Delhi District Court
State vs Mohd. Talib on 29 November, 2010
IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS
JUDGE05(NE): KARKARDOOMA COURTS: DELHI.
SC No. 59/10
Date of institution: 26.05.2009
Received on transfer03.03.2010
Reserved for order: 27.11.2010
Date of delivery of order: 29.11.2010
State vs Mohd. Talib
S/o Mohd. Shakir
R/o Village Sabad, PS Allapur, Tiraha
District Hardoi, UP.
FIR NO.102/09
PS Bhajanpura
U/s 363/376 IPC
JUDGMENT:
1. On 03.03.2009 complainant Parmanand lodged a missing report in the police station regarding missing of his daughter aged about 12 years which was recorded through DD no. 12B. Again on 08.03.2009 complainant went to the police station and made a statement showing his suspicion towards one Talib. Statement was recorded and rukka was prepared and the case was registered against accused Talib u/s FIR No.102/09 PS Bhajanpura 1/22 363 IPC. On 09.03.09 father of the prosecutrix again went to the police station and informed about the availability of his daughter and accused in the area of Old Mustafabad, Loni Ghaziabad, UP in a rented house. IO ASI Suresh along with Ct. Geeta, Ct. Surender and parents of the prosecutrix went to Old Mustafabad, Loni Ghaziabad UP where prosecutrix was recovered and the accused was arrested after his personal search was conducted. Accused also made a disclosure statement. Medical of the accused as well as prosecutrix was got conducted. Sealed parcel and sample seal received from the hospital were seized. Case property was deposited in malkhana. Father of the prosecutrix handed over her School Leaving Certificate to the IO which was got verified from the school. Statement of the prosecutrix was got recorded u/s 164 Cr PC. Case property was sent to FSL and later on the FSL report was collected. On the basis of the material collected during investigation, charge sheet was filed against the accused u/s 363/376 IPC
2. On the accusations, accused was charged for the offence punishable u/s 363/376 IPC to which he pleaded not guilty and claimed trial.
3. Prosecution has examined 13 witnesses to prove its case.
FIR No.102/09 PS Bhajanpura 2/22 ● PW1 is the prosecutrix who proved her statement u/s 164 Cr PC recorded by Ld. MM as Ex. PW1/A. ● PW2 is ASI Dinesh Bhargava who recorded FIR. He has proved the photocopy of FIR as Ex. PW2/A. ● PW3 is Sumitra, mother of the prosecutrix. ● PW4 is Parmanand, father of the prosecutrix who proved the complaint lodged by him as Ex. PW4/A. ● PW5 is Ct. Geeta Bhati in whose presence the accused was
arrested from the house of Rahisu vide arrest memo Ex. PW5/A and his personal search was conducted vide memo Ex. PW5/B. She took the prosecutrix to GTB hospital for medical examination. Doctor handed over the exhibits preserved to her which she further handed over to IO and was seized by the IO vide seizure memo Ex. PW5/C. ● PW6 is Ct. Rajesh. he got accused Mohd Talib medically examined from GTB hospital. Samples preserved by doctor were given to him which he handed over to IO which were seized by him vide seizure memo Ex. PW6/A. ● PW7 is Ct. Surender. He accompanied the IO to Old Mustafabad, Loni, Ghaziabad, UP on the night of 08.03.09 where the accused was found. Accused was arrested in his presence. Accused was FIR No.102/09 PS Bhajanpura 3/22 interrogated by the IO and his disclosure statement was recorded vide Ex. PW7/A. ● PW8 is Ms. Shivali Sharma, Ld. M. M., who proved the application moved for recording of statement u/s 164 Cr PC of the prosecutrix as Ex. PW8/A. She proved the proceedings conducted as Ex. PW8/B. Statement of the prosecutrix is Ex.PW8/C and the certificate appended thereto is Ex. PW8/D. The application moved by the IO for supply of the copy of the statement was allowed vide Ex.PW8/E. ● PW9 is Dr. Shagun Sinha who has proved the MLC prepared by Dr. Sapna as Ex. PW9/A. She stated that Dr. Sapna has left the hospital and her whereabouts are not known. However, she identified handwriting and signatures of Dr. Sapna.
● PW10 is Dr. Parmeshwar Ram, CMO, GTB Hospital. He stated that Mohd Talib was medically examined by Dr. Sumit under his supervision being CMO in GTB hospital. Dr. Sumit has left the services of GTB hospital and he identified the handwriting and signatures of Dr. Sumit. The MLC prepared by Dr. Sumit is Ex.
PW10/A.
● PW11 is Vijender Pal, Principal of Gagan Deep Bal Vidyalaya,
FIR No.102/09 PS Bhajanpura 4/22
Khata Mawana, Meerut, UP who has proved the School Leaving Certificate of the prosecutrix as Ex.PW11/A and stated that according to this certificate her date of birth is 14.05.1997 and has also proved the relevant page in the school admission register as PW11/B. ● PW12 is Ct. Brahan Parkash who took the exhibits in sealed condition from the malkhana and deposited the same to FSL Rohini and handed back the receiving copy of the RC to the IO. He did not temper with exhibits in any manner till they remained in his possession.
● PW13 is ASI Suresh Hiwarkar, IO of the case who stated that on 03.03.09 complainant lodged missing report regarding the prosecutrix which was recorded through DD no. 12B and proved as Ex. PW13/A. Again on 08.03.09 complainant made another statement showing his suspicion towards accused Talib. His statement was recorded as Ex. PW4/A. He prepared rukka on the basis of the same which is Ex. PW 13/B. On 09.03.2009 complainant Parmanand informed about the availability of the accused and the prosecutrix in the area of Old Mustafabad, Loni, Ghaziabad in a rented house. He arrested the accused vide Ex.PW5/A after conducting his personal search vide Ex. PW5/B. Accused made disclosure statement which he recorded as FIR No.102/09 PS Bhajanpura 5/22 Ex.PW7/A. He also inquired from the girl and recorded her statement as Ex. PW13/C. He also got the accused as well as prosecutrix medically examined vide Ex. PW10/A and Ex. PW9/A respectively. He also took sealed parcel and sample seal from Ct. Geeta and Ct. Rajesh and seized them vide seizure memo Ex. PW5/C and Ex. PW6/A. The father of the prosecutrix handed over School Leaving Certificate to him which he got verified from the school. Statement of prosecutrix was got recorded u/ 164 Cr PC. Case property was sent to FSL for examination. The FSL report as well as serological report is collectively exhibited as Ex. PW13/E.
4. Statement of accused was recorded u/s 313 Cr PC in which he denied the prosecution case and pleaded innocence.
5. I have heard Addl. Public Prosecutor for State and Counsel Mr. A. K. Tiwari, Amicus Curiae for accused and gone through the entire record.
6. The testimony of PW1 Prosecutrix is very significant wherein she has deposed that on 01.3.09 a private bus was parked in front of her jhuggi. One Talib (accused) who was working in the said bus called her inside the bus. He induced her and took her with him at Loni. From Loni he took her to Hardoi. After three four days he brought her FIR No.102/09 PS Bhajanpura 6/22 at Loni and took her in a room already taken on rent by him and was kept in that room for about 34 days and then she stated that 'Usne mere sath galat kaam kiya'. In reply to the court question she stated that 'Usne mere kapre khole mere ko nanga kar diya. Talib ne bhee apne pehna hua payjama, baniyan and underwear uttar diya mere sath jabardasti rape kiya'. He also extended threat of killing her family members in case she would disclose this incident to anyone. From there they were apprehended by the police officials and taken to police station Bhajanpura. She was also taken to Karkardooma Court for recording of her statement by the Magistrate. She was got medically examined at a hospital. Her internal examination was also conducted by the doctor. Her underwear and salwar worn by her at the time of commission of rape were also taken in possession by the doctor. She was sent to Nari Niketan where she remained for 45 days and thereafter her custody was given to her parents and since then she had been living with her parents. Her School Leaving Certificate was obtained by the police official from Gagan Deep Bal Vidhalaya, Village Khata, Tehsil Mawana, District Meerut. Her mother was also with her in the hospital when she was medically examined. Her thumb impression was also taken on the MLC but she could not identify her FIR No.102/09 PS Bhajanpura 7/22 thumb impression on the MLC. She identified one salwar, shirt, inner and underwear black color which were produced before the court.
7. In her cross examination by the defence she stated that there are seven members in her family. She was eldest among all brothers and sisters. Her younger brother is three years of age. Talib was known to her 15 days prior to the incident. Talib sometimes used to come to her house in the presence of her family members. He used to live in the bus sometimes. She could not tell the number of the private bus. Accused took her on 01.03.09 at about 3.00 PM. Accused Talib called her from her house by raising his voice from the bus. Her mother was present at her house at that time. She left her house without intimating her mother. The place of parking of the bus was a thoroughfare and many other buses were also parked there. No other person was present in the buses parked there. There was no other person present inside the bus except accused Talib. They remained in the bus for about five minutes. Thereafter she was taken from the spot in an auto hired by him. Auto took one hour in reaching Loni at the house of the accused. They remained there for about two hours. She admitted that there were many persons seen in the way and there were red lights in the way till Loni and she also saw police officials on the way. She did not raise FIR No.102/09 PS Bhajanpura 8/22 any voice in the way. She was taken to Hardoi by bus and till bus stand by an auto. She was also having extra clothes with her. Accused kept her with him continuously for five six days and on each day he committed rape on her. She admitted that many other persons were also living at Hardoi but she did not narrate the incident to anyone. She volunteered that the accused had extended threats of killing her family members if she would narrate this incident to anyone. She admitted that she did not state the fact that accused forcibly committed rape on her and also extended threat of killing her family members in case she would disclose this incident to anyone in her statement u/s 164 Cr PC recorded by Ld. MM. However, she stated the same before the police officials that accused committed rape on her without her consent but she did not state to the police officials that accused extended threat to her for not disclosing this incident to anyone. She denied the suggestion that she had stated in the court that accused extended threat only at the instance of her parents. Her medical examination was conducted on the next day from the date of her arrest. She denied the suggestion that no threatening was given by the accused to her at any point of time and that she was deposing falsely at the instance of her parents, police officials and IO of the case.
FIR No.102/09 PS Bhajanpura 9/22
8. Mother of the prosecutrix Smt. Sumitra stated that she did not know the exact date of birth of her daughter. On 1st March of the previous year, accused whose name she did not recollect had taken away her daughter from the shop of Parmanand, a potter. She used to reside near the shop of the potter. On 3rd march, a complaint was lodged at police station. On 8th March her daughter was recovered from a place falling in the area of Loni. When here daughter met her, she complained her that accused had enticed her away on the pretext of roaming. Her daughter had not narrated anything else to her. Her daughter was subjected to medical examination and thereafter she was taken to the Court.
9. In her cross examination she stated that her daughter had studied upto 5th standard. She left her schooling about three years ago. At the time of admission of her daughter in a school, her date of birth was given on the basis of a document which was kept by them when prosecutrix was born. The said document was prepared by Pandit at the time of the birth of the prosecutrix. She gave birth to the prosecutrix at her native village. The prosecutrix did her schooling in the village. She came to Delhi when prosecutrix left her schooling in 5th standard. The prosecutrix was residing with her grand mother in FIR No.102/09 PS Bhajanpura 10/22 her native village. She joined their company in Delhi around two years ago. She denied the suggestion that prosecutrix was aged about 18 years or above. She volunteered that the prosecutrix was 12/13 years. She further stated that she has five children and the youngest child is five years old. She stated in her statement that when the prosecutrix went missing she was not at home. Though the same is in contradiction to the statement of the prosecutrix who stated that her mother was at home when she left. However, she left her house without intimating her mother. She further stated that her children were present at home. In the evening time she came to know that Pooja was missing. By that time it was 6 or 7 PM. Her husband, his elder brother and herself had gone to police station when complaint was lodged. She did not know if the police had recorded her statement on that very day when she lodged a complaint. She did not join the police at any point of time after 3rd March, 2009 in the present case. She again stated that she joined the investigation of this case with police on the day when her daughter was recovered. Police did not record her statement at any point of time. She denied the suggestion that the prosecutrix had gone with accused Talib on her own and she was a major when she joined the company of the accused.
FIR No.102/09 PS Bhajanpura 11/22
10. Another material witness is Parmanand, father of the prosecutrix. He stated that he was illiterate and could not tell the date of birth of his daughter. He stated that it was 1st day of month of March of the last year. He had gone in connection with his job. He returned home around 1.30 pm and came to know through his wife that prosecutrix had gone to purchase a suit and had not returned so far. This is also in contradiction to the statement of the mother of the prosecutrix PW3 who has not stated so in her testimony before the court. He again went to his job sensing that prosecutrix may return. When he returned home in the evening prosecutrix was still not at home. He searched for prosecutrix in his relations but no clue was found. After two days of missing of prosecutrix he lodged complaint before the police vide Ex. Ex.PW4/A. On or around 8th March his daughter was recovered by the police in his presence from the area of village Loni. His daughter was found in the company of accused Talib. Accused Talib used to park his vehicle in front of their house. He also stated that after they were brought to police station, they were got medically examined from the hospital. Thereafter he brought prosecutrix to his home. The prosecutrix had attended the school at Meerut. He was living under fear as accused had extended threat to him.
FIR No.102/09 PS Bhajanpura 12/22
11. It has been contended by the defence Counsel Mr. A. K. Tiwari that from the statement of the prosecutrix it is evident that she accompanied the accused out of her own volition. That he took her from Loni to Hardoi and she must have come across several people while traveling from Loni to Hardoi but she never raised any shouts or alarm to tell the people that under duress or threat she was being taken by the accused. He has pointed out to the portion of the statement of the prosecutrix wherein she has stated that she was taken from the spot in an auto hired by them at about 1 to 2 meters. Auto took one hour in reaching Loni at the house of the accused. They remained there for about 2 hours. She herself admitted that many persons were seen in the way and many red lights came in the way till Loni and she also saw police officials on the way. She did not raise any voice in the way. She was taken to Hardoi by bus and till bus stand by auto. He has pointed out a very important factor which is indicative of the fact that the prosecutrix voluntarily accompanied or eloped with the accused when she has said that she was having extra clothes with her. A person who would go under threat would never carry an extra pair of clothes with her. She further stated that she did not narrate this incident to anyone in the way though many persons were travelling in the bus and also FIR No.102/09 PS Bhajanpura 13/22 met her in the way. Accused kept her with him continuously for five six days and on each day he committed rape upon her. She also admitted that many other persons were living at Hardoi but she did not narrate this incident to anyone. The witness stated that as the accused extended threat of killing her family members she did not narrate this incident to anyone. It has been contended by the defence counsel that this is a very routine type of excuse which has been taken by the prosecutrix. Generally young people of this age elope, living their houses on their own volition and when the things fall apart they make such routine excuses. She admitted that she did not state the fact that accused forcibly committed rape on her and also extended threat of killing her family members in case she disclosed this incident to anyone in her statement u/s 161 Cr PC recorded by Ld. M.M. The statement u/s 164 Cr.P.C clearly reflects that the prosecutrix accompanied the accused of her own volition and had physical relations with him out of her own consent and volition. The statement of the prosecutrix before the Ld. MM proved as Ex. PW1/A is as follows: 'On 1st March, 2009 I ran away with Talib with my own will. I had gone with him on my own and he is not to be blamed for this. Unka FIR No.102/09 PS Bhajanpura 14/22 koi kasoor nahi hai'
12. The defence counsel has taken the court through the evidence of the prosecutrix in all details and has tried to urge that the conduct of the prosecutrix while accompanying the accused and her stay at Hardoi clearly indicated her consent and willingness. She had several opportunities to raise hue and cry against the so called threats of the accused. The fact that she did not do so should be construed as an apparent consent on the part of the prosecutrix. If therefore, she is found above 16 years of age the acts of the accused cannot tantamount to any offence under the Code. It was a voluntary act on the part of the prosecutrix to accompany him. There was no enticement, deception or force on the part of the accused to remove prosecutrix from the custody of her parents.
13. The next question which therefore crops up for consideration is whether the prosecutrix was 16 years of age at the time of incident. If it is found that she was less than 16 years of age the matter of consent would fall into insignificance. The law does not recognise consent by a female below 16 years when she is subjected to sexual intercourse.
14. As regards the age of the prosecutrix. Ld. Prosecutor has relied upon the statement of PW11 Vijender Pal who proved the school FIR No.102/09 PS Bhajanpura 15/22 leaving certificate of the prosecutrix wherein her date of birth is indicated as 14.5.1997 which shows her date of birth as 11 years 9 months 17 days on 01.03.09. It has been contended by defence counsel that much reliance cannot be placed on the date of birth reflected in the school leaving certificate of the prosecutrix being maintained by a private school i.e. Gagan Deep Bal Vidyalaya, Khata Mawana, Meerut, UP. PW11 also proved the entries in the register showing her date of birth as 14.5.1997. The question arises as to whether the date of birth recorded in school register is admissible in evidence and can be relied upon without any corroboration. In his cross examination PW11 Vijender Pal, Principal of Gagan Deep Bal Vidyalaya, Khata Mawana, Meerut, UP has stated that they did not ask for any documents regarding date of birth of the child at the time of his / her admission in the school. They believe the date whatever is disclosed by the parents of the child. They do not make any inquiries nor do they ask for any document as a proof for their date of birth. He could not tell who came to get Pooja admitted in the school. However, he presumed that her parents might have come and they disclosed the date of birth which has been mentioned on record. The question arises regarding the authenticity of the document produced by PW11 by FIR No.102/09 PS Bhajanpura 16/22 way of her school leaving certificate as also the entries made in the register. In State of Bihar & Ors. Vs Radha Krishna Singh & Ors, AIR 1983 SC 684 the Court observed that "admissibility of a document is one thing and its probative value quite another and these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight of its probative value may be nil...................
The probative value of documents which, however ancient they may be, do not disclose sources of their information or have not achieved sufficient notoriety is precious little".
15. Therefore a document may be admissible but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. However, there are some differences in the case referred to and the case in hand as in that case it was the document maintained and prepared by a Government official whereas it is not so in the instant case. In the present case, the school leaving certificate and the entries in the register produced by PW11 Vijender Pal, Principal of Gagan Deep Bal Vidyalaya, Khata Mawana, Meerut, UP, a private school, has little weight. Therefore it requires corroboration from other sources. It has been FIR No.102/09 PS Bhajanpura 17/22 pointed out by the defence counsel that when the statement of the prosecutrix was recorded vide Ex. PW8/B on 17.3.09 u/s 164 Cr PC, she got her age recorded as 15 years. Whereas when she testified before the Court on 17.11.09 she gave her age as 13 years. Her mother Sumitra stated the age of her daughter to be 1213 years old and she also stated that she was illiterate and she did not know the exact date of birth of her daughter Pooja. The defence counsel has contended that if the witness herself is saying that she did not know the correct date of birth and she was unable to tell the same before the court, how could she have given correct date of birth of the prosecutrix at the time of her admission in the school. It has also been pointed out that the mother of the prosecutrix has given her age as 25 years which means that she gave birth to the prosecutrix when she was about 12 years of age which again creates doubt about the age having been recorded in the school certificate.
16. In her cross examination PW3 Sumitra, mother of the prosecutrix stated that at the time of admission of the prosecutrix in the school her date of birth was given on the basis of a document which was kept by them when prosecutrix was born and the said document was prepared by a Pandit at the time of birth of the prosecutrix. However, no such FIR No.102/09 PS Bhajanpura 18/22 document has been produced by the prosecution to prove the authenticity of the date recorded in the school leaving certificate of the prosecutrix.
17. PW4 Parmanand has also stated that he is an illiterate person. He has given his age as 35 years. He stated that prosecutrix was about 12 13 years. The defence counsel has also pointed out that there is contradiction in the statement of the mother of the prosecutrix and father of the prosecutrix. Mother of the prosecutrix states that a document was prepared by some Pandit at the time of birth of the prosecutrix. While PW4 stated that at the time of birth of the prosecutrix his father had noted down her date of birth and that document was produced before the school authority when prosecutrix got admission in the school. Therefore the defence counsel has contended that the school leaving certificate and oral evidence brought on record by the prosecution are doubtful. The opinion of radiologist regarding age should be accepted. He has also relied upon Sachindra Nath Mazumder Vs Bistupada Das, 1978 Cri. L. J 1494 wherein it has been held that "the best evidence as to the age of the prosecutrix is her date of birth as per school admission register and in absence of birth certificate the ossification test has to be taken into consideration.
FIR No.102/09 PS Bhajanpura 19/22 It was further observed that the ossification test is not a sure test although it is generally accepted as the best available test for determination of the age of human beings". The defence counsel has stated that there is doubtful oral evidence and suspicious evidence in the shape of school leaving certificate. The court should give all importance to the opinion of radiologist regarding the bony age of the prosecutrix. He has also relied upon Brij Mohan Vs State, 38 (1989) DLT 15. In somewhat similar facts the Court preferred the assessment of age given on the basis of ossification test.
18. I find substance in the contentions of the defence. Ossification test is one of the tests to find out the age. It is well known that the determination of age by ossification test is neither absolute nor exact. Variation of age in the ossification test can be up to 3 years in either way. The High Court of Bombay in the case of Balasaheb Vs The State of Maharashtra, 1994 Cri. L. J 3044, after referring to Modi's Medical Jurisprudence and Toxicology (First Edition) expressed thus: "It is observed that the error in the case of age based on ossification test may be three years."
The defence has submitted that the school leaving certificate cannot form the basis to determine the age, as the guardians have a FIR No.102/09 PS Bhajanpura 20/22 tendency to understate the age of their children at the time of admission in the school; that as per the report the victim girl was between 16 to 17 years of age. No doubt there can be an error in the periphery of three years. But the benefit of the error has to go in favour of the accused in view of the obtaining circumstances.
19. On the facts and circumstances, there arises a lingering doubt regarding the case of the prosecution that the prosecutrix was a minor at the time of the occurrence and the benefit of doubt should be given to the accused. According to Modi's Medical Jurisprudence and Toxicology (21st Edition) it is observed that the error in case of age based on ossification test may be +3 years. In his examination PW13 ASI Suresh Hiwarkar, IO of the Case stated that as per advice of doctor, bony age examination was conducted of the prosecutrix. As per the report of the doctor the prosecutrix was of the age between 16 to 17 years and the report of bony age examination was proved as Ex. PW13/DA. As per report of the doctor the age of the prosecutrix was 16 to 17 years. Therefore if a benefit of two years is given, the consent of the prosecutrix to have sexual intercourse with the accused and to leave the custody of her parents stands proved. The accused is entitled to advantage of marginal error based on ossification test. The above FIR No.102/09 PS Bhajanpura 21/22 facts clearly show that the prosecutrix accompanied the accused right from Loni to Hardoi voluntarily. She stayed with the accused from 01.3.09 to 09.03.09 out of her own willingness and therefore the prosecution has failed to prove its case against the accused u/s 363 IPC.
20. The reasonings stated above also clearly reveal that there was consent on the part of the prosecutrix to have sexual intercourse with the accused and that she was a major. Accordingly benefit of doubt is conferred upon the accused and he is acquitted of the offence u/s 363/376 IPC.
Announced in open court (Nisha Saxena)
Dated: 29.11.2010 Addl. Sessions Judge05(NE);
Karkardooma Courts, Delhi.
FIR No.102/09 PS Bhajanpura 22/22