Delhi District Court
State vs . Mohd. Anwar S/O Sh. Wazid Ali R/O ... on 7 May, 2011
1
IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM
ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 11/2010
Unique Case ID No. 02402R0021172010
State Vs. Mohd. Anwar S/o Sh. Wazid Ali R/o 132/142, Badshahi Mandi,
Allahabad, U.P.
FIR No. 320/09
PS Shahdara
U/s 363/366/376 IPC.
Date of Institution : 09.02.2010
Date of reserving the Judgement : 03.05.2011
Date of Pronouncement : 07.05.2011
J U D G E M E N T :
1. Prosecution case emanates from the facts that on 01.10.2009, Smt. Jyoti came to the police station and got her statement recorded to the effect that she alongwith her family was residing at house No.B83, Gali No.10, New Modern Shahdara, Delhi. Her sister Pooja (name changed), aged about 14 years 9 months and 24 days, who was wearing pink colour suit salwar, was missing since the evening of 30.09.09 and no information has been received from any quarter despite making search for her. She believes that Anwar, a mechanic by profession, who lives in their neighbourhood has enticed away and kidnapped her sister. On the basis of her statement, a case for the offence under section 363 IPC was registered. Investigation of the case was entrusted to ASI Satya Parkash. During the course of investigation, it was revealed from one Ibrahim, who was residing in S.C. No. 11/10 Page 1/26 2 the neighbourhood of complainant Jyoti that Anwar son of Wajid Ali was a native of Badshahi Mandi, Allahabad. He used to work at his shop and has not come at his shop since 30.9.2009. Smt. Jyoti produced school leaving certificate of her sister Pooja for the year 200708 showing her date of birth as 07.1.1995. Same was seized by the investigating officer. Thereafter, ASI Satya Parkash alongwith Ct.Santosh and WHC Shashi and complainant Smt. Jyoti left for Allahabad and reached the house of Mohd. Anwar. After making enquiries from the nearby vicinity, it came to light that Mohd. Anwar had come there alongwith a girl aged about 1415 years but now he has returned back to Delhi. ASI alongwith his staff and complainant came back to Delhi and at the Old Delhi Railway Station, accused Mohd. Anwar alongwith girl Pooja were apprehended on the identification of complainant Smt. Jyoti. Prosecutrix was enquired and divulged that Anwar had taken her on the pretext of roaming but later on, she was taken by him to his house at Allahabad where his mother did not allow them to live in the house. On 2.10.2009, accused married her without her consent and took her to the house of his acquaintance where he committed rape upon her without her consent. Thereafter the accused was arrested in the case. Sections 366 and 376 IPC were added. After completion of the investigation charge sheet was submitted against the accused.
2. Charge for offences punishable under sections 363, 366 and 376 IPC was framed against the accused, to which charge he pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined 16 S.C. No. 11/10 Page 2/26 3 witnesses in all. They are Head Constable Suraj Pal Singh (PW1), Constable Santosh (PW2), Const. Suraj Bhan (PW3), HC Akhileshwar (PW4), Constable Brahmpal (PW5), Dr.Sarika Gupta (PW6), Dr.Parmeshwar Ram (PW7), Constable Rekha (PW8), Head Constable Shashi (PW9), Pooja (PW10) Smt. Jyoti (PW11), Smt. Manju Rajput (PW12), Ct. Amit Kumar (PW13), ASI Satya Parkash (PW14), Shri Sanjay Khanagwal, ld. M.M. (PW15) and SI Usha (PW16).
4. HC Suraj Pal Singh (PW1) has stated that on 1.10.2009 he recorded the statement of Complainant Ms.Jyoti on the basis of which FIR was registered, copy of which is Ex.PW1/A. PW2 Ct. Santosh and PW9 HC Shashi both have testified that on 09.10.2009 they accompanied ASI Satya Parkash and complainant Jyoti to Alahabad U.P. in search of the accused where they came to know that accused alongwith the prosecutrix has returned back to Delhi. They also came back and at Old Delhi Railway Station, accused alongwith the prosecutrix were overpowered and brought to PS where accused was arrested vide arrest memo Ex.PW2/A and his personal search was taken vide memo Ex.PW2/B. From the possession of accused, marriage certificate Ex.PW2/D was recovered which was seized by the IO vide memo Ex.PW2/C. PW3 Constable Suraj Bhan has deposed with regard to deposit of sealed parcels and sample seals with FSL Rohini for chemical examination of the case property.
PW4 HC Akhileshwar, MHCM, has testified that on 11.10.2009 three sealed parcels and one sample seal were deposited by ASI S.C. No. 11/10 Page 3/26 4 Satya Parkash and two sealed parcels with one sample seal were deposited by SI Usha regarding which he made entries in register No. 19 at serial No. 2952 and 2953. On 23.11.2009, he sent all the five sealed parcels and two sample seals to FSL Rohini through Const. Suraj Bhan vide RC No.64/21.
PW 5 Ct. Brahmpal got the accused medically examined from GTB Hospital on 11.10.2009 on the directions of the IO and handed over the two sealed parcels and a sample seal to the IO, which were given by the doctor after examination.
PW6 Dr.Sarika Gupta medically examined the prosecutrix on 11.10.2009 and prepared her MLC Ex.PW6/A. PW7 Dr. Parmeshwar Ram medically examined accused and prepared his MLC Ex.PW7/A. PW8 Constable Rekha (PW3) took the prosecutrix to GTB Hospital for her medical examination.
PW10 is the prosecutrix. In order to avoid repetition, her testimony would be discussed at later stage.
PW11 is Ms.Jyoti, the complainant, who is sister of the prosecution. She has reiterated the similar facts as stated by her in her report by stating that her sister Pooja went missing since the evening of 30.9.09 and could not be traced despite making search. Ultimately, she lodged a report Ex.PW1/A with the police on 01.10.2009. She also handed over school leaving certificate Ex.P11/1 of her sister to the police which was seized vide memo Ex.PW11/A. She tried to search her sister with the help of the police. A telephone call was received from her sister on 10.10.2009 at about 9.30 p.m. whereby she S.C. No. 11/10 Page 4/26 5 informed that she was present at Old Delhi Railway Station. She went to the Railway Station alongwith the police where her sister alongwith accused Mohd. Anwar was present. Her sister narrated the facts to her regarding her taking away by the accused after inducing her on the pretext of roaming in the area and that she did everything at the instance of accused. She also told that the accused Anwar asked her (the prosecutrix) to marry him and only then, he will take her back to Delhi and since she wanted to come back to Delhi as such she did whatever the accused asked her to do. Recovery memo Ex.PW2/D was prepared with regard to recovery of her sister. Accused was apprehended and prosecutrix was sent to Nari Niketan for about 20 days. She accompanied the prosecutrix and the police officials to GTB Hospital where her sister was medically examined. Later on, her sister Pooja was handed over to her. She also stated that perhaps on 9th day of the month, she also accompanied the police officials to Allahabad in search of prosecutrix where they came to know that she as well as accused have come back to Delhi. Then she alongwith the police also returned to Delhi and accused and prosecutrix were apprehended at the Old Delhi Railway Station. Prosecutrix had told her that accused has performed marriage with her and has committed sexual intercourse with her without her consent.
PW12 Smt. Manju Rajput, Principal, Nagar Nigam Prathmik Balika, Vidyalaya East Vinod Nagar, Delhi produced the school record and testified that date of birth of Pooja as per school record is 7.1.1995. She sought admission in her school on 24.4.2001 in 1st class and left the school on 20.7.07. School leaving certificate of Pooja is S.C. No. 11/10 Page 5/26 6 Ex.PW12/B, certificate of registration is Ex.PW12/C. She also stated that the date of birth of Pooja was mentioned on the basis of an affidavit submitted by her father Tilak Raj, photo copy of which is Ex.PW12/D. Register.
PW13 Ct. Amit Kumar is a formal witness. He has deposed with regard to his accompanying ASI Satyaparkash to the house of complainant Ms.Jyoti where she handed over school leaving certificate of the prosecutrix which was taken into possession vide memo Ex.PW11/A by the investigating officer.
PW14 ASI Satya Parkash is investigating officer of the case. He has deposed that on 1.10.2009, after investigation of this case was entrusted to him, he alongwith his staff accompanied complainant Jyoti who was present in the police station, to her house at B83, Gali No. 10, New Modern Shahdara, Delhi where she handed over school leaving certificate of her sister, showing date of birth of Pooja as 7.1.1995, which he seized vide memo Ex.PW11/A. She also handed over photograph of her sister. Thereafter on 9.10.2009, on receipt of information, he alongwith WHC Shashi, Ct. Santosh and complainant Jyoti went to Allahabad at the house of accused Mohd Anwar where they came to know that accused and prosecutrix have left for Delhi. Thereafter, on reaching Old Delhi Railway Station, on 10.10.2009 at about 9.30 p.m accused and prosecutrix were found sitting there on the platform. On the pointing out of Jyoti, prosecutrix was recovered vide memo Ex.PW2/D. Accused was interrogated and arrested vide memo Ex.PW2/A and his personal search was taken vide memo Ex.PW2/B. Accused produced photo copy of marriage certificate which S.C. No. 11/10 Page 6/26 7 was seized vide memo ex.PW2/C. Accused was got medically examined and sealed parcels containing underwear and semen sample of the accused handed over by the concerned doctor were seized vide memo Ex.PW14/A. Prosecutrix too was sent for medical examined alongwith Lady Ct. and her sister Jyoti. Case property was deposited in the malkhana. Lateron, investigation of the case was handed over to SI Usha.
PW15 Shri Sanjay Khanagwal, ld. MM has testified that on 12.10.2009 an application was moved by WSI Usha for recording statement of the prosecutrix under section 164 Cr.P.C. and he recorded her statement Ex.PW2/E. PW16 WSI Usha to whom further investigation was handed over, has testified that she got the prosecutrix medically examined through Ct. Rekha and after medical examination, she handed over sealed pullandas which were seized by her vide memo Ex.PW8/A. She deposited the case property in the malkhana and produced accused as well as the prosecutrix before the court. Accused was sent to JC whereas prosecutrix was sent to Nari Niketan. On 12.10.2009 she moved an application Ex.PW16/A for recording statement of the prosecutrix under section 164 Cr.P.C. which was marked to Sh.Sanjay Khanagwal, ld. M.M. who recorded her statement and she obtained copy thereof vide her application Ex.PW16/C. She also got conducted ossification test of the prosecutrix as per directions of the court and obtained report Ex.PW16/D. On 23.11.2009 exhibits of this case were sent to FSL and result of FSL Ex.P1 and P2 was obtained.
In order to afford an opportunity to explain circumstances S.C. No. 11/10 Page 7/26 8 appearing in evidence against the accused, he was examined under section 313 Cr.P.C. He denied all allegations levelled against him. His case has been of denial simplicitor. He claimed himself innocent. He pleaded his false implication in the case. However, in his defence, he has examined one witness, namely, Ibrahim Ahmed, who claimed himself to be employer of the accused. He has deposed that accused Anwar used to work as his shop. He was having an affair with the prosecutrix for the last one year. Brother in law of the prosecutrix came to him and wished him to be a mediator for performing nikah between the accused and prosecutrix. About six months thereafter, he talked to sister of the prosecutrix in this regard but she did not respond.
5. I have heard Sh. Ravinder Khandelwal, ld. Public Prosecutor, for the State and Shri Anurag Dubey, counsel for the accused and have perused the record.
1. It was submitted by ld. Counsel for the accused that testimony of prosecutrix is wholly unreliable and her testimony reflects that she herself had gone with the accused of her own will. She had been writing letters to the accused. She performed nikah with the accused of her own will. She was not minor on the date of incident in as much as as per ossification test, she has been opined to be between 17 to 18 years of age. As such it was submitted that the prosecution has failed to establish its case against the accused and he is entitled to be acquitted.
7. Per contra, it was submitted by ld. Prosecutor that it has been established on record that prosecutrix was a minor, when she was taken by the accused and she has categorically deposed that she was S.C. No. 11/10 Page 8/26 9 confined by the accused and sexual act was committed without her consent. As such testimony of prosecutrix herself is sufficient to convict the accused, which does not require any corroboration, and prosecution has been able to establish its case beyond reasonable doubt and accused is liable to be convicted of the offence alleged against him.
8. As regard submission of ld. Prosecutor that testimony of prosecutrix herself is sufficient to convict the accused, same has force, inasmuch as, there are catena of decisions to this effect that testimony of prosecutrix herself is sufficient and does not require any corroboration.
9. Hon'ble Apex Court in State of Maharashtra Vs. Chandraprakash Kewal Chand Jain AIR 1990 SC 658 laid down that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The court observed as under: " A prosecutrix of a sexoffence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must be attached in evaluation of her evidence as in the case of an injured complainant or a witness and no more. What is necessary is that the S.C. No. 11/10 Page 9/26 10 Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act, which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for corroboration required in the case of an accomplice. The nature of evidence required in to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding, the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence."
10. Similar view is taken in State of Punjab Vs. Gurmeet Singh 1996 (2) SCC 384 and Omprakash Vs. State of U.P. (2006) 9 SCC
787.
11. From the judicial decisions rendered by Hon'ble Apex Court the law as regards the credibility of the testimony of prosecutrix may be summarized thus:
(1) There is no rule of law that corroboration is essential before there can be a conviction solely on the testimony of the prosecutrix.
But as a matter of prudence, the necessity of corroboration must be S.C. No. 11/10 Page 10/26 11 present to the mind of the Judge.
(2) There may be circumstances in a given case which might make it safe to dispense with such a corroboration.
(3) On the other hand, there may be factors in a case tending to show that the testimony of the prosecutrix suffers from infirmities in a manner so as to make it either unsafe or impossible to base a finding of guilt to the same. Some of the salient factors of this type may briefly be stated thus:
(a) circumstances showing on the part of prosecutrix an animus against the accused;
(b) where the question of want of consent is material, circumstances tending to show consent: e.g., absence of material showing an attempt at resistance; absence of any marks of struggle;
(c) attempt in improvement or exaggeration in the version as attempted by the prosecutrix;
(d) conduct on the part of the prosecutrix, inconsistency with the credibility of the version e.g., omission to make a disclosure at the earliest opportunity.
(e) element of artificiality or unnaturalness in the story as attempted by the prosecutrix, and
(f) absence of signs of rape in the findings of the medical examination or on chemical analysis.
12. This being the legal proposition, let us turn to the case in hand. Section 361 IPC enacts the provision that whoever takes or induces any minor under 16 years of age, if a male or under 18 years of age, if a female, or any person of unsound mind to go out of keeping of lawful S.C. No. 11/10 Page 11/26 12 guardian of such minor or person of unsound mind, without consent of such guardian, is said to have kidnapped such minor or person from lawful guardianship. Therefore, to attract provisions of section 361 IPC, following ingredients should be established:
1. There must be taking or inducement of a minor or a person of unsound mind.
2. The minor must be under 16 years of age, if a male or under 18 years of age, if a female.
3. Taking or inducement must be out of keeping of lawful guardianship of minor or person of unsound mind.
4. Taking or inducement must be without consent of guardian of minor or person of unsound mind.
13. The word "entice" involves an idea of inducement by exciting hope or desire in the other. One does not entice another, unless the latter attempted to do a thing, which he or she would not otherwise do. The expression enticing involves that, while the person kidnapped might have left keeping of lawful guardian willingly, still the state of mind that brought about that willingness must have been induced or brought about in some way by the accused.
14 To constitute "taking" of a minor out of lawful guardianship of his/her parents would not suggest that it should be done by force. The work "take" means to cause to go, to escort, or to take into possession. For taking to be complete, it should be shown that the accused was instrumental in either counselling her to leave or helping her in leaving. The prosecution has to prove that accused had played some active part in taking the girl from keeping of her lawful guardian's house and S.C. No. 11/10 Page 12/26 13 taking shelter in his house. The word "take" implies want of wish and absence of desire of the person taken. In order to constitute taking, it is necessary to make out that active part in going away was that of accused and not that of the girl. Factum, which would be and should be taken into consideration in deciding whether there has been taking in particular case, are conduct of the parties, particularly of the accused at the time and before their going away together, the maturity of the girl and her intellectual capacity to think for herself and to make up her mind and circumstances under which and the object for which she felt it necessary or worthwhile to leave her guardian's protection. 15 The word "keeping" is a word of wide importance and would cover a case, where a minor is merely in protection or care of guardian or depends upon him for his or her maintenance, support or sustenance whenever necessity arises. The tie cannot, therefore, be dissolved suddenly on the guardian being struck with some infirmity or disease. A classic example of this situation is available in the precedent of Bishweshwar Mishra (AIR 1949 Orissa 22) wherein prosecutrix was a married girl below 16 years of age, who was living with her husband. There was a quarrel between them on certain date and resultant of that quarrel, the girl left her husband's house on the morning of next date. She boarded a bus that morning with the idea of taking temporary shelter with her maternal uncle. On the way, she was taken by the accused to his house. During her stay, accused attempted to seduce her by making immoral overtures. However, she did not care. Her evidence was that when she left her husband's house, she left temporarily on account of anger and she did not intend S.C. No. 11/10 Page 13/26 14 to leave it for good. It was held that despite the fact that she voluntarily came out of her husband's house, she continued the fact that she voluntarily came out of her husband's house, she continued to be in keeping of her husband all along and that keeping has not been abandoned by her.
16 In order to prove kidnapping, prosecution is required to prove that accused had taken or enticed prosecutrix out of keeping of her lawful guardian. The object behind Section 361 of Indian Penal Code, which defines kidnapping, is to protect minor children from being seduced for improper purposes and to protect the rights and privileges of guardians having lawful charge or custody of their minor wards. What is necessary is either taking or enticement of the minor. Taking would include causing to go or getting into possession whereas enticement involves an idea of inducement, by igniting hopes or desire in the other. One does not entice other unless the latter attempted to do a thing which he or she would not otherwise have done. In order to bring home conviction for kidnapping, there must be proof of the accused having done something which led to the girl going out of the keeping of her guardian. The words "takes" and "entices" as used in Section 361 of Indian Penal Code need to be read together so as to take colour and content from each other.
17 In the instant case, material witness is PW 10 Pooja, the prosecutrix herself, who has unfolded that she was residing alongwith her brother and sister in law ( bhabi ). She knew accused Anwar who was working in Shahdara. On 30.07.2009 accused Mohd. Anwar took her on the pretext of roaming around from her house. She was 1516 S.C. No. 11/10 Page 14/26 15 years old at that time. Accused took her to Old Delhi Railway Station and from there he took her to Allahabad by a train on the pretext of roaming. He threatened her that in case she will not accompany him then he will do something to himself and will implicate her family members in a false case and under that threat he took her to Allahabad without her consent. She asked him to take her back to Delhi but he forced her to marry him. He got married with her on 02.10.2009 at Allahabad without her consent. Initially the accused kept her at the house of his friend at Allahabad and after getting married he took her to his house at Allahabad. His mother abused her. She repeatedly asked the accused to take her back, but he declined. Even before his mother, she requested him to take her back, but his mother told that he will not take her back. She made a telephone call to her brother in law (jija) and took the telephone number of his brother from him and thereafter she rang up her brother. During the period of 10 days of her stay with the accused, accused committed sexual intercourse with her repeatedly without her consent. When she told the accused that she will commit suicide, he became agreeable to take her back and accordingly, she informed her family members. Accused brought her to Old Delhi Railway Station and police apprehended them. Recovery memo Ex. PW2/D was prepared and she was taken to GTB hospital for her medical examination. At that time, she did not give her consent for medical examination. But later on, she consented for her medical examination and she was medically examined vide MLC Ex. PW6/A. Her bony Xray was also got conducted by the concerned doctor. She also made statement Ex. PW2/E before the ld. S.C. No. 11/10 Page 15/26
16 M.M. she went on stating that even now accused is giving threats to his brother that he will not spare him.
18 In cross examination, she deposed that accused was known to her two years prior to the incident. On 30.7.2009, she was called by the accused to meet him outside the street of her house. Friend of the accused was standing in the gali with his motor cycle. Accused was also present over there. She sat on the motor cycle which was driven by the friend of the accused. Accused also sat on the same motor cycle. Thereafter friend of the accused left them at Old Delhi Railway Station. Thereafter, they board a train. She did not make any complaint against the accused to the passengers who were present in the compartment or at Allahabad railway station. At Allahabad, she met many friends of the accused and stayed at the house of one of the friend of the accused. She admitted that nikah took place and admitted her thumb impression and signatures at point A, B, C and D on nikahnama Ex.PW10/DA. According to her, at the time of nikahnama, one advocate and two three friends of the accused were present. She did not make any complaint to the Maulvi who performed the nikah by stating that accused had threatened to commit suicide and therefore, she did not make any complaint. After the nikah, accused brought her to his house where his mother and elder brother were residing. At the house of accused she was compelled to live as husband and wife. She stayed at the house of accused for 34 days. House was situated in a residential area and was surrounded by other houses but she did not make any complaint to anybody. Accused had started working with his brother in law and used to leave for his place of work at 8 or 8.30 a.m S.C. No. 11/10 Page 16/26 17 and used to return back by 7.00, 8.00 or 9.00 p.m. She admitted that she was shown in photographs Mark E, F and G and stated that these photographs were taken at the house of accused at Allahabad. She was also shown one pair of salwar suit and stated that this suit was got stitched by the accused at Allahabad. She denied the suggestion that she was not taken forcibly by the accused.
19 Testimony of the prosecutrix that she was forcibly taken by the accused from one place to another and thereafter he committed sexual intercourse with her forcibly, does not inspire confidence, keeping in view the fact that the accused was known to her for the last two years prior to the incident. even on the date of incident when she had gone with the accused in the dead hours of night, her sister and brother in law were sleeping. Even if, her version is believed that accused had called her it was she who had come out of her house and then went alongwith the accused and his friend on the motor cycle of his friend. It can hardly be believed that for the purpose of roaming, she would accompany the accused to Allahabad under force. Her conduct itself belies the plea of force in as much as there was ample opportunity for her to have raised hue and cry or to make complaint against the accused in as much as from Delhi she went to Allahabad in a train. Admittedly she did not make any complaint to anyone in the compartment nor at the railway station. Similarly when her nikah was performed at that time, Maulvi and 23 friends of the accused were present but she did not make any comlaint to the Maulvi. Thereafter as per her version she was taken to the house of the accused. Her testimony itself reflects that the accused was pursuing his normal S.C. No. 11/10 Page 17/26 18 routine in as much he used to leave the house at 8.00 or 8.30 a.m and would return in the evening at about 7/8/9 pm. His mother was in the house but she also used to go out of the house. There were neighbours but no attempt was made to inform any of the neighbours. Therefore, the entire conduct of the prosecutrix belies her version that she was forced by the accused to accompany him.
20 This is also evident from the fact that after she was brought to Delhi and was taken for her medical examination at that time, her MLC bearing No.4734 was prepared and the history given by her to the doctor is as under:
"History given by patient herself that on 30.9.09 night at 12 p.m. she left her home with her boyfriend as a trip to Allahabad where she got married after 2 days with that boy in pressure otherwise he will not allow her to go home back. She was living with him for last 7 days. Both of them made physical relations to each other. He does not allow her to go home back. Then she called her relatives on phone. They went to Allahabad and brought her back to home."
At that time, she refused to undergo her external or internal examination. On the same day again, she was again produced before Dr. Sarika Gupta who prepared her MLCEx.PW4/A. At that time also, she gave a detailed history to the doctor which is to the following effect:
"Patient gives history herself on 30.09.2009 at 12.00 p.m. by Anwar she went with him with her consent to see Old Delhi but he took her to Allahabad where she got married to him with consent as she wanted to come back to Delhi after getting married. She made physical relationship with her boyfriend. S.C. No. 11/10 Page 18/26
19 According to her they both made mistake in making physical relationship. It was not under pressure The only complaint of the complainant is that the boy did not allow her to go out of house and to come back to Delhi. Then she called his relatives on phone and they went to Allahabad and brought her back to home. According to her, she is 15 years old."
21.A perusal of this history goes to show that the only complaint of the prosecutrix was that she was not allowed to go out of the house but her going with the accused to Allahabad and getting him married was with her consent. As such, the entire conduct of the prosecutrix belies her version regarding forcibly taking by the accused.
1. In Shyam and Another versus State of Maharashtra, 1995 Criminal Law Journal 3974, the prosecutrix had put blame on the appellants and had deposed that she was threatened right from the beginning while being kidnapped and was kept till police recovered her. It was found by the Hon'ble Supreme Court that she was not truthful as regards the manner of the socalled taking. The prosecutrix in that case was a grown up girl, though she had not touched 18 years of age but was still in the age of discretion. She was found going on the bicycle of the appellant. The Hon'ble Supreme Court noted that it was notunknown to her with whom she was going and therefore, it was expected of her then to jump down from the bicycle or put up the struggle and in any case raise an alarm to protect herself. As no such steps were taken by her, the Hon'ble Supreme Court felt that she was a willing party to go with the appellants of her own and, therefore, there was no taking out of the guardianship. The appellants were acquitted S.C. No. 11/10 Page 19/26 20 of the charge under Section 366 IPC.
23. In State of Karnataka vs. Sureshbabu, 1994 Cr.L.J. 1216 (1), it was found that the girl went with the accused voluntarily. It was held by the Hon'ble Supreme Court that the requirement of Section 366 of IPC is that taking or enticing away a minor out of the keeping of the lawful guardianship was an essential ingredient of the offence of kidnapping. It was held that in such a case, it is difficult to held that the accused had taken her away from the keeping of her lawful guardian and something more has to be shown in a case of this nature, like inducement.
24. In Mahavir vs. State, 55 (1994) DLT 428, the appellant and the prosecutrix were known to each other. The appellant took the prosecutrix to a place outside Delhi where they stayed for about fifteen days and had sexual intercourse with each other. The appellant was convicted under sections 366 and 376 of IPC. A learned Single Judge of Hon'ble High Court noticed that she had gone to Railway Station, had stood there with the appellant who also went to purchase tickets and then she had travelled with him in a compartment shared by other persons. She had then gone to a house in a tonga and yet she did not lodge any protest and made no attempt to flee despite having ample time and opportunity. The learned Single Judge noted that on the day of reckoning, she surely had crossed mark of sixteen years and since she was all along a willing party, the appellant was acquitted of both the charges against him. Thus, despite the prosecutrix being less than eighteen years of age, the appellant was acquitted not only of charge under section 376 IPC, but also of the charge under section 366 of S.C. No. 11/10 Page 20/26 21 IPC.
25. In Piara Singh vs. State of Punjab, 1998 (3) Crimes 570, Hon'ble High Court found that the prosecutrix was more than sixteen years of age at the time of this incident, though the case of prosecution was that she was fourteen years old at that time. Since Hon'ble High Court came to the conclusion that no force was used in having sexual intercourse with him, the appellant was acquitted not only of charge under section 376 but also of charge under section 366 and 366A of Indian Penal Code. In this case also, the prosecutrix was not found to be more than eighteen years of age.
26 In Bala Saheb vs. State of Maharasthra, 1994 Criminal Law General 3044, it was found that the prosecutrix accompanied the appellant/accused from her village and stayed with him for two to three days. It was held that these circumstances clearly show that offence under section 363 or 366 of IPC was not made out.
27. In Chida Ram vs. State, 1992 Criminal Law General 4073, the prosecutrix went to the PS and lodged report that she had gone with the petitioner/accused of her own accord. However, during trial, she deposed that she was forced by the accused/petitioner to got to the police station. She had also given statement before a Magistrate after lodging report with the police and in that statement she did not say that she was forced by the accused/petitioner to go to the Police Post and lodged the report. It was observed that she had ample opportunity to say before the Magistrate, before whom she was produced at the first instance, that she was forced by the accused to go to the Police Station and lodged report. The story set up by her during trial was S.C. No. 11/10 Page 21/26 22 considered to be an afterthought and was not believed. It was found that she was a consenting party in eloping from her house with the accused/petitioner. It was held that it could not also be called a case of kidnapping.
28 In Ramvir vs. State, Criminal Appeal No. 460/1999, a report was lodged by father of prosecutrix regarding missing of his daughter, aged about 13 years, and the complainant raised suspicion upon the accused. When prosecutrix appeared in the witness box, she deposed that accused had taken her on the pretext that her father had met with an accident. Later on, accused told her that he had not sustained serious injuries and she should accompany him to market for purchasing some articles. Noticing the contradictions in the statements made by the appellant, she asked him to tell what exactly the matter was. When the appellant said that she would tell truth later on, she refused to accompany him. It was alleged that she was threatened by the accused to be killed and as such she accompanied him and thereafter went from one place to another. It was observed by Hon'ble High Court that her entire conduct reflected that she had gone with accused of her own will. Had she not willingly accompanied the accused, there was ample opportunity for her to raise alarm and to inform public persons, but that was not done as such it was difficult to prove that she was forcibly taken by the accused. As such appellant was acquitted of the charge under section 363/366 IPC. 29 In view of the discussions made above, the conduct of the prosecutrix in not raising alarm or to make a complaint to anybody or to run away and to remain with the accused reflects that it cannot be S.C. No. 11/10 Page 22/26 23 said that she was taken or induced by the accused to accompany him.
30. In this scenario, age of the prosecutrix assumes great significance. Smt. Jyoti who went to lodge the missing report of her sister with the police gave her age as 14 years, nine months and 24 days. When the prosecutrix was produced before the doctor at that time her age was given as 15 years. Prosecutrix herself gave her age as 16 years. When she appeared in the witness box on 12.8.2010 she deposed that at the relevant time, she was 1516 years of age. Prosecution examined PW12 Smt. Manju Rajput, Principal, Nagar Nigam Balika Vidyalya, East Vinod Nagar, Delhi who deposed that as per school record, date of birth of the prosecutrix is 07.1.1995. She took admission in the school on 24.4.2001 in class 1st and left the school on 20.7.2007.She proved school leaving certificate as PW12/B. According to her, date of birth of the prosecutrix was mentioned on the basis of affidavit submitted by her father Tilak Raj and the photo copy of the affidavit is Ex.PW12/D. In cross examination, she admitted that Tilak Raj had not produced the birth certificate issued by the MCD. Even this affidavit was not produced by Tilak Raj in her presence. PW14 ASI Satya Parkash in his cross examination admitted that the complainant did not produce any birth certificate issued by MCD or other agency. He himself did not go to the office of subregistrar to check the authenticity of the date of birth of the prosecutrix. When prosecutrix was produced before ld. M.M. at that time, she gave her age as 15 years. Under the circumstances, in order to prove the age of the prosecutrix, basic reliance of the prosecution is upon the school certificate produced by Smt. Manju Rajput, Principal of the School. S.C. No. 11/10 Page 23/26
24 However, this witness has admitted that date of birth of the prosecutrix was mentioned on the basis of affidavit submitted by his father Tilak Raj. Tilak Raj has not been examined by the prosecution in order to prove as to on what basis, date of birth was mentioned by him in his affidavit for getting the prosecutrix admitted in the school. Admittedly, no birth certificate issued by MCD was either filed by Tilak Raj at the time of getting her admitted in the school and even the investigating officer of the case has not tried to verify the same from the record of the sub registrar. That being so, authenticity of the date of birth as mentioned in the school record is not proved beyond reasonable doubt.
31. Moreover, it is admitted case of the parties that nikahnama was executed and at that time, an affidavit was furnished by the prosecutrix. She has admitted her thumb impression and signatures on the same. A perusal of the certificate goes to show that prosecutrix gave her age as 19 years at that time. Moreover, ossification test of the prosecutrix was got admitted and as per report Ex.PW16/D the age of the prosecutrix was between 17 to 18 years.
32. 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 plus or minus three years. In AIR 1970 P&H 450, Raunki Saroop v. State, it was observed that test of age on the basis of fusion is a scientific test. In that case, radiologist, after examining elbow joints, wrist joints, shoulder joints and knee joints, has opined that prosecutrix was over 15 years, but less than 16 years. It was observed that margin of error in the radiologist's examination S.C. No. 11/10 Page 24/26 25 was of two years on either side. It was also observed that if there is conflicting evidence as to age, benefit of uncertainty as to age of the girl should be given to accused. Reference may also be made to Jaya Mala V. Home Secretary, Govt. of J&K, AIR 1982 SC 1296, wherein their lordships of hon'ble Supreme Court had opined that there can be two years margin either way in radiological examination. The relevant portion of the judgement is reproduced :
"........It is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side......"
33. Under the circumstances, two versions regarding age of the prosecutrix are forthcoming. As per school record, her date of birth is 07.1.1995 and therefore, on 30.9.09 she was aged about 14 years 8 months and 24 days. However, as per ossification test, she has been opined to be between 1718 years and in view of the authoritative pronouncement referred above, margin of two years on either side has to be given.
34. In Harendera Narain Singh V. State of Bihar, AIR 1991 S.C. 1842, their lordships of the Supreme Court had reiterated the well known principle of the criminal jurisprudence law that :
"......The basis rule of criminal jurisprudence is that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the latter view favourable to the accused....."
35. In view of this legal proposition, coupled with the fact that the entire discussion goes to show that prosecutrix was a consenting party in accompanying the accused and then to have physical relation with her, S.C. No. 11/10 Page 25/26 26 therefore, it cannot be said that she was taken by the accused with an intent that she would be forced to illicit intercourse or that the accused had sexual intercourse without her consent or will. Therefore, the offences under section 363,366 and 376 IPC are not proved.
36 Nutshell of the aforesaid discussion is that the prosecution has not been able to prove the guilt of the accused to the hilt. As such, he is acquitted of the charges for the offence u/S 363/366/376 IPC. However, in view of amendment of section 437A, he is directed to furnish personal bond in the sum of Rs.7,000/ with one surety of the like amount for the period of six months. File be consigned to record room.
Announced in the Open Court (Sunita Gupta)
th
On this 7 day of May, 2011. Distt Judge & Addl. Sessions Judge/IC (NorthEast) Karkardooma Courts, Delhi.
S.C. No. 11/10 Page 26/26