Delhi District Court
S.C. No.71/10 Fir No.154/09 State vs . Akram 1/20 on 16 May, 2012
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No.71/10
FIR No.154/09
PS: K.M. Pur
U/S:363/366/376 IPC
The State
Versus
Akram
S/o Sh. Rabban Khan,
R/o Mahua Tala, P.S. Sipal,
District Sipal, Bihar.
Date of Initial Institution :15.09.2009
Date of Institution in the present court:30.09.2010
Date of Reserving Order :09.05.2012
Date of Pronouncement Order :16.05.2012
JUDGMENT
1. The accused is facing trial under Section 363/366/376 IPC. The case of the prosecution as set up in the charge-sheet is that on 15.06.2009 one Lal Babu Shah came to the Police Station and stated that on 12.06.2009 at around 11:00 p.m his 16 years old daughter (name S.C. No.71/10 FIR No.154/09 State vs. Akram 1/20 withheld) has left the house without telling anybody. He suspected that his daughter has been enticed by Akram.
2. On this statement, a case under Section 363 IPC was registered. On 17.06.2009, accused was arrested and the prosecutrix was recovered. After completion of the investigation, charge-sheet under Section 363/366/376 IPC was filed against the accused and since the offence under Section 366 IPC and 376 IPC are exclusively triable by the court of Sessions, the case was committed to this court.
3. On 22.04.2010, charge under Section 363/366/376 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined 10 witnesses.
5. PW-1 Lal Babu, who is the informant and father of S.C. No.71/10 FIR No.154/09 State vs. Akram 2/20 the prosecutrix stated that in the month of June 2009, his daughter left the house, without disclosing anybody, at about 11:00 p.m and he suspected that Akram had enticed her and had taken her with him. He proved his complaint as Ex.PW1/A and handing over memo of the School Certificate showing the date of birth of his daughter to the Police as Ex.PW1/B. He proved the arrest memo of accused Akram as Ex.PW1/C and his personal search as Ex.PW1/D. He further stated that he searched for his daughter with Police and when his daughter and accused were seen, they were apprehended in NOIDA. On this point, Ld. Addl. PP put a leading question to the witness to which he replied that place of arrest was Ashram Chowk and he had wrongly deposed earlier as NOIDA since he was not knowing the name of the place. In his cross- examination, he admitted that the prosecutrix was got admitted in a school by her Nana and at that time he (witness) was not present. He further stated that he does not know as to on what basis Nana of the prosecutrix had given her age at the time of her admission in the school. S.C. No.71/10 FIR No.154/09 State vs. Akram 3/20 Further, it was stated that there may be discrepancies in the age of his daughter as given to the school authorities.
6. PW-2 Prosecutrix stated that on 11.06.2009, she had left the house with Akram and had gone to NOIDA with him where accused had taken a room on rent. In that room, they stayed together for about six days and thereafter they were apprehended by the Police. Accused has enticed her on the pretext of getting married with him. Nothing else happened there. She was declared hostile and was cross-examined by the prosecution wherein she denied the suggestion of rape committed upon her by the accused. In her cross-examination by the accused, she stated that she had run away with the accused on 11.06.2009. She also stated that she has given her age as 20 years in the hospital and had given the history that she had run away from the house with Akram on 11.06.2009.
7. PW-3 Ct. Vishambar Dayal had stated that on 17.06.2009 when he, ASI Bansi Ram and informant Lal S.C. No.71/10 FIR No.154/09 State vs. Akram 4/20 Babu had reached Ashram Chowk and were waiting for Auto, Lal Babu pointed out accused Akram and the prosecutrix, who were seen coming in Auto and both of them were apprehended and were brought to the PS. He proved the arrest of the accused vide Ex. PW1/C and his personal search as Ex.PW1/D. Recovery memo of prosecutrix was proved as Ex.PW3/A. In his cross- examination, he confirmed that the accused and the prosecutrix were coming in a TSR. He further stated that public persons were present at Ashram Chowk and the IO did not ask the public persons to join the proceedings at that time. The arrest memo was prepared in the PS.
8. PW-4 W/Ct. Asha deposed about taking the prosecutrix for medical examination and thereafter taking the prosecutrix to Nari Niketan, Hari Nagar.
9. PW-5 HC Nirbhay Singh proved recording of FIR as Ex.PW5/A and his endorsement on the Rukka as Ex.PW5/B. S.C. No.71/10 FIR No.154/09 State vs. Akram 5/20
10. PW-6 Dr. Shiva Prasad, Sr. Research Associate, Department of Forensic Medicine, AIIMS, proved the examination of accused vide MLC No. 46763 as Ex.PW6/A on 17.06.2009. According to his medical opinion, there was nothing to suggest incapacity of accused Akram in performing sexual intercourse under normal circumstances.
11. PW-7 Dr. Mukta Aggarwal, Senior Resident, Obs. & Gynae, AIIMS, proved the examination of the prosecutrix on 17.06.2009 at about 1:07 p.m vide MLC No. 46762/09 as Ex.PW7/A. She stated that the patient had told her that she was 20 years old and had run away from her home with a known boy Akram on 11.06.2009 and about living with him willingly since then. She had intercourse 3 to 4 times with her consent and recovered by Police on 17.06.2009. The prosecutrix was undergoing menstruation at the time of her medical examination. She further referred the prosecutrix for her bone-age X-ray. S.C. No.71/10 FIR No.154/09 State vs. Akram 6/20
12. PW-8 Gopal Hazra, Principal, Rajkiya Prathmik Urdu Vidyalaya, Kursi Barwah, Anchal Sikta , Distt. West Champaran, Bihar, stated that the Transfer Certificate No. 282 dated 01.02.2005 was never issued from his school.
13. PW-9 Retd. ASI Bansi Ram is the IO and stated that on 15.06.2009, informant Lal Babu Shah lodged complaint about missing of his daughter as Ex.PW1/A on which he prepared Rukka as Ex.PW9/A and the same was handed over to Duty Officer for registration of the FIR. Thereafter, he alongwith Ct. Sachin made inquiries about prosecutrix and obtained her photograph and efforts were made to trace her out. On 16.06.2009, he alongwith Ct. Vishambar Dayal and informant reached Village Mamura in NOIDA but could not meet brother of the accused. On 17.06.2009, he, Ct. Vishambar Dayal and informant were present at Ashram Chowk at about 1:30 p.m when complainant pointed out towards his daughter (prosecutrix) who was coming from the side of Maharani Bagh alongwith Akram. Akram was apprehended. S.C. No.71/10 FIR No.154/09 State vs. Akram 7/20 Recovery memo of the prosecutrix is Ex.PW3/A. After the medical examination of the accused and the prosecutrix, the prosecutrix was produced before the concerned court and from there she was sent to Nari Niketan because she was not willing to go to her parents' house. He further deposed that on 12.07.2009, complainant produced School Migration Certificate of his daughter which was seized vide seizure memo Ex. PW1/B. In his cross-examination, he stated that the accused and the prosecutrix were on foot when they saw them coming from the side of Maharani Bagh and they were not coming by TSR. He further stated that he had not gone to the school for verification of the alleged School Migration Certificate of the prosecutrix.
14. PW-10 Dr. Devasenathipathy, Assistant Professor, Radio Diagnosis, AIIMS, proved his X-ray Report as Ex.PW10/A, according to which, bone-age of the prosecutrix was 16.4 to 19 years.
S.C. No.71/10 FIR No.154/09 State vs. Akram 8/20
15. Ld. Counsel for the accused has argued that the accused has faced trial under Section 363/366/376 IPC. Ld. Counsel has taken me through the deposition of the witnesses. By reading the deposition of the prosecutrix PW-2, it has been pointed out that the prosecutrix herself stated in her examination-in-chief that she had left the house with the accused and went to NOIDA where the accused had taken a room on rent and they both stayed together for about six days in that room and nothing happened there. Ld. Counsel has thus argued that the prosecutrix herself has not stated anything with regard to the charge under Section 376 IPC against the accused and hence the charge under Section 376 IPC is not proved at all against the accused. For the offence under Section 366 IPC, it has been argued that to prove such an offence first of all age of the prosecutrix must be proved to be below 18 years on the date of incident. It has been argued that the prosecution has failed to prove the age of the prosecutrix to be below 18 years. PW-1, father of the prosecutrix, in his deposition, stated that the prosecutrix S.C. No.71/10 FIR No.154/09 State vs. Akram 9/20 was admitted in a school by her Nana in Bihar but he could not tell on what basis her age was given by her Nana at the time of her admission in the school. He further admitted that there may be discrepancies in the age of her daughter as given to the school authorities. He further stated that PW-8, Principal of the school had stated that the School Leaving Certificate was not issued from his school. The bone-age X-ray shows the age of the prosecutrix between 16.4 years to 19 years and as per judicial pronouncements, a benefit of plus/minus two years is available to the accused in case of determination of age by bone-age -X rays. As such, the prosecutrix was more than 18 years of age and hence the charge under Section 363 IPC or 366 IPC also does not survive. Ld. Counsel has thus prayed for acquittal of the accused.
16. On the other hand, Ld. Addl. PP has supported the prosecution case and has stated that the prosecution has been able to prove its case beyond reasonable doubt. It has been stated that although the prosecutrix has not S.C. No.71/10 FIR No.154/09 State vs. Akram 10/20 supported the prosecution case but her medical examination clearly shows that there was sexual intercourse with her. It has been further argued that age of the prosecutrix has been determined to be between 16.4 years to 19 years and hence the age of the prosecutrix should be taken as less than 18 years keeping in view the age of her elder sibling to be 20 years as stated by her father in his deposition. Ld. Addl. PP also relied upon the deposition of the prosecutrix to argue that the prosecutrix has clearly stated that she was enticed by the accused for marriage and hence the charge under Section 366 IPC is also proved. Ld. Addl. PP has thus prayed for conviction of the accused under Section 363/366/376 IPC.
17. I have heard both the sides. As noted earlier, one of the charges framed against the accused is under Section 376 IPC. Section 376 IPC prescribes punishment for the offence of rape which is defined under Section 375 IPC as under:-
"375. Rape.-A man is said to commit "rape" who, S.C. No.71/10 FIR No.154/09 State vs. Akram 11/20 except in the cases hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First-Against her will.
Secondly-Without her consent. Thirdly-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly,-With her consent, when the man knows that he is not her husband, and that her consent is given because she believed that he is another man to whom she is or believed herself to be lawfully married.
Fifthly-With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.-With or without her consent, when she is under sixteen years of age.
Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary S.C. No.71/10 FIR No.154/09 State vs. Akram 12/20 to the offence of rape.
Exception-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
So one of the ingredients of the offence of rape is that sexual intercourse should have been done against the will or without the consent of the woman. Clause six says that the sexual intercourse will be rape even if it is done with the consent of a woman if she is under 16 years of age.
18. Prosecutrix has deposed as PW-2. In her examination-in-chief, she had clearly stated that "on 11.06.2009, I left my house with Akram and went to NOIDA where Akram had taken a room on rent. In that room, we stayed together for about six days and thereafter we both were apprehended by the Police. Accused had enticed me on the pretext of getting marriage to me. Nothing else happened there." She was declared hostile and in her cross-examination by the Ld. Addl. PP, she denied the suggestion of rape against her. She was S.C. No.71/10 FIR No.154/09 State vs. Akram 13/20 medically examined on 17.06.2009 after her recovery where she gave her age as 20 years and her MLC was proved as Ex.PW7/A wherein it is recorded that "she is 20 years old and ran away from home with a known boy Akram on 11.06.2009 and living with him willfully since then. She had intercourse 3 to 4 times with her consent and was recovered by the Police on 17.06.2009." The age of the prosecutrix is more than 16 years and as such the act of sexual intercourse is not covered even by Clause six of Section 375 IPC. In her court deposition, the prosecutrix stated that no sexual intercourse took place with her whereas at the time of her medical examination, she had stated that on 3 to 4 occasions, she had sexual intercourse with the accused with her consent. So either there was no sexual intercourse or if at all it was there, it was with the consent of the prosecutrix. It is one of the basic ingredient of Section 375 IPC that the sexual intercourse should have taken place with the prosecutrix against her will or without her consent. Both these elements are missing in this case and hence the charge of S.C. No.71/10 FIR No.154/09 State vs. Akram 14/20 rape is not proved against the accused.
19. The other charges against the accused are under Section 363/366 IPC. Section 363 IPC deals with punishment for kidnapping and the offence of kidnapping from lawful guardianship is defined under Section 361 IPC, according to which, if a girl upto the age of 18 years is taken or enticed by any person out of the keeping of the lawful guardian of such minor without the consent of such guardian, the offence of kidnapping is complete. Section 366 IPC prescribes punishment for kidnapping a woman for enticing her for marriage or for illicit sexual intercourse. Therefore, first of all, in order to prove the charge under Section 366 IPC, charge under Section 363 IPC is necessary to be proved as the offence of kidnapping is involved in both the offences i.e. punishment under Section 363 IPC as well as under Section 366 IPC. It is the purpose of kidnapping which has to be marriage or illicit intercourse which is punishable under Section 366 IPC. Apart from these ingredients, age of the girl S.C. No.71/10 FIR No.154/09 State vs. Akram 15/20 kidnapped is very material to decide as to whether the offence of kidnapping is made out or not. Section 361 IPC has prescribed, age of such a woman to be below 18 years of age. The prosecution is thus obliged to prove the age of the prosecutrix to be below 18 years of age so as to prove the offence of kidnapping against the accused. None of the witnesses examined on behalf of the prosecution has been able to prove the exact age of the prosecutrix. No date of birth certificate of the prosecutrix has either been produced on record or proved by the prosecution. PW-1 Lal Babu, who is father of the prosecutrix had stated in his cross-examination that the prosecutrix had studied in Bihar School where she was got admitted by her Nana and he was not present at that time when she was admitted in the School. He had further stated that he does not know on what basis age of the prosecutrix was given at the time of her admission in school by her Nana. It is thus clear that no cogent date of birth of the prosecutrix is coming forth from the witnesses. There is one School Leaving Certificate on S.C. No.71/10 FIR No.154/09 State vs. Akram 16/20 record as Ex. P-1 which records the date of birth of the prosecutrix as 07.06.1993. As per this School Leaving Certificate, age of the prosecutrix was 16 years and 5 days on 12.06.2009 when she was stated to have disappeared. This Certificate is stated to have been issued by the Principal, Rajkiya Prathmik Urdu Vidyalaya, Kursi Barwah, Anchal Sikta , Distt. West Champaran, Bihar, on 01.02.2005. However, PW-8 Gopal Hazra, who is the Principal of the aforesaid school deposed that the said certificate was never issued from his school where he had taken charge after 25.01.2005. The said certificate purportedly bears the signatures of Ram Chandresh. PW-8 Gopal Hazra has stated that the signatures appearing on the said certificate are not those of Ram Chandresh and according to the records of the school brought by him, the last certificate issued by Principal Ram Chandresh was on 25.01.2005. In other words, PW-8 Gopal Hazra disowned the certificate Ex. P-1. When the prosecutrix was medically examined, her bone-age was recommended by the attending Doctor and according to the report of the S.C. No.71/10 FIR No.154/09 State vs. Akram 17/20 bone-age-X ray, age of the prosecutrix has been opined to be 16.4 to 19 years. This report was proved by PW-10 as Ex.PW10/A. The law on the part of the determination of age by bone-age X-ray is settled as a margin of error of two years of either side has been judicially accepted. In Java Mala vs. Home Secretary, Government of Jammu & Kashmir, AIR 1982 SC 1297 in Para 9, it was observed that one can take judicial note that the margin of error in age ascertained by Radiological examination is two years of either side. Similar view was expressed in Mohar Singh Vs. State 2003 (103) DLT 421 by Delhi High Court. Accordingly, age of the prosecutrix could be more than 18 years on the date of incident if an error of margin of two years is given on the higher side of the estimation of her age. The arrest of the accused is not free from doubt. PW-3 Ct. Vishambar Dayal had stated that the accused was seen coming in an Auto at Ashram Chowk from the side of Maharani Bagh and at that time, he and the prosecutrix were noticed and the accused was arrested. However, PW-9 Retd. ASI Bansi Ram (IO) had S.C. No.71/10 FIR No.154/09 State vs. Akram 18/20 stated that the accused and the prosecutrix were seen coming on foot at Ashram Chowk where the accused was arrested. Hence, there is a doubt as to whether the accused was coming by Auto when he was arrested or was he coming on foot when he was arrested? Apart from it, even the date of missing of the prosecutrix is not clear. The informant had stated in the FIR that the prosecutrix went missing on 12.06.2009. However, the prosecutrix in her deposition had stated that she had eloped with the accused on 11.06.2009. The same version was given by her to the Doctor, who attended her at the time of her medical examination as recorded in her MLC Ex. PW-7/A. The FIR was registered on 15.06.2009 and no explanation is forthcoming for the delay in registration of the FIR. There is no statement of the prosecutrix under Section 164 Cr.P.C and there is no explanation from the prosecution as to why such a statement was not recorded. The School Leaving Certificate Ex.P-1 was seized on 12.07.2009 when the accused had already been arrested on 17.06.2009 and the prosecutrix had already been S.C. No.71/10 FIR No.154/09 State vs. Akram 19/20 recovered on 17.06.2009. The prosecutrix after being recovered refused to go alongwith her parents and was sent to Nari Niketan which shows that she had gone with the accused with her consent. All these factors taken together casts serious doubts on the veracity of the prosecution case. It is well settled principle of criminal trial that if two opinions are possible, non favourable to the accused is to be given precedence. Hence, when the age of the prosecutrix was more than 18 years on the date of offence, charge under Section 363 and consequently charge under Section 366 IPC cannot be proved against the accused. The accused is thus entitled to be acquitted and is hereby acquitted of the charge under Section 363/366/376 IPC.
20. File be consigned to the Record Room.
Announced in the open Court. (Rajeev Bansal) Dated:16.05.2012 ASJ-3/South District Saket Courts, New Delhi S.C. No.71/10 FIR No.154/09 State vs. Akram 20/20