Delhi District Court
Sc No: 58166/16 State vs . Zuber on 30 August, 2016
SC No: 58166/16 State Vs. Zuber
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 58166/16
FIR No. 230/12
Police Station Adarsh Nagar
Under Section 363/366/376 IPC.
ID No. 02404RO-89532013
State
Versus
Mohd. Zuber
S/o. Kismat Ali
R/o Village Hasanpur, PS Saudulla Nagar,
Distt. Balrampur, Gonda, UP.
......Accused
Date of institution 15.04.2013
Judgment reserved on 04.08.2016
Judgment Pronounced on 30.08.2016
Decision Acquitted
Judgment 1 of 23
SC No: 58166/16 State Vs. Zuber
JUDGMENT
1. Accused Mohd. Zuber is facing trial in the present case on allegations of kidnapping prosecutrix 'M' aged around 16 years and committing rape upon her.
2. FIR in question was registered on the basis of complaint dated 17.09.2012 lodged by grand-father of prosecutrix alleging that his granddaughter prosecutrix was enticed by the accused Mohd. Zuber and she had gone along with accused on 27.07.2012. Her granddaughter was recovered on 13.09.2012 and on 14.09.2012 when he was bringing prosecutrix back to Delhi, prosecutrix again went missing from Azadpur Bust Stop. On 15.09.2012, complainant received a call from brother of accused that prosecutrix is with the accused. Upon this complainant lodged the complaint and prayed for a lawful action against the accused.
Judgment 2 of 23 SC No: 58166/16 State Vs. Zuber
3. Efforts were made to search prosecutrix through electronic and print media. Thereafter, prosecutrix was recovered on 23.12.2012 along with accused from village Hasanpur, District Balrampur, Gonda, UP. Medical examination of prosecutrix was got conducted. Accused was arrested on the basis of the statement given by the prosecutrix to the police.
4. Accused was charge-sheeted. Charge for the offence punishable under Section 363/366/376 IPC was framed against accused. Accused pleaded not guilty and claimed trial.
5. Prosecution examined 16 witnesses in all.
6. PW1 grand-father of prosecutrix deposed on the lines of his complaint. He proved his complaint made to the police on 17.09.2012 as Ex. PW1/A. He deposed that in the month of December 2012, he came to know that prosecutrix and accused had come to village Hasanpur as such he along with the police Judgment 3 of 23 SC No: 58166/16 State Vs. Zuber team went to village Hasanpur and recovered prosecutrix and accused from the railway station Mankapur vide recovery memo as Ex. PW1/B. He proved arrest of accused vide memo Ex. PW1/C.
7. PW2 Priyamvada, proved date of birth of prosecutrix as 12.11.96 as per her school record Ex. PW2/A & B.
8. PW3 prosecutrix deposed that she and accused started talking to each other being neighbors. Accused used to say that he used to love her and would marry her. Accused asked her to accompany him. She went to Kanpur with him, where they stayed for about three to four days. During this period accused developed physical relations with her. From there they went to Hyderabad where they stayed for about four months. There also accused used to make physical relations with her. From there they returned to village Mankapur. From there her maternal grandfather brought her to Delhi on 13.09.2012. Accused followed them to Delhi in the same train. When they got down at the Azadpur bus Judgment 4 of 23 SC No: 58166/16 State Vs. Zuber stand and her maternal grandfather had gone for toilet then accused met prosecutrix and he told her not to raise alarm and asked prosecutrix to run away with him. She accompanied accused and went to Hyderabad by train. At Hyderabad they stayed at the house of the sister of accused for about one to one and half months. She deposed that after her apprehension she gave a statement Ex. PW 3/A before Magistrate under fear as accused had threatened her that he would not spare her when he would be released by the police or otherwise his family members would also not spare prosecutrix. Prosecutrix deposed that accused used to develop physical relations with her every time stating that he would marry her.
9. PW4, grandmother of the prosecutrix deposed on the lines of the deposition of her husband (PW1).
10. PW5 Dr.Vishwanath medically examined prosecutrix & accused. He proved their MLCs as Ex. PW5/A & B. Judgment 5 of 23 SC No: 58166/16 State Vs. Zuber
11. PW6 Dr. Rahul Singh also deposed in respect of medical examination of accused as per MLC Ex.PW5/B.
12. PW7 HC Mange Ram proved the FIR as Ex. PW7/A, a certificate u/s 65B Indian Evidence Act as Ex. PW7/B and endorsement on rukka as Ex. PW7/C.
13. PW8 WCT. Rekha Kumari was member of police team which recovered the prosecutrix and accused. She got the prosecutrix medically examined and obtained her exhibits which handed over to the IO as per memo Ex. PW8/A.
14. PW9 HC Rakesh Kumar, MHC(M) proved the deposition of case property with the malkhana and to the FSL as per entries Ex. PW9/A to C. Judgment 6 of 23 SC No: 58166/16 State Vs. Zuber
15. PW10 Ct. Anil deposited case property with FSL.
16. PW11 SI Sashi Kumar, recorded the statement of complainant as Ex. PW1/A in respect of missing of her grand- daughter.
17. PW12 Ct. Pradeep Dahiya was also part of police team which recovered the prosecutrix and apprehended the accused. He got the accused medically examined from BJRM Hospital and obtained the exhibits of accused and handed over the same to the IO vide memo Ex. PW12/A. He proved the arrest of accused vide memo Ex. PW1/C, his personal search as Ex. PW12/B and disclosure statement Ex. PW12/C.
18. PW13 Manish Khurana, Ld. ASCJ, recorded the statement of prosecutrix u/s 164 Cr.P.C. as Ex. PW3/A. Judgment 7 of 23 SC No: 58166/16 State Vs. Zuber
19. PW14 SI Sunny Kumar also proved recovery and apprehension of accused.
20. PW15 Dr. R. Kappu deposed in respect of medical examination of prosecutrix as per MLC Ex. PW5/A.
21. PW16 Inspector Sushila Rana was the Investigating Officer of the case. She proved the arrest of accused and deposition of case property to the FSL. She also produced the FSL result Ex. F-1 on record.
22. On conclusion of prosecution evidence statement of accused u/s 313 Cr.P.C. was recorded wherein the accused stated that he has already married the prosecutrix who is his legally wedded wife. At the time of incident, he had helped the prosecutrix and had provided shelter to her as her uncle wanted to get rid of her to grab her property.
Judgment 8 of 23
SC No: 58166/16 State Vs. Zuber
23. Arguments have been addressed by learned
Additional PP as well as learned defence counsel.
24. Age of the prosecutrix: In order to prove age of the prosecutrix, prosecution has relied upon the school record of prosecutrix Ex. PW2/A & B as per which date of birth of prosecutrix is mentioned as 12.11.1996. However, PW1 grand- father of prosecutrix in his complaint Ex. PW1/A mentioned the date of birth of the prosecutrix as 13.04.1996.
25. Date of birth of prosecutrix is disputed by the defence by submitting that the school record of the prosecutrix cannot be taken as true indicative of her date of birth as PW2 produced the school record pertaining to her admission in the Class VIth.. It is submitted that no birth certificate issued by any competent Government Authority has been produced by prosecution to prove her genuine date of birth.
Judgment 9 of 23 SC No: 58166/16 State Vs. Zuber
26. Juvenile Justice (Care and Protection of Children) Act, 2015, under Section 94 has laid down certain guidelines to arrive at a finding about the age of a juvenile. It states that the age inquiry would conducted by the Court by Certificate of School in respect of date of birth of juvenile, obtaining matriculation or equivalent certificate or the next option being the birth certificate issued by the municipal authorities or corporation or panchayat be obtained. In absence of aforesaid documents, a Medical Board will be constituted to determine the age of a juvenile.
27. No document has been produced by the defense to controvert the date of birth of prosecutrix. In view of the mandate given under Juvenile Justice (Care and Protection of Children) Act, 2015, age of the juvenile(in present case, prosecutrix) as per her School record is taken to be true. School record of the prosecutrix shows that the record pertains to her admission in the 6th class wherein her date of birth is mentioned as 12.11.1996.
Judgment 10 of 23 SC No: 58166/16 State Vs. Zuber
Although, grand-father of prosecutrix mentioned a different date of birth but going by both the versions it can be concluded that the prosecutrix was between 16-17 years on the day she left the home.
28. Testimony of prosecutrix:- Prosecutrix was recovered on 23.12.2012 and thereafter her statement Ex. PW3/A was recorded u/s 164 Cr.P.C. English translation of her statement reads as under:-
"My grandfather was bringing me to Delhi from village in a train. At Ghaziabad station, I de-boarded the train. Before alighting, I did not tell anything to my grandfather. As I wanted to meet Zuber, I alighted at Ghaziabad and then went to Muradabad and then to Kanpur. In Kanpur, Zuber resides. I know Zuber for last 1-1 ½ years. We were talking on phone as well. I stayed with Zuber in Kanpur. We stayed together for 4 days in the room of Zuber which he had taken on rent. Then we both went to Hydrabad. In Hydrabad we stayed at the house of sister of accused for about 2-2½ months. Thereafter, we came to our village at Hasanpur, UP. There we stayed for about 15 days and thereafter police officials apprehended us from there and we brought to Delhi. Zuber did not entice me and I went with him with my own consent. We established physical relations as well. Our relations were consensual. Accused did not force me. I do not want any action against Zuber".
Judgment 11 of 23 SC No: 58166/16 State Vs. Zuber
29. Before court, prosecutrix deposed as under:-
" .....I knew Mohd. Zuber since 2011. He was living opposite to our house in village Hasnapur, Distt. Gonda, UP, where I was living with my father and grandmother. In September 2011 my father expired. After the expiry of my father, I came to Delhi with my maternal grand father to his house situated at Najafgarh, Delhi. I stayed there for about two to three months and then I again went back to my village with my maternal grand mother. After leaving me in the village, my maternal grandmother came back to Delhi. We i.e. I and Mohd. Zuber started talking to each other because we were neighbours. Mohd. Zuber used to say that he used to love me and he would marry me and he asked me to accompany him. I went to Kanpur with him, where we stayed for about three to four days. During this period he developed physical relations with me. From there we went to Hyderabad where we stayed for about four months. He did not marry me. There also he used to make physical relations with me. From there we returned to village Mankapur i.e. near my village Hasnapur, by train. At the railway station, we were apprehended by the police. My maternal grandfather also met me in the police station. We were released by the police there. From there my maternal grandfather brought me to Delhi on 13.09.12. Mohd. Zuber followed us to Delhi in the same train. When we got down at the Azadpur bus stand and my maternal grandfather had gone for toilet then Mohd. Zuber met me there and told me not to raise alarm and asked me to run away with him as it was a good opportunity. I accompanied Mohd. Zuber and went to Hyderabad by train. We stayed at the house of the sister of Mohd. Zuber namely Rihana for about one to one and half Judgment 12 of 23 SC No: 58166/16 State Vs. Zuber months. From there we returned to our native village Hasnapur and he told that he would marry me in the village. I stayed with him in his house in village Hasnapur. We were going to Kanpur and when we reached at railway station Mankapur, police apprehended both of us. We were brought by the police to Delhi. I was got medically examined by the police at the hospital. My statement was also recorded before the Magistrate at Rohini Courts. I was under fear and was disturbed and that is why I gave statement favouring Mohd. Zuber. ......... I was under fear at the time of making statement u/s. 164 Cr. P.C. as Mohd. Zuber had threatened me that he would not spare me when he would be released by the police or otherwise his family members would also not spare me. He used to develop physical relations with me every time stating that he would marry me.....".
30. During her cross-examination, prosecutrix deposed as under:-
"......It is correct that the house of Zuber is quite near to our house in the village. It is correct that our family members were on visiting terms of each other. I did not tell either to my mother or to my maternal grandfather about our relationship. It is correct that we used to talk with each other on telephone and otherwise. It is correct that we both had left the village voluntarily. It is correct that we used to make relations with each other with out consent. Vol. he used to promise me that he would marry me. It is correct that from Hyderabad we had returned to the village Hasnapur, in order to get married with each other.....".
Judgment 13 of 23 SC No: 58166/16 State Vs. Zuber
31. From the testimony of the prosecutrix it is evident that she stayed with the accused first at Kanpur then at Hydrabad and at Mankapur village for about 4-5 months and during her entire stay she made no efforts to return to her house. Let us find out what the prosecutrix has deposed about different aspects of her acquaintance with accused.
a) About her relationship with accused:
... I knew Mohd. Zuber since 2011. He was living opposite to our house in village Hasnapur, Distt. Gonda, UP, where I was living with my father and grandmother.
..... It is correct that the house of Zuber is quite near to our house in the village. It is correct that our family members were on visiting terms of each other. I did not tell either to my mother or to my maternal grandfather about our relationship. It is correct that we used to talk with each other on telephone and otherwise. (in her cross-examination) Judgment 14 of 23 SC No: 58166/16 State Vs. Zuber
b) About her going with the accused:
My grandfather was bringing me to Delhi from village in a train. At Ghaziabad station, I de-boarded the train. Before alighting, I did not tell anything to my grandfather. As I wanted to meet Zuber, I alighted at Ghaziabad and then went to Muradabad and then to Kanpur. (164 Cr.P.C) Mohd. Zuber used to say that he used to love me and he would marry me and he asked me to accompany him. I went to Kanpur with him, where we stayed for about three to four days. During this period he developed physical relations with me. From there we went to Hyderabad where we stayed for about four months.
... From there my maternal grandfather brought me to Delhi on 13.09.12. Mohd. Zuber followed us to Delhi in the same train. When we got down at the Azadpur bus stand and my maternal grandfather had gone for toilet then Mohd. Zuber met me there and told me not to raise alarm and asked me to run away with him as it was a good opportunity. I accompanied Mohd. Zuber and went to Hyderabad by train. We stayed at the house of the sister of Mohd. Zuber namely Rihana for about one to one and half months.
...It is correct that we both had left the village voluntarily (in her cross-examination) Judgment 15 of 23 SC No: 58166/16 State Vs. Zuber
c) About the house where prosecutrix stayed:
We stayed together for 4 days in the room of Zuber which he had taken on rent. Then we both went to Hyderabad. In Hyderabad we stayed at the house of sister of accused for about 2-2½ months. Thereafter we came to our village at Hasanpur, UP.(164 Cr.P.C) From there we went to Hyderabad where we stayed for about four months.
We stayed at the house of the sister of Mohd. Zuber namely Rihana for about one to one and half months.
d) About Sexual Assault:
Zuber did not entice me and I went with him with my own consent. We established physical relations as well. Our relations were consensual. Accused did not force me. I do not want any action against Zuber (u/s 164 Cr.P.C.).
I went to Kanpur with him, where we stayed for about three to four days. During this period he developed physical relations with me. From there we went to Hyderabad where we stayed for about four months. He did not marry me. There also he used to make physical relations with me.
He used to develop physical relations with me every time stating that he would marry me (examination in chief).
Judgment 16 of 23 SC No: 58166/16 State Vs. Zuber
It is correct that we used to make relations with each other with out consent. Vol. he used to promise me that he would marry me. It is correct that from Hyderabad we had returned to the village Hasnapur, in order to get married with each other (cross-examination).
32. It is evident from the testimony of prosecutrix that she was well acquainted with the accused at the time she left her house. In her statement Ex PW3/A and during her cross- examination prosecutrix admits that she voluntarily left her home.
33. Even going by her deposition, prosecutrix deposed that accused met her at Azadpur Bus stop at the time when her maternal grandfather had gone for toilet and asked her to run away with him as it was good opportunity, it is evident that at that time prosecutrix neither resisted the act of the accused nor she made any effort to tell the accused that she does not want to go with him. Conduct of prosecutrix shows that she was willing to accompany the accused.
Judgment 17 of 23 SC No: 58166/16 State Vs. Zuber
34. It is not the case where the accused had confined the prosecutrix or kept her under any lock & key for 4-5 months. Prosecutrix categorically deposed that she stayed with the accused earlier for the period of four months then again for 1 ½ months at the house of the sister of accused. During this entire period prosecutrix made no effort to leave the company of accused. In her statement Ex. PW3/A, prosecutrix categorically deposed that she went with the accused voluntarily and had consensually established physical relations with the accused.
35. Although in her testimony prosecutrix deposed that under fear she gave her statement Ex. PW3/A in favor of accused however, no explanation has been forthcoming in the testimony of the prosecutrix that what kind of fear the accused exerted on her. Prosecutrix did not narrate any kind of threat so to gauge the impact of fear on the prosecutrix. Merely making a bald allegation that she was under fear, does not suffice for convicting Judgment 18 of 23 SC No: 58166/16 State Vs. Zuber the accused as she remained in his association for a very long time w.e.f. 13.09.2012 till 23.12.2012 and earlier as well. There is no reason that why she could not have made a complaint to the family, police, friends, relatives others with whom she came in contact with. The fact that she chose to remain silent, only shows that she was in the company of the accused with her consent.
36. Hon'ble High Court of Delhi has been pleased to render an authoritative pronouncement on 14.08.2015 in Criminal Appeal No. 325/2013 titled as Vijay Kumar Vs. State of NCT of Delhi wherein a girl aged about 15 years of age had gone along with the accused to Bhatinda Punjab and remained there for 89 days where physical relations between them were established on several occasions. In the said case the Ld. Trial Judge had convicted the boy for offence punishable U/S 363/366/376 IPC, however in the appeal filed in the matter the Hon'ble High Court duly considered the conduct of the girl and came to the conclusion that the girl was of the age of discretion, she had gone along with Judgment 19 of 23 SC No: 58166/16 State Vs. Zuber the accused without any kind of protest, she had not raised alarm at any point of time at any place despite there being an opportunity for the same. As far as the medical evidence in the said case is concerned the Hon'ble High Court duly considered the medical evidence of prosecutrix showing her hymen to be found torn and the allegations that the boy had established physical relations with her in Bhatinda and found the same to be consensual.
37. Hon'ble High Court placed reliance upon the law laid down in Shyam and Anr Vs. State of Maharashtra AIR 1995 SC 2169 to hold that the girl was of the age of discretion. The paragraphs of the aforesaid judgment relevant for the facts of the present case are reproduced as under:
" xxx In her statement in Court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the so called "taking", it does not seem that the prosecutrix Judgment 20 of 23 SC No: 58166/16 State Vs. Zuber was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts would be under check by both the appellants/accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by "taking" her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but, still, she was in the age of discretion, sensible and aware of the intention of the accused Shyam. That he was taking her away for a purpose. It was not unknown to her with whom, she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam the appellant on her own and in that sense there was no "taking" out of the guardianship of her mother. The culpability of neither Shyam, A1 nor that of Suresh, A2, in these circumstances, appears to us established. The charge against the appellants/accused under Section 366 I.P.C would thus fail. Accordingly, the appellants deserve acquittal. The appeal is, therefore, allowed acquitting the appellants. Xxx"
Judgment 21 of 23 SC No: 58166/16 State Vs. Zuber
38. If the ratio of the aforesaid judgment is applied to the facts and circumstances of the present case then it would be apparent that the prosecutrix had reached age of discretion (being between 16-17 years old when she left home) and had willfully gone with accused. At the time of her medical examination no physical trauma was noted on her by the Doctor. From all her statements it is evident that she did not make any complaint against the accused during her entire stay period with accused.
Therefore, the ratio of the aforesaid judgment applies to present case as well. Hon'ble High Court of Delhi in the aforesaid case has been pleased to set aside the conviction of the accused. On the basis of the aforesaid ratio laid down in the case, the accused is cannot be held guilty for establishing physical relations with the prosecutrix.
Judgment 22 of 23 SC No: 58166/16 State Vs. Zuber
39. Conclusion: From the aforesaid discussions, it is evident that the prosecution has failed to prove charges against the accused. Accordingly, accused stands acquitted. Bail bond of the accused stands canceled. His surety stands discharged. Accused is directed to furnish a personal bond in sum of Rs. 10,000/- each under provisions of Section 437-A Cr.P.C with surety in the like amount.
File be consigned to record room.
Announced in the open court on 30th day of August 2016.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
Judgment 23 of 23