Crl.M.A. No.735-MA of 2010 v. KRISHAN KUMAR ETC

accused. On the basis of the said complaint, FIR under Section 363, 366, 120-B IPC was registered against the accused. Accused No.1 Krishan was arrested on 29.7.2009, and the prosecutrix was recovered from his custody. Statement of the prosecutrix under Section 164 Cr.P.C. was recorded, wherein she stated that she had been raped by accused Krishan. Thereafter, Section 376 IPC was added to the case. Accused Mahender was also arrested on 29.7.2009. During investigation, other two persons, namely, Tinu and Salochna were found innocent. After completion of the investigation, challan was presented against the respondents. Charge under Section 363/366/376(2)(g) IPC was framed against the accused to which they pleaded not guilty and claimed trial. To prove its case, the prosecution examined as many as 12 witnesses. The prosecutrix appeared as PW1. She deposed that on

22.7.2009, when she was going on foot to the house of her aunt (Bua) from the house of her maternal uncle, accused Mahender, who is son of her uncle (Tau) met and offered to drop her to the house of her bua. When she alongwith Mahender was going to the house of her Bua, accused Krishan met them on the way and they went to a park. Thereafter accused Mahender went back and accused Krishan took her to a abandoned factory where he committed rape upon her. Thereafter accused Krishan took her to Delhi by train and solemnized marriage with her in a temple. Some documents were also prepared and her signatures were also obtained on those papers. Thereafter accused Krishan took her to Karnal in a farm house where he Crl.M.A. No.735-MA of 2010 -3- again committed rape upon her regularly for seven days. She further stated that on 29.7.2009, police arrived and recovered her from the custody of the accused. Complainant Jagdish, father of the prosecutrix appeared as PW2. He deposed on the same lines as stated in his complaint. Krishan Singh, uncle of the prosecutrix appeared as PW6 and deposed that the prosecutrix came to his house 15-20 days back. On

22.7.2009, at about 1.30 p.m., she had left for Dadri Gate, Bhiwani, but neither reached Dadri Gate, nor came back home. In the evening only, he came to know that accused Mahender abducted her with the help of accused Krishan. ASI Uma Shankar appeared as PW9. This witness was the investigating officer of the case and he deposed that on 29.7.2009, he alongwith ESI Pajinder Singh, H.C. Ved Parkash and Lady Constable Raman Devi and the complainant had gone to Karnal. At Namestey Chowk, the complainant identified a girl coming from the opposite side as his daughter and accused Krishan. Both of them were apprehended. Dr. Rashmi Garg, who medico-legally examined the prosecutrix appeared as PW10. She deposed that on 29.7.2009, the prosecutrix was examined by her and she found no signs of injury on the body of the prosecutrix. There was redness and tenderness over the hymen, which was broken. Vagina was admitting two fingers. Brij Lal, Headmaster of Govt. High School Sankror, District Bhiwani appeared as PW11. This witness brought the admission and withdrawal register of the school, according to which the date of birth of the prosecutrix was 16.7.1993. Crl.M.A. No.735-MA of 2010 -4- Dr.Rajeev Yadav, who medico-legally examined accused Krishan Kumar appeared as PW12. This witness opined that there was nothing to suggest that the accused was not capable to perform sexual acts. Thereafter prosecution evidence was closed. After closure of the prosecution evidence, statement of the accused unde Section 313 Cr.P.C. was recorded. Accused Krishan Kumar pleaded innocence. He further pleaded that the prosecutrix called him at Bhiwani by telephone and he married her with her consent in Arya Samaj Mandir, Harit Vihar, Delhi on 23.4.2009. She herself had disclosed her age to be near-about 20 years. He further stated that he knew prosecutrix for the last two years prior to the occurrence. The prosecutrix had two times visited his house at Dadri and a Panchyat was also convened in this regard and she was handed over to her parents. Accused Mahender also pleaded innocence. He stated that he had been falsely implicated due to party faction and enmity in the village. The accused in their defence produced Yashdev Sharma, R/o A-54, Arya Samaj Mandir Harit Vihar, Sant Nagar, New Delhi as DW1. The trial Court after taking into consideration the deposition of the prosecutrix, medical evidence and the other material factors, acquitted the accused of all the charges against them. Counsel for the State has argued that the trial Court committed a grave error in not relying on the statement of the prosecutrix PW1. It has been stated that the prosecutrix had categorically deposed that accused Mahender who is the son of her uncle (Tau) had met her and had offered to drop her to the house of her Bua. Thereafter, when she went alongwith Crl.M.A. No.735-MA of 2010 -5- accused Mahender, accused Krishan met them at some distance and they went to a park and sat there. Thereafter Mahender went away, whereas Krishan took her to a abandoned factory and committed rape upon her. The prosecutrix also deposed that thereafter accused Krishan took her to Delhi by train and then, after some persons have come from Dadri, the accused solemnized his marriage with her in a Temple and also prepared documents and obtained her signatures. The prosecutrix also deposed that after marrying her, accused Krishan took her to Karnal, where he again committed rape upon her. It is thus, clear that once the prosecutrix had categorically stated that accused Krishan had raped her and had taken her away forcibly, therefore, there was no reason to acquit the accused. Learned counsel has also submitted that the prosecutrix was below the age of 16 years and therefore, no benefit should have been to the accused on account of the age of the prosecutrix. We have perused the judgement of the trial Court carefully and are of the opinion that it is highly improbable that the cousin of the prosecutrix Mahender would take her away and hand over the prosecutrix to accused Krishan for committing rape upon her. Mahender is the prosecutrix's Tau's son. Apart from the above, as per the prosecutrix, Krishan had first taken her to an abandoned factory where he is alleged to have committed rape upon her. Thereafter, he took her by train to Delhi, from there to a Temple where papers were prepared and thereafter marriage was contracted. Some persons from Dadri had also witnessed the wedding. After the marriage, Krishan is alleged to have taken the prosecutrix to Karnal and kept her in a farm house. The entire sequence of events shows that the accused Krishan did not use any force or give any Crl.M.A. No.735-MA of 2010 -6- threat to the prosecutrix. The prosecutrix could easily have escaped from the custody of Krishan or could have raised hue and cry at the Delhi Railway Station or at Temple, where she was married, or at Karnal. At the Temple she not only contracted the marriage with accused Krishan, but also signed various papers and documents. The prosecutrix also did not complain to anybody despite having come across so many persons from the public and at numerous public places like railway station, Temple, etc. It is thus, clear that the prosecutrix was a consenting party and the accused did not commit any rape upon her. Coming to the next argument of the counsel for the State that the prosecutrix was below 16 years of age, we find from the statement of the prosecutrix herself that her elder brother was 22 years old on the date of her deposition on 14.11.2009. The father of the prosecutrix Jagdish, PW2 has deposed that there was a difference of one year between the age of prosecutrix and her elder brother. Apart from the above, even in the marriage certificate (Ex.DE), the age of the prosecutrix has been written to be 20 years. Even as per the School Leaving Certificate, the prosecutrix was above the age of 16 years. Thus, there is no question of abduction of the prosecutrix who had eloped with the accused of her own free will. She stayed with the accused and moved freely with him. Even in her statement under Section 164 Cr.P.C. (Ex.PA), the prosecutrix had nowhere alleged that she was kidnapped by any of the two accused or that she was under pressure or coercion or any undue influence of the accused. Apart from the above, a perusal of the evidence of Dr.Rashmi Garg, PW10 shows that no external or internal marks of injuries were found on the body of the prosecutrix. Crl.M.A. No.735-MA of 2010 -7- In view of the aforementioned discussion, we find no merit in this application for grant of leave to appeal against the judgement of the trial Court and accordingly, leave to appeal is declined. (ASHUTOSH MOHUNTA) JUDGE October 4, 2010 Gulati (NAWAB SINGH) JUDGE