her version is not trustworthy qua the role

which had been assigned to Sonu. Appellant Sonu is accordingly

acquitted of the charges leveled against him.

14 Qua the role of Judagi, this Court holds that the offence under

Section 361 of the IPC is not made out. As per the version of PW-4

she had left her house at Gaya (more than 2-3 hours distance from

Patna railway station) and on reaching Patna railway station she met

Judagi. On an earlier occasion also PW-4 had admittedly gone to

Delhi alone; stayed in Delhi alone; and worked in a factory at

Mayapuri for six months. Thereafter she returned to her village, at

that time also she was alone. Even on the fateful day when she had

left her house at Gaya; she had left it independently and voluntarily

and on her own; she had gone to Patna railway station hoping to go to

Kastha; at that point of time she had met Judagi. He had insisted that

he could get her a job and she accompanied him to Delhi.

15 Section 361 of the IPC reads herein as under:

"361. Kidnapping from lawful guardianship.--Whoever takes 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.

Explanation.--The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person."

16 This section essentially entails a taking or enticing away of a

minor; minor must be under 16 years of age if a male, or under 18

years age if a female; taking or enticing away must be out of the

keeping of the lawful guardian of such a minor; further this must be

without the consent of the guardian.

17 Even presuming that the version of PW-4 on oath is consistent

on the fact that it was on the insistence of Judagi that she had

accompanied him to Delhi and enticement qua Judagi is made out, the

other essential ingredient of Section 361 of the IPC which entails a

taking or enticing out of the keeping of the lawful guardian is also

required to be proved. The initial taking away of the girl must be

from the keeping of her lawful guardian. Admittedly, in this case the

victim had come out from her house at Gaya on her own volition,

independently and on reaching the railway station at Patna (which is

at a distance of more than 2-3 hours from Gaya) she had met Judagi.

At the cost of repetition it is noted that even on an earlier occasion the

victim had gone to Delhi alone and had stayed in Delhi and worked

for six months in a factory at Mayapuri at Delhi. This establishes the

submission of the learned counsel for the appellant that the victim

was a person knowing the full import of her acts and had made a

conscious decision to come from Gaya to reach the railway station at

Patna. It is clear that the victim had left the custody of her father on

her own and it was only after she reached the railway station at Patna

that she had met Judagi. This act was her own voluntary act.

18 This Court is thus of the view that the ingredients of enticement

and keeping away from the keeping of the lawful guardian of the

victim have not been established by the prosecution. Conviction of

the appellant under Section 363 of the IPC thus cannot be sustained.

19 The age of victim is also in quandary. The trial judge has relied

upon the bony age which had been opined by the doctor to be

between 10 to 14.3 years and drawn a conclusion that the victim is

less than 16 years of age. This is contrary to the version given by the

prosecutrix herself who had on oath in the witness box on 04.12.2000

stated her age to be 19 years. Her MLC and her casualty ticket on the

date of the incident i.e. 12.7.1999 has recorded her age as 18 years.

The MLC also notes that the victim had given the history herself.

Where the victim had herself given her age as 18 years on the date of

the offence in two separate documents and has reiterated the same

version on oath in Court, the trial judge relying upon the bony age

report of the victim which is admittedly not a conclusive piece of

evidence and holding the victim to be a minor has committed another

illegality. However, this Court need not to go any further into the age

of the victim to establish as the other ingredient of offence under

Section 361 of the IPC i.e. an enticement from the keeping of the

lawful guardian is missing and as noted supra benefit of doubt on this

count must accrue to the appellant and on this count alone he is

entitled to an acquittal.

20 The Apex Court in the judgment of S.Varadarajan (supra) in

this context had noted that taking or enticing away out of the keeping

of the lawful guardian is an essential ingredient of the offence of

kidnapping. In that case the victim had decided to marry the accused.

It was on her insistence that the appellant had agreed for the marriage.

She had accompanied the appellant on her own willingly; she being at

the age of discretion and on the verge of attaining majority was aware

of the import of her act. The Apex Court had concluded that the

offence of kidnapping is clearly not made out.

21 Judagi is accordingly also acquitted of the charges leveled

against him.

22     Appeal is allowed.

23     Appellants are acquitted.   Bail bonds cancelled.          Sureties

discharged.

                                           INDERMEET KAUR, J

MAY 19, 2014
ndn