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In The Court of Sh. Dharmesh Sharma, Asj 01, New Delhi District, Patiala House Courts, New Delhi
In The Court of Sh. Dharmesh Sharma, Asj 01, New Delhi District, Patiala House Courts, New Delhi
DHARMESH SHARMA,
ASJ01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI.
Date of filing of charge sheet : 14.05.2013
Date of framing of charge : 22.05.2013
Date of final arguments : 05.08.2013
Date of judgment : 17.08.2013
SC No. 66/13
FIR NO. 63/13
PS : Vasant Kunj (N)
U/s 363/366/376 of IPC
& u/s 4 of POCSO ACT
STATE
Vs.
SUMAN DASS
S/O SH. DHIRENDER DASS
R/O VILLAGE AAMKULA, PS GAYA GHAT,
DISTT. NORTH 24, WEST BENGAL.
PRESENTLY RESIDING AT :
C/O PAVVE, 33/B9, VILLAGE KISHANGARH,
NEW DELHI.
APPEARANCES
Present : Mr. Salim Khan, Ld. Addl. PP for the State
Mr. Ravi Qazi, Ld. counsel for the accused from Legal Aid.
17.08. 2013
JUDGMENT
been arraigned for trial on the allegations that he kidnapped a
FIR No. 63/13 State v. Suman Dass Page no. 1 of 13
minor girl child/prosecutrix aged about 15 years with the
intention to compel her to marry him and thereafter committed
penetrative sexual assault upon her.
FACTS
2. The case of the prosecution is that on 05.03.2013 DD
No. 24 A was recorded at 5:40p.m Ex. PW 3/B at PS Vasant Kunj
(PW2) reporting that her daughter aged about 15 years and four
months old went missing from her house after 8:30 p.m on
26.02.2013 on the basis of which the present FIR Ex. PW 3/A was
initially recorded u/s 363 of IPC; that investigation was marked
would be arriving at Delhi along with accused; that on the said
information, the accused Suman Dass was arrested from whose
custody the girl child(PW1) was recovered and the girl child was
placed under the supervision of Ct. Poonam and sent for medical
examination to Safdarjung Hospital where girl child refused to
allow her internal examination; that accused was also subjected
to medical examination who was found potent enough to have
sexual intercourse.
FIR No. 63/13 State v. Suman Dass Page no. 2 of 13
3. It is further the case of the prosecution that during
the investigation, the girl child was produced before the Ld. MM
interalia she stated that she had gone away with accused to her
native place where they got married in a temple at Chandipur
near Kolkata and since then they have been together; that the girl
child was produced before the Child Welfare Committee Bench
of Magistrate GNCT, Delhi and after her examination, she was
investigation, the present police report was filed.
CHARGE
4. Needless to state that accused initially was charged
u/s 363/366 of IPC to which he pleaded not guilty and claimed
Offences (POCSO) Act to which the accused pleaded not guilty
and claimed trial.
PROSECUTION EVIDENCE
5. The prosecution in order to prove its case examined
and I shall dwell on her evidence later on in this judgment. PW2
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dwell later on in this judgment.
Singh who was the Investigating Officer while PW4 was W/ASI
Kailash Kain who was associated during the investigation of this
case.
7. It is pertinent to mention here that Mr. Ravi Qazi, Ld.
counsel for the accused did not dispute the correctness of the
marked A1 while the medical examination report of the accused
was also admitted that was marked as A2. Mr. Qazi, Ld. counsel
from Legal Aid also did not dispute the correctness and legality
of the statement of the prosecutrix recorded u/s 164 of Cr.PC by
Sh. Jay Thareja, Ld. MM u/s 164 of Cr. P.C and that dispensed
with the requirement to examine the ld MM.
STATEMENT OF ACCUSED U/S 313 Cr.P.C
putting the incriminating facts and circumstances on the record,
accused stated that the prosecutrix / girl child accompanied on
her own will with her to Kolkata where they performed marriage
on 28.02.2013 at Village Chandipur but he denied that he had
sexual intercourse with the prosecutrix / girl child.
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9. I have heard Ld. APP for the State and Ld. counsel for
the accused. I have also perused the relevant record of the case
including the trial court record.
LEGAL PROVISIONS IN QUESTION
10. Before we proceed to appreciate the evidence led by
the prosecution on the record, it would be expedient to point out
contemplates taking or enticing away any minor girl under 18
years of age out of the keeping of the lawful guardians which is
made punishable u/s 363 of IPC. Section 366 of IPC is an offence
about kidnapping of a woman with the intention that the woman
intercourse.
11. Now Section 3 of POCSO Act is quite a stringent and
exhaustive provision that provides as under:
3. Penetrative sexual assault A person is said to commit
“penetrative sexual assault” if
(a) he penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a child or makes the child to
do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra or
anus of the child or makes the child to do so with him or
any other person; or
(c) he manipulates any part of the body of the child so as
to cause penetration into the vagina, urethra, anus or any
part of body of the child or makes the child to do so with
him or any other person; or
(d) he applies his mouth to the penis, vagina, anus,
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urethra of the child or makes the child to do so to such
person or any other person.
12. It may be seen that the word “assault” is not defined
under the POCSO Act but it is defined u/s 351 of IPC to mean
“any gesture, or any preparation intending or knowing it to be
preparation is about to use criminal force to that person”.
13. Offence of “criminal force” is defined u/s 350 of IPC
intending by the use of such force to cause or knowing it to be
likely that by the use of such force he will cause injury, fear or
that sexual intercourse with a child is punishable u/s 4 of the
POCSO Act provided it is in the nature of an assault.
APPRECIAITON OF EVIDENCE
14. Coming to the instant case, first thing first, there is no
PW1 girl child was 27.10.1997 and therefore, during the relevant
time, she was about 15 years and four months old making the
provisions of the POCSO Act applicable. Secondly, evidence of
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PW1 girl child is categorical that she was having friendly
relationship with accused who was residing near her house and
Chandipur near Kolkata along with the accused where they got
Delhi and stayed at the house of the accused when accused was
arrested on 06.03.2013.
statement before the Ld. MM u/s 164 of Cr.P.C which is Ex. PW
1/A, perusal of which would show that she stated ditto facts
much as while in her statement u/s 164 Cr.P.C Ex. PW 1/A she
testimony before the Court, she stated that after marriage she
had sexual relationship with the accused. In fact, when PW1 was
produced before the doctor concerned, as per MLC Ex. A1 on
06.03.2013 she did reveal to the doctor that she had sexual
relationship with a boy Suman Dass after marriage.
mother of the prosecutrix is that her daughter went missing on
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daughter was recovered on 06.03.2013. But PW2 in her evidence
stated that the marriage between the accused and her daughter
certain that accused would take good care of her daughter. The
question is where does the said evidence lead us to in view of the
penal provision quoted above particularly the stringent one in
POCSO Act?
17. In so far as the offence of kidnapping is concerned,
there is no iota of evidence that accused enticed or took away the
child is that she left the house of her own and accompanied with
indicates, they got married voluntarily with their free consent,
hence no case is made out u/s 363 and 366 of the I.P.C. Reference
can be had to decision in Varadarajan v. State of Madras, 1965
(2) CRI. L. J. 33 (Vol. 71, C. N. 7), wherein the law on kidnapping
was explained in somewhat similar contextual circumstances as
under:
The fact of her accompanying the accused all along is quite
consistent with her own desire to be the wife of the accused in
which the desire of accompanying him wherever he went is of
course implicit. Under these circumstances no inference can
be drawn that the accused is guilty of taking away the girl out
of the keeping of her father. She has willingly accompanied
him and the law does not cast upon him the duty of taking her
back to her father's house or even of telling her not to
accompany him. (Para 7)
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There is a distinction between "taking" and allowing a minor
to accompany a person. The two expressions are not
synonymous though it cannot be laid down that in no
conceivable circumstances can the two be regarded as
meaning the same tiling for the purposes of S. 361. Where the
minor leaves her father's protection knowing and having
capacity to know the full import of what she is doing,
voluntarily joins the accused person, the accused cannot be
said to have taken her away from the keeping of her lawful
guardian. 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. (Para 8)
18. Much was urged by Ld. APP for the State that the
mandate of the POCSO Act is that no one including a married
man can have sexual intercourse with a child below 18 years of
had taken place with consent of a girl child which is not derived
by coercion or not in the nature of an assault or use of criminal
consent is not obtained for unlawful purpose, no offence within
the ambit of Section 3 of POCSO Act can be said to have been
committed.
19. It is pertinent to mention here that u/s 375 (sixthly)
man with his own wife, wife being not under 15 years of age, is
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not a rape. It is also significant to note that the issue of consent
occurring in section 375 of IPC has been deliberately omitted in
the entire scheme of the POCSO Act and instead the emphasis is
on the act of “assault”. The genesis of the present enactment lies
in India being signatory to the Convention on the Rights of the
Child adopted by the General Assembly of the United Nations
dated 11th December, 1992 whereby it was resolved that the State
prevent
c) the exploitative use of children in pornographic performances
and materials;
harassment that are likely to bring an irreparable impact on the
mental, physical and psychological health , freedom and dignity
of a child.
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21. In the instant case, the girl child PW1 has married
with the girl child and they are residing peacefully. The accused
happens to be a young boy of 22 years. At the cost of repetition,
prosecutrix/ girl child as well as her community. In my opinion,
it would neither serve the object of the present enactment nor
the purpose of criminal laws to hold the accused guilty on the
ground that he had sexual intercourse with the girl child below
18 years of age. As the prosecution has not disputed the factum
of marriage, it would not be conducive to mental, psychological,
husband be sent to the Jail. If they are happy about it, why put
obstacles on their path.
blindness they are not able to realize the kind of responsibilities
that would fall ultimately on their shoulders after this marriage
so early in their life. Law can not and should not prohibit teens
from experimentation of such nature.
23. It has been urged by Ms. Kalpana, Ld. Counsel from
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mandates that there must be total prohibition upon teenagers or
afraid, if that interpretation is allowed, it would mean that the
property of State and no individual below 18 years of age can be
their lies a greater responsibility on all of us, the State including
impact of girl or boy marrying at a tender age or indulging in
unsafe sexual activities. It is high time that the State authorities,
its machineries and/or public spirited NGOs/Societies/ Women
groups to make a determined and sustained endeavour to reach
public awareness on various aspects of life in case of marriage at
serious mental, psychological, physical health issues that such
relation entails in case of marriage at a tender age.
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FINAL ORDER
24. Anyhow, coming to the instant case again, the boy at
the age of 22 years and the girl at the age of 15 years and four
months were friendly with one another and there is nothing to
indicate that she was enticed or taken away by the accused since
the girl child knew what she was doing and got married
voluntarily and physical relation with the child was not in the
upon the girl child.
prosecution fails to prove its case against the accused on law and
facts. Therefore, accused Suman Dass S/o Sh. Dhirender Dass is
cancelled. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (DHARMESH SHARMA)
TODAY i.e 17.08.2013 ASJ01/PHC/NEW DELHI
17.08.2013
...
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