Delhi District Court
State vs . Dilawar on 21 January, 2014
State Vs. Dilawar
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 08 of 2013
ID No. 02401R0004792013
FIR No. : 211/12
Police Station : Nabi Karim
Under Section : 363/366/376 IPC
State
Versus
DILAWAR
S/o Mohd. Bashir
R/o Village Ramaipur Newada,
PS. Patti Kotwali,
District Pratapgarh, U. P.
.............Accused
Date of Institution : 03.01.2013
Date of committal of case : 16.01.2013
Date of Judgment reserved on : 10.01.2014
Date of judgment : 21.01.2014
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the State
Sh. Chaman Lal, Advocate, counsel for accused
SC No. 08/13 Page 1 of 14
State Vs. Dilawar
J U D G M E N T :-
1. Briefly stated facts of prosecution case are that on October 3, 2012, complainant (since she is the mother of a rape victim, in order to withhold the identity of victim, her identity is also withheld and hereinafter she is referred to as complainant) came to the police station Nabi Karim and got recorded her statement alleging that her daughter aged about 15/16 years was working in a purse factory of accused Dilawar. About two months ago, her daughter went to the factory but she did not come back and since then she was missing. It was alleged that though she made efforts to trace her daughter but no clue was found. She raised suspicion over accused Dilawar as she had seen the accused to talk with her daughter in late night. On her statement, an FIR for the offence punishable under Section 363 IPC was registered against accused Dilawar.
(i) On October 8, 2012, victim was rescued from Village Ramaipur, Newada i.e. native village of accused. At that time, victim alleged that accused had married with her after inducing her and she had disclosed her age as 19 years at the time of marriage at the instance of accused. She further alleged that accused had maintained physical relations with her against her willingness. Accordingly, accused was arrested.
(ii) During medical examination, victim refused to undergo for her internal medical examination. Since, victim refused to go with her mother, she was got sent to Nari Niketen. During investigation, Ossification Test on the victim was got conducted and it was revealed that victim was above 17 years old but less then 19 years.SC No. 08/13 Page 2 of 14
2. After completing investigation, challan was filed against the accused before the concerned Metropolitan Magistrate for the offence punishable under Section 363/366/376 IPC.
3. After complying with the provisions of Section 207 Code of Criminal Procedure, case was committed to the Court of Sessions on January 10, 2013. Thereafter, case was assigned to this Court on January 16, 2013. Accordingly, case was registered as Sessions Case No. 08/13.
4. Vide order dated February 8, 2013, a charge for the offence punishable under Section 363/366/376 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. In order to bring home the guilt of accused, prosecution has examined as many as following 10 witnesses:-
PW1 HC Ram Kesh, duty officer, proved the FIR
PW2 Const. Chanderkala, member of the investigating
team
PW3 Const. Devender, formal witness, deposited the
exhibits with FSL, Rohini
PW4 Dr. Neelima, proved the MLC of victim
PW5 Dr. Vijay Kumar, proved the MLC of accused
PW6 Smt. Farzana Saeed, Principal of M.C. Primary
school, proved the admission documents of the victim PW7 victim herself PW8 Insp. Kamla Devi, formal witness PW9 Insp. R. P. Minz, second investigating officer PW10 SI Rajpal Singh, investigating officer SC No. 08/13 Page 3 of 14 State Vs. Dilawar
(i) Since, prosecution failed to conclude the evidence despite repeated opportunities given, vide order dated January 3, 2014, prosecution evidence was closed.
6. Accused was examined under Section 313 Cr.P.C wherein he denied all incriminating evidence led by the prosecution and submitted that he and victim were in love affair and victim disclosed her age above 18 years. It was further submitted that after marriage, he maintained physical relations with the victim being his wife. He further submitted that his wife is in Nari Niketen as they refused to hand over her custody despite the fact that she expressed her intention to live with him. However, he refused to lead evidence in his defence.
7. Learned counsel appearing for the accused sagaciously contended that though prosecution case is based on the sole testimony of PW7 i.e. victim, yet she did not support the prosecution case in any manner by deposing that she had disclosed her age as 18 years at the time of marriage and accused did not induce her in any manner and she accompanied the accused on her own volition and she maintained physical relations with the accused voluntarily and accused did not induce her in any manner. It was further submitted that no reliance can be placed on the school record wherein her date of birth is mentioned as April 20, 1998 as during ossification test, but it is certified that she was above 17 years but below 19 years and report of Ossification Test is fully corroborated by PW7.
8. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing that since as per school record, date of birth of victim is April 20, 1998, there is no reason to disbelieve the same. It was further submitted that since she was below 15 years of age at the time of SC No. 08/13 Page 4 of 14 State Vs. Dilawar marriage, thus the sexual act of accused falls within the definition of rape as defined under Section 375 pre-amended.
9. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
10. First pivotal question emerges for adjudication is what was the approximate age of victim at the time of commission of offence?
11. To prove the age of victim, prosecution has relied upon the statement of PW6 Smt. Farzana Saeed, Principal of primary school, Lahori Gate. She deposed that victim was got admitted in the school on April 21, 2003 and as per school record, her date of birth is April 20, 1998 and she was admitted in 1st standard. In her cross-examination, she clarified that no birth certificate was produced at the time of getting admitted the victim in the school. It means that the parents of the victim had not furnished any supporting document to their claim that the victim was born on April 20, 1998. It is admitted case of the prosecution that mother of victim is an illiterate lady as she put her thumb impression on her complaint.
12. Perusal of the admission document Ex. PW6/A and PW6/B reveals that at the time of admission, father of victim had furnished a declaration on a printed performa that the date of birth of victim is April 20, 1998. In support of the said declaration he had not furnished any document.
13. During her statement recorded under Section 164 Cr.P.C, victim disclosed her age as 17 years. In her statement, she did not support SC No. 08/13 Page 5 of 14 State Vs. Dilawar the prosecution case. Rather she made allegations against her mother by stating that her mother was not happy when she took a decision to marry with the accused. Consequently, she eloped with the accused on 6 th of August and married with the accused. Since victim did not support the prosecution case in her statement under Section 164 Cr.P.C that her date of birth is April 20, 1998, investigating officer preferred to get conduct Ossification test to ascertain the approximate age of victim. On examination, doctors opined that the age of victim was above 17 years but less than 19 years, thus Ossification Test report corroborates the version of victim that she was above 18 years old when she made the statement under Section 164 Cr.P.C.
14. No doubt, under Rule 12 of Juvenile Justice (Care & Protection of Children) Rules 2007, it is stated that the findings in support of age of a child or the evidence specified in clause (a)(i), (ii), (iii) or in absence where of clause (b) shall be the conclusive proof of age of child or juvenile. The relevant portion of Rule 12 is reproduced as under:
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-
(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a SC No. 08/13 Page 6 of 14 State Vs. Dilawar duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(emphasis supplied)
15. Bare perusal of clause (b) to Rule 12 proves that the Medical Board will be constituted if there is no document about the age of child as mentioned in clause (a) (i), (ii) or (iii). Further perusal of the clause
(b) establishes that where any Medical Board is constituted and Court has taken into consideration any evidence, Court shall record a finding in respect of the age of child and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. There is nothing in clause (b) to sub Rule (3) that the Court shall give any preference to the documents mentioned in clause a (i), (ii) or (iii) even at the time of deciding the culpability of the accused even despite the fact that there is cogent evidence on record contrary to the said documents.
16. From the above, it becomes clear that the finding of the Court regarding the determination of age of child is conclusive and not the school record where the age of child is mentioned. Admittedly, in the instant case, no finding was given by any Court regarding the age of the victim.
SC No. 08/13 Page 7 of 14State Vs. Dilawar Moreover, in criminal trial accused has a right to disprove the prosecution case either by adducing evidence or by the evidence adduced by the prosecution. Accused cannot be deprived from this significant right.
17. In the instant case, victim in her deposition categorically deposed that her date of birth is March 23, 1995 and not April 20, 1998. The testimony of victim wherein she deposed that her date of birth is March 23, 1995 is fully corroborated by the Ossification Test report wherein her age is determined more than 17 years but less than 19 years. In the absence of any cogent contrary evidence on record, this Court has no reason to disbelieve either the deposition of victim or Ossification Test Report. Thus, this Court has no hesitation to hold that the victim was above 17 yeas at the time of commission of offence.
18. From the testimony of PW7 it becomes abundantly clear that she was in love with the accused, consequently she decided to marry with the accused and accordingly they married on August 14, 2012. She categorically deposed that she maintained physical relations with the accused only after marriage and not prior to that. She further categorically deposed that she herself disclosed her age as 18 years before the Qazi at the time of solemnizing her marriage. Though she was cross-examined at length by learned Additional Public Prosecutor but nothing could be extracted during her cross-examination which may help the prosecution to prove its case. Rather, she clarified in her cross-examination that accused did not make any attempt to make physical relations with her forcibly. She further categorically deposed that she herself disclosed her age before the Qazi as 19 years and accused did not ask him to disclose her age above 18 years before the Qazi. Thus, from her testimony it becomes abundantly clear that she herself disclosed her age above 18 years before Qazi at the SC No. 08/13 Page 8 of 14 State Vs. Dilawar time of solemnization of marriage and accused maintained physical relations with her only after the marriage.
19. Since, marriage was solemnized on August 14, 2012, thus victim was much above the age of 16 years at the time when accused made physical relations with her. Since, it becomes clear that victim had made physical relations with the accused of her own volition without any inducement from accused, thus the act of accused does not fall within the definition of rape as defined under Section 375 IPC (Pre-amended). Moreover, since they maintained physical relations after marriage, their act otherwise falls within the Exception 2 to Section 375 IPC.
20. Now coming to the second contention raised by the learned Additional Public Prosecutor that since victim was below 18 years, accused is liable for the offence punishable under Section 363/366 IPC.
21. In order to prove the guilt of accused for the offence punishable under Section 363 IPC, prosecution is duty bound to fulfil the requirements of kidnapping as defined under section 361 IPC and same runs as under:-
"Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
(emphasis supplied) Taking or enticing away a minor out of keeping of lawful guardian is an essential ingredient of the offence of kidnapping.
SC No. 08/13 Page 9 of 1422. In case S.Varadarajan v. State of Madras AIR 1965 SC 942, it was held:-
Para7 : ".....It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to "taking" out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Natarajan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law "taking". There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub-Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompany him the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was of course implicit. In these circumstances we find SC No. 08/13 Page 10 of 14 State Vs. Dilawar nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him."
Para-9: "It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian."
"It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking".
(emphasis supplied)
23. In Case Parkash v. State of Haryana, AIR 2004, SC 277, it SC No. 08/13 Page 11 of 14 State Vs. Dilawar was held:-
Para 6...."The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor . . . . . . . . . . . . . . . . . . . . . . . . out of the keeping of the lawful guardian of such minor" in Section 361, are significant. The use of the word "Keeping" in the context connotes the idea of charge, protection, maintenance and control; further the guardian's charge and control appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial : it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuation by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the Section . Para 7: "In State of Haryana v. Raja Ram (1973 (1) SCC
544) English decisions were noticed by this Court for the purpose of illustrating the scope of the protection of minor children and of the sacred right of their parents and guardians to the possession of minor children under the English Law. The decisions noticed were Reg v. Job Timmins (169 English Reports 1260); Reg v. Handley and another, (175 English Reports 890) and Reg v. Robb (176 English Reports 466). In the first case Job Timmins was convicted of an indictment framed upon 9 Geo. IV, Clause 31, Section 20 for taking an unmarried girl under sixteen out of the possession of her father, and against his will. It was observed by Erle, C. J. that the statute was passed for the protection of parents and for preventing unmarried girls from being taken out of possession of their parents against their will. Limiting the judgment to the facts of that case it was said that no deception or forwardness on the part of the girl in such cases could prevent the person taking her away from being guilty of the offence in question. The SC No. 08/13 Page 12 of 14 State Vs. Dilawar second decision is authority for the view that in order to constitute an offence under 9 Geo. IV, Clause 31, Section 20 it is sufficient if by moral force a willingness on the part of the girl to go away with the prisoner is created; but if her going away with the prisoner is entirely voluntary, no offence is committed. The last case was of a conviction under the Statute (24 and 25 Vict. Clause 100, Section
55). There inducement by previous promise or persuasion was held sufficient to bring the case within the mischief of the State. In the English Statutes the expression used was "take out of the possession" and not "out of the keeping"
as used in Section 361, I. P. C. But that expression was construed in the English decisions not to require actual manual possession. It was enough if at the time of the taking the girl continued under the care, charge and control of the parent : See Reg v. Manketelow (6 Cox Criminal Cases 143). These decisions were held to confirm the view that Section 361 is designed also to protect the sacred right of the guardians with respect to their minor wards. Para8: "The position was again reiterated in Thakorlal D. Vadgama v. The State of Gujarat (AIR 1973 SC 2313) wherein it was, inter alia, observed as follows : "The expression used in Section 361, I.P.C. is "whoever takes or entices any minor". The word "takes" does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, "to cause to go," "to escort" or "to get into possession". No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word "entice"
seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words "takes" and "entices", as used in Section 361, I. P. C. are in our opinion, intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have SC No. 08/13 Page 13 of 14 State Vs. Dilawar committed the offence as defined in Section 361, I. P. C."
(emphasis supplied)
24. In the light of above settled proposition of law, deposition of victim shall be analysed to ascertain as to whether there is any evidence to fulfil the requirement of kidnapping or not?
25. From the testimony of victim, it becomes abundantly clear that she of her own volition accompanied the accused for the purpose of marriage. She categorically deposed that she was in love with the accused and she decided to marry with the accused. Accordingly, they married on August 14, 2012. She did not state that accused induced her in any manner either for marriage or to accompany him. Thus, there is no scintilla of evidence to show that accused had either enticed the victim or he had taken away the victim in any manner. Mere fact that accused permitted the victim to accompany him to his native village for the purpose of marriage as per her desire does not amount kidnapping as defined under Section 361 IPC. Thus, accused cannot be held liable either for the offence punishable under Section 363 IPC or 366 IPC.
26. From the on going discussion, I am of the considered opinion that prosecution has miserably failed to bring home the guilt of accused for the offence punishable under Section 363/366/376 IPC. Thus, I hereby acquit the accused Dilawar from all the charges.
Announced in the open Court on this 21st day of January, 2014 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI SC No. 08/13 Page 14 of 14