Delhi District Court
State vs . Firoz Ansari on 25 August, 2009
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE04 (NORTH) : DELHI
Case ID Number 0240IR0209362007
Session Case No. 76/08
Assigned to Sessions 7.3.2009
Arguments concluded on 25.08.2009
Date of Order 25.08.2009
FIR No. 314/08
Police Station Sadar Bazar
Under Section U/s 363/354/365/366 IPC
In the matter of:
State Vs. Firoz Ansari
S/o Abdul Kanjoom Ansari
R/o Village & PO Benibad,
District-Darbhanga, Bihar.
Also at:
R/o 11103, Gali Sarwari Wali,
Motia Khan, Sadar Bazar, Delhi.
: J U D G M E N T :
1. The above named accused was booked by SHO PS Sadar Bazar U/s 363/354/365/366 IPC with the allegations of having committed various offences like kidnapping of a minor girl, secretly and wrongfully confining of that girl and assaulting her intending to outrage her modesty etc.
2. FACTUAL MATRIX: On 26.12.2008 HC Gajender Singh of PS Pahar Ganj got recorded DD No.39B at PS Sadar Bazar and handed over the accused State Vs. Firoz Ansari Page No. 1 of pages 31 Firoz Ansari and statement of Ms. Rotani (the complainant) to ASI Rajbir Singh, wherein she stated that on 26.12.2008 at about 9.00 a.m. one boy namely Firoz Ansari came to their house and stated that he is also the resident of same gali and his employer was blessed with a son after a many years and he is celebrating and distributing suits, saris and money in the ceremony. He requested her to come alongwith her daughter Priya and he would get them the Inaam. They all three boarded the rikshaw and when at 9.30 a.m. they reached at Rajguru Road in Chuna Mandi near Hari Maszid, accused left her in the rikshaw and took her daughter alongwith him by saying that he was going to get her clothes. When by the 10.00 a.m., accused did not come, she started searching them. One shopkeeper of Chuna Mandi told her that near Khanna Cinema main Bazar Pahar Ganj crowd was gathered and one small girl was also there. She reached there and found her daughter present there. Accused was also present being apprehended by the crowd there. At the spot her Bhatija Vinod was also found present and she came to know that her bhatija himself had caught the accused by recognizing the girl. She was informed by her daughter that while taking her towards Kotwali Hospital accused changed many rikshaws and did State Vs. Firoz Ansari Page No. 2 of pages 31 obscene acts with her and offered her Rs.800/ for doing galat kaam with her. Her daughter further disclosed to her (complainant) that when she started weeping, accused took her back towards Chuna Mandi, where he was caught by Vinod. On the basis of her complaint, the police registered the FIR bearing no.314/08 u/Sec. 363/354 IPC. During the investigation IO recorded the statement of witnesses and got arrested the accused Firoz Ansari. Accused and victim were got medically examined by sending them to HRH Hospital. Statement of victim Priya was also got recorded u/Sec. 164 Cr.P.C. Further investigation of the case was entrusted to W/ASI Shakun Devi, who obtained the JC remand of accused. Then Section 365/366 IPC were also added in the case. Thereafter, on completion of the investigation the charge sheet U/s 363/365/354/366 IPC was filed before the court of Ld. Metropolitan Magistrate concerned. As the offence was exclusively triable by the court of sessions, so the case was committed to sessions and than by way of assignment the case was received in this court.
3. After hearing respective submissions of the both the sides and on finding sufficient prima facie material for farming of charge, a charge u/Sec.363/365/366/354 IPC was framed against the accused Firoz State Vs. Firoz Ansari Page No. 3 of pages 31 Ansari to which he pleaded not guilty and claimed trial.
4. In support of its case, prosecution has examined as many as 14 witnesses. Out of them PW1, PW6, PW9, PW11 & PW13 are the formal witnesses, PW5, PW7 & PW8 are medical/expert witnesses and PW2, PW3, PW4, PW10, PW12 & PW14 are the material witnesses.
5. FORMAL WITNESSES: PW1 HC Gajender Singh Rana is the formal witness, who has deposed in his testimony that on 26.12.2008 he was on emergency duty and at about 11.05 a.m., he received a DD Entry No.12A (copy of which is Ex.PW1/C) pursuant to which he went to the spot i.e. Main Bazar, Pahar Ganj, where Smt. Rotani (complainant), prosecutrix and the accused were found present. He recorded her statement of complainant Ex.PW1/A and after recording the statement it was revealed that the matter was pertaining to PS Sadar Bazar, accordingly he took the prosecutrix, accused and the complainant to PS Sadar Bazar and recorded DD Entry No.39B Ex.PW1/B at PS Sadar Bazar. Thereafter, he handed over the statement of complainant Ex.PW1/A, DD Entry, accused and the prosecutrix to ASI Rajbir of PS Sadar Bazar. State Vs. Firoz Ansari Page No. 4 of pages 31
PW6 HC Anil Kumar, is the DD writer, who recorded the DD Entry No.12 A, copy of which is Ex.PW1/C, and handed over the same to HC Gajender for necessary action.
PW9 HC Vedpal, the Duty Officer at PS Sadar Bazar at the relevant time, has deposed in his testimony that on receipt of tehrir from ASI Rajbir Singh, he recorded FIR No.314/08 (copy of which is Ex.PW9/A) and handed over the original tehrir and copy of said FIR to IO/ASI Rajbir Singh for further investigation. He also made his endorsement on rukka, which is Ex.PW9/B. PW11 Sh. J. P. Nahar, the then Ld. MM proved the statement of prosecutrix Priya Ex.PW4/A and the same was recorded vide application Ex.PW11/A. Certificate for correctness of the statement of the prosecutrix Priya Ex.PW11/B was also proved by him. One copy of the statement was given to the IO vide Ex.PW11/C. PW13 W/HC Sheela Wati has testified that on 26.12.2008 she took the prosecutrix Priya to HRH Hospital for her medical examination. The mother of prosecutrix was also with them. Prosecutrix and her mother refused to get Priya examined internally by Gynae doctor. Statement of Smt. Rohtani Ex.PW3/B was recorded by the doctor on the State Vs. Firoz Ansari Page No. 5 of pages 31 back of MLC of prosecutrix Ex.PW8/A. Doctor also handed over the sealed parcel to the witness (PW13) containing there undergarments of the prosecutrix sealed with the seal of HRH and she handed over the same to IO/ASI Rajbir Singh, who seized the same vide Seizure Memo Ex.PW13/A. During cross examination she neither could tell the time of recording of her statement nor about who else was present with them at the time of recording of her statement. She confirmed that she was present in the Gynae Department, when prosecutrix and her mother refused to get her examined by the doctor.
6. MEDICAL/EXPERT WITNESSES: PW5 Dr. Ruchi Mohan Bajaj has testified that on 26.12.2008 at around 6.30 p.m., Ct. Sheela brought a girl aged 13 years namely Priya for her medical examination with an alleged history of sexual assault. She confirmed that on examination patient had no complaints and her vital were stable. She could not examine the patient internally, as her mother did not allow her to do the same. She also confirmed that clothes of patient and her undergarments were sealed with the seal of HRH and were handed over to the lady constable.
State Vs. Firoz Ansari Page No. 6 of pages 31
PW7 Dr. Pramod Kumar has testified that on 27.12.2008 patient Firoz Ansari was brought by ASI Rajbir Singh and the patient was examined vide MLC No.10537/08 Ex.PW7/A with the alleged history of eloping with a girl. He confirmed that there is nothing to suggest that person is not capable of doing sexual intercourse.
PW8 Dr. Laxmi Kanta Parida has testified in his deposition that on 26.12.2008 he was posted as EMO in HRH Hospital and on that day patient Priya aged 13 years and Firoz were brought before him by W/Ct. Sheela Wati and Ct. Pawan Kumar respectively. They both were examined by him vide MLC No.10550/08 Ex.PW8/A and MLC No.10537/08 Ex.PW8/B respectively. After their examination, the patients were referred to EMO(G) and EMO(S) respectively.
During cross examination he denied that initially he had written the words "alleged assault" and the word "sexual" was later on added by him.
7. MATERIAL WITNESSES: PW2 Vinod Kumar, one of the main public witnesses of the case and also the Bhatija of complainant, stated that on 26.12.2008 at around 11.00 a.m. he was coming at main bazar Pahar Ganj after doing State Vs. Firoz Ansari Page No. 7 of pages 31 his work and there he met with his bua (aunty) Rotani, who told him that her daughter namely Priya had been taken away by a boy after leaving her on rikhshaw and she was making search for her but could not find her. He also started searching for Priya and while making search he reached at main Bazar Chuna Mandi, where he saw Priya while siting in a rikshaw alongwith the accused, present in the court, and at that time she was weeping. He ran and caught hold the accused. On asking Priya, she disclosed that the accused was taking her away towards Kalawati Hospital and were roaming around Lady Harding Hospital on the pretext of bringing her some articles in Daan. She also told him that while roaming on rikshaw accused teased her also also did obscene acts. He identified his signature on the documents Ex.PW2/A & B. He confirmed that the accused was arrested in his presence. She further confirmed that the statement of the complainant and prosecutrix was recorded in his presence.
During cross examination by Ld. Amicus Curiae for accused he reiterated that he had seen his sister Priya being taking away at around 11.00 AM-12.00 PM and his bua met him in the Pahar Ganj while walking at the road at around 11.00 a.m. The accused and his sister State Vs. Firoz Ansari Page No. 8 of pages 31 priya were riding on the rikshaw and on seeing him, Priya raised noise to which accused tried to escape but he ran and caught him. He admitted that his statement was not recorded by the police and further clarified that it was recorded in the police station. He confirmed that the accused had signed on some papers in the police station in his presence. At the time of apprehending of the accused, a lot of people had assembled at the spot and one police man was already there but he was not aware of his name and other particulars. He started making search of his sister while going towards main bazar, whereas his bua was searching in the street near the Khanna Cinema. The rikshaw in which the accused and Priya were sitting was chatriwala but he could not tell the colour of the rikshaw. He further stated that on seeing him, prosecutrix Priya got down from the rikshaw. He denied the suggestion that due to personal enmity his bua had falsely implicated the accused or that he is deposing falsely at the instance of his bua and the police officials or that accused had not kidnapped his sister Priya.
PW3 Ms. Rotani, is the main witness of the prosecution being the mother of the prosecutrix and the complainant and in her deposition th she stated that perhaps it was 26 day of the month in last year and State Vs. Firoz Ansari Page No. 9 of pages 31 about 9.00 a.m., the accused present in court, came in her house and tried to convince her by saying that he was living in her gali and his maalik (employer) was blessed with a son after many years and he was celebrating and was distributing suit and saris and money in a ceremony. He asked her to come alongwith her daughter Priya and he would get them the Inaam. They boarded the rikshaw, accused was also sitting with them and when they went towards chuna mandi to Raj Guru road near Hari Maszid, accused left her in the rikshaw and himself went always alongwith the girl on the pretext that he will get her clothes and requested her to wait for them. She waited for half an hour but they did not turn up. She started search of her daughter in the Chuna Mandi and she was told by one shopkeeper that near Khanna Cinema main Bazar Pahar Ganj crowd was gathered and one small girl was also there. She reached there and found her daughter present there alongwith the accused, who was caught by the crowd. At the spot her Bhatija Vinod was also present, where she came to know that accused was caught by her Bhatija. She further testified that she was told by her daughter Priya that accused had taken her towards Kalawati Hospital in rikshaw and did obscene acts by rubbing on her body and teased her and further enticed State Vs. Firoz Ansari Page No. 10 of pages 31 her daughter for the ganda kaam for which he offered her to pay Rs.800/. When her daughter objected to the same and started weeping, accused took her back towards chuna mandi, where he was caught by his bhatija Vinod. Her daughter jumped off the rikhshaw and police also reached the spot, where her statement Ex.PW3/A as well as of her daughter was recorded. They were first brought to PS Pahar Ganj and then to PS Sadar Bazar. She further testified that her daughter was also taken for the medical examination in Hindu Rao Hospital, where she refused for the internal check up of her daughter. She admitted of having put her thumb impression at point A on the portion encircled red on MLC, portion Ex.PW3/A. She also admitted that she had also put her thumb impression on the arrest document of accused. She also admitted her thumb impression at point B on Ex.PW2/A and B. During cross examination she conceded that accused was not known to her earlier. She further stated that she usually does not accompany with any unknown person as they had accompanied with the accused but since they are illiterate, as such they believed upon the accused. Further accused had told them that that he was residing in front of their house but they had not seen him ever. She further admitted State Vs. Firoz Ansari Page No. 11 of pages 31 that she did not allow her daughter to go with an unknown person nor she herself would prefer to go with an unknown person. She further conceded that they were influenced with the promises of the accused as they are the poor people. Accused had firstly told her husband that his employer was distributing the clothes etc. Her husband did not raise any objection to it, rather, he told her that some pecuniary benefits might occur to them. The Rikshaw in which they all three boarded was hired by the accused and the color of rikshaw was red and rikshaw was chatriwala. The accused neither asked the rikshawala about the destination where they were to go nor about the fare in her presence. She could not tell as to whether there was any space to sit behind the rikshaw. When the rikshaw reached at Multani Dhanda, the accused got the rikshaw stopped and got down alongwith the girl by saying that the gifts would be given only after seeing the girl.
PW4 the prosecutrix, a minor girl, confirmed in her testimony that on 26.12.2008 at around 9.009.30 a.m. accused, present in court, requested her and her mother to join him as he would get them inaam, suit and sari as his employer was blessed with a son after many years and he was celebrating a function. They were agreed and boarded the State Vs. Firoz Ansari Page No. 12 of pages 31 rikshaw. When they reached at chuna mandi he left her mother in rikshaw by saying rikshawwala to come from the other side of the gali. He took her in an another rikshaw and after every red light he changed the rikshaw. When they stopped near Kalawati Hospital and started teasing me (badtamiji). He moved his hands on her breast and back and also asked her for the galat kaam with him and also offered her to pay Rs.800/ for the same. He also insisted her to take out her clothes. Rikshawala was plying rikshaw and could not hear anything. She started crying and then only after changing rikshaw he started bringing her back. When they reached near Khanna cinema her brother Vinod was seen, she immediately jumped from the rikshaw as the accused, present in the court, did not allow the rikshawala to stop the rikshaw. Accused started running from the spot and her brother caught him. Many people from the shops gathered there. Police was called by some one. By that time her mother also reached there. Her statement was recorded by the police. She was brought to the hospital for medical examination and in the hospital her mother refused for the check up. On 02.01.2009, her statement Ex.PW4/A was recorded in the court. She correctly identified the case property i.e one pajami Ex.P1 and one vest (baniyan) Ex.P2 State Vs. Firoz Ansari Page No. 13 of pages 31 which were worn by her at the time of incident.
During cross examination she conceded that neither she nor her mother had asked the accused about the name and other particulars of the person (seth), who was distributing the clothes. Accused was not previously known to them. When the accused asked her mother to accompany him to get the gifts, her father was also present at that time and accused had also told to him that his malik (employer) was blessed with a son after a long time, so he was distributing the clothes to the poor people. At that time her brothers were in the same house but they were on the upper floor of the house. The rikshaw was hired by the accused and it was covered (chatriwala). She was sitting on the lap of her mother. She could not tell the fate of the rikshaw. The accused used to change the rikshaw at every red light. When he took her near the Kalawati Hospital, he started misbehaving with her but she did not raise the noise as the accused was beating her.
PW10 Ct. Pawan Kumar confirmed that on 26.12.2008 at around 4.30 p.m. the DO of the PS Sadar Bazar handed over to him the statement of the complainant Rohtani and the accused Firoz Ansari present in the court and also the prosecutrix to the IO in his presence. IO State Vs. Firoz Ansari Page No. 14 of pages 31 made an endorsement on the statement of the complainant and got prepared the FIR. He confirmed the arrest of the accused by identifying his signature at arrest memo Ex.PW2/A at point C. He also proved the Personal Search Memo Ex.PW 2/B by identifying his signature at point B. He confirmed that after medical examination of the accused at HRH hospital doctor concerned gave two pullandas containing blood samples and under garments sealed with the seal of HRH to which handed over to the IO vide memo Ex.PW10/A. During cross examination he confirmed that IO was with him when he took the accused to HRH hospital. They reached the hospital at around 5.15 p.m. PW12 ASI Shakun confirmed that on 08.01.2009, the further investigation of this was entrusted to her and after inspecting the file, she obtained the judicial remand of the accused and then handed over the file to SHO for preparation of charge sheet.
PW14 ASI Rajbir, the IO of this case, has reiterated the story of prosecution by confirming that on 26.12.2008, HC Gajender Singh of PS Pahar Ganj came to PS Sadar Bazar alongwith prosecutrix and her mother and accused Firoz Ansari and at the same time DO of PS Sadar State Vs. Firoz Ansari Page No. 15 of pages 31 Bazar also handed over copy of DD NO.39B Ex.PW1/B to him. HC Gajender Singh also handed over original statement of the complainant Ex.PW1/A regarding kidnapping of the prosecurtrix. He made endorsement on the same and got the formal FIR registered through DO. Endorsement is Ex.PW14/A. He also confirmed the factum of arrest of accused and also the conducting of his personal search. He further confirmed that he alongwith prosecutrix, her mother, accused, L/Ct. Sheela and Ct. Pawan went to HRH Hospital for medical examination of accused and prosecutrix. After medical examination doctor handed over the MLCs of the accused and the prosecutrix alongwith the exhibits duly sealed with the seal of HRH to him. He proved the seizure memo Ex.PW10/A & Ex.PW13/A. He claimed that he tried to search the rikshaw puller in which the prosecutrix was kidnapped but he could not be traced out. On 27.12.2008 accused was medically examined by Forensic Expert. He also got the statement of prosecutrix recorded U/s 164 Cr.P.C. by Ld. MM Delhi.
During cross examination he stated that he started investigation on the directions of SHO which he marked in DD entry as well as in FIR. There was no public witness at the time of arrest of the accused. State Vs. Firoz Ansari Page No. 16 of pages 31 However, he obtained the signatures of the complainant and the brother of the prosecutrix and also of Ct. Pawan on the arrest memo of the accused. The accused and prosecutrix were taken to hospital in two TSRs.
8. After conclusion of prosecution evidence, statements of accused u/s 313 Cr. P. C was recorded in which he vehemently denied the story of the prosecution and the evidence brought up by the prosecution and claimed that he has been falsely implicated in this case at the instance of the parents of the prosecutrix with whom he was having some dispute regarding money but he opted to produce no evidence in his defence.
9. I have carefully heard the rival submissions of both the sides. I have also perused the entire material placed on record.
10. In the instant case the accused Firoz Ansari has been charged with the offences U/s 363/354/365/366 IPC.
To constitute an offence u/s 363 IPC:
(i).The person kidnapped must be a minor or a person of unsound mind;
(ii).there must be taking or enticing of a minor or a person of unsound mind;
State Vs. Firoz Ansari Page No. 17 of pages 31
(iii).the taking or enticing must be from the keeping of a lawful guardians of a minor or person of unsound mind; and
(iv).the taking or enticing must be without the consent of such guardian.
The minor means under 16 years in the case of a male or under 18 years in the case of female. In the case of minor girls the section is attracted irrespective of the question whether she is married or unmarried. The offence of kidnapping consists solely of taking a minor from the keeping of her lawful guardian and no intention need be established.
The word "take" means to cause to go, to escort, or to get into possession. The taking need not be by force, actual or constructive.
The expression "enticing" in the section, involves that while the person kidnapped might have left the keeping of the lawful guardian willingly still the state of mind that brought about the willingness must have been induced or brought about in some way by the accused. It involves an idea of inducement by exciting hope or desire in the other.
A minor is not competent to give her consent to her taking because it is the consent of the guardian which is material. However, a State Vs. Firoz Ansari Page No. 18 of pages 31 minor is certainly competent to leave the protection of her guardian of her own accord.
11. Section 365 deals with kidnapping or abduction of a person with the intention of causing such person to be secretly and wrongfully confined.
Essence of Section 365 IPC also is kidnapping. The intend to cause the person abducted to be secretly and wrongfully confined is an essential element of an offence U/s 365 of the Code.
12. Section 366 IPC has two parts. The first part is attracts:
(a). Where A kidnaps or abducts any woman:
(i).with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will;
(ii).or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse.
The second part applies:
(1) Where A, by means of criminal intimidation as defined in the Penal Code or of abuse of authority or any other method of compulsion, induces any woman to go from any State Vs. Firoz Ansari Page No. 19 of pages 31 place:
(a).with intent that she may be forced or seduced to illicit intercourse with another person.
(b).with the knowledge that it was likely that she would be forced or seduced to illicit intercourse with another person.
In order to constitute an offence under this section, there must be kidnapping or abduction.
Thus in order to prove an offence U/s 366 IPC it is essential that
(a). a women was compelled by force or deceitful means to go from any place;
(b). she was so compelled or induced with intend that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced illicit intercourse. To convict a person under the later part of section 366, it is essential that he is found to have practiced some "criminal intimidation" or employed "any other method of compulsion".
13. To constitute an offence U/s 354 IPC, there must be an assault or use of criminal force to any woman with the intention or knowledge that the woman's modesty will be outraged. If the intention to outraged State Vs. Firoz Ansari Page No. 20 of pages 31 modesty is not proved and the victim is a consenting or voluntary party to the affair, the accused can not be convicted U/s 354 IPC. Exposure of the private parts in the presence of other may amount to indecency, but not an assault or use of criminal force. Thus where the only evidence against the accused was that he removed his clothes and showed his private parts to a lady, that by itself would not amount to an offence U/s 354 IPC.
Knowledge that modesty is likely to outraged is sufficient to constitute the offence without any deliberate intention of having such outraged alone for its object. However, the accused can not be convicted to this 0offrence where the woman had either no modesty to mention or it was not such as would be outraged by the acts attributed to him.
Where the dhoti of a woman got loose in a scuffle which was the direct result of her own violence and not on account of any deliberate act on the part of the accused, this section was held not attracted.
14. It is the case of the prosecution herein that the accused had kidnapped the prosecutrix from the lawful guardianship of her mother on the pretext of getting her gifts from his employer and had taken her away with intend to secretly and wrongfully confining her in order to forced or State Vs. Firoz Ansari Page No. 21 of pages 31 seduced her to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse.
Per contra, according to the accused he has been falsely implicated by the parents of the prosecutrix which whom he was having some money dispute.
15. To bring home the guilt of the accused Firoz Ansari, the prosecution was required to establish the following:
(i).he had allured the prosecutrix and her mother on the pretext of getting them gifts from his employer;
(ii).the accused had taken away the prosecutrix from the lawful guardianship of her mother;
(iii).he had taken away the prosecutrix with intend to secretly and wrongfully confining her;
(iv).he had taken away her with intend to force or seduce her to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse.
(v).he had assaulted or use criminal force against the prosecutrix with intend to outraged her modesty.
16. According to Ld. Addl. PP for the State the case of the prosecution is crystal clear. By the statements of the prosecutrix, her mother and PW2 Vinod coupled with the testimonies of medical and official witnesses, it has been established that accused had kidnapped the prosecutrix out of the lawful guardianship of the complainant and at State Vs. Firoz Ansari Page No. 22 of pages 31 that time he was having intention to secretly and wrongfully confining her with an intend to force or seduce her to illicit intercourse. Whereas the accused has been failed to bring evidence in contrary to establish his innocence.
Per contra according to Ld. Amicus Curiae for the accused, since there is material contradictions in the statements of PW2, prosecutrix and her mother, as such it can not be said that the prosecution has been able to prove its case beyond the shadow of reasonable doubt.
17. I have carefully heard the rival submissions of both the sides. I have also perused the entire material placed on record.
18. In the instant case, the accused has been charged for kidnapping the prosecutrix from the lawful guardianship of her mother. In their respective statements, all the material witnesses i.e. PW2 Vinod Kumar, PW3 Rotani (the complainant and the mother of prosecutrix) and PW4 (the prosecutrix) have categorically confirmed that the accused had visited the house of the complainant and allured her to accompany him alongwith her daughter in order to get Inaam, Suits and Sari as his employer was blessed with a son and he was distributing the State Vs. Firoz Ansari Page No. 23 of pages 31 gifts in the public. PW4 (the prosecutrix) further confirmed that when the rikshaw in which she alongwith her mother and the accused was traveling and they reached near Chuna Mandi Pahar Ganj, the accused left the said rikshaw alongwith the prosecutrix and took the prosecutrix out of the custody of her mother. The relevant portion of her testimony is extract as under: "We all three boarded in rikshaw. When we reached at Chuna Mani, he left my mother in rikshaw by saying rikshawala to come other side. He took me in one another rikshaw and after red light he changed the rikshaw.
PW3 Ms. Rotani (the complainant) has also corroborated this fact in her testimony when she deposed that "he left the rikshaw and requesting me to wait there. He took my daughter on the pretext that he will get her clothes. I waited for half an hour but accused with my daughter did not turn up." when their rikshaw reached near Chuna Mandi, the accused left the rikshaw while taking the prosecutrix with him and asked her to sit and wait.
PW2 has also corroborated with the testimonies of above witnesses. He stated that he met with Rotani in the main bazar and she told him that her daughter namely Priya has been taking away by one State Vs. Firoz Ansari Page No. 24 of pages 31 boy after leaving her on rikshaw and she was making search for her. He further stated that the accused and the prosecutrix were riding on the rikshaw. On seeking him the prosecutrix raised noise. Accused tried to escape but he ran and caught him. In these way all these witnesses have established that the prosecutrix was taken away by the accused from the custody of her mother. Although, all these witnesses were cross examined by Ld. Amicus Curiae for accused at a great length but it remained a futile exercise. There is no dispute regarding the identity of the accused. All the aforesaid witnesses have duly identified him before the court. Factum of arrest of the accused is also proved on record vide memo Ex.PW2/A. The statement of the complainant Ex.PW1/A is not only proved by the complainant and IO but also by HC Hajender Singh of PS Pahar Ganj. Thus the prosecution has been able to prove its case U/s 363 IPC and therefore, I hereby hold the accused guilty U/s 363 IPC.
19. As regards to the offence U/s 365/366 IPC is concerned, none of these witnesses have stated that the accused was taking away the prosecutrix with an intent to secretly and wrongfully confining her or accused was taking away the girl with intend to compel her to marry him against her wishes or to force her or to seduce her to illicit intercourse State Vs. Firoz Ansari Page No. 25 of pages 31 with any person. Rather, it is stated by the victim that when she started weeping the accused started bringing her back in the rikshaw. Thus in these circumstances, the accused can not be held guilty U/s 365/366 IPC. As such he is acquitted in those sections.
20. Now let us see, what is the position in respect of the offence U/s 354 IPC?
In her testimony, the prosecutrix has clearly testified that after taking her away in the rikshaw the accused started teasing her (badtamizi). She clearly stated that he moved his hands on her breast and back and also asked her for the galat kaam with him and for this purpose he also offered to pay her Rs.800/ for the same. PW3 Rotani has also confirmed that she was told by her daughter that accused had taken her towards Kalawati Hospital in the rikshaw and did obscene acts by rubbing his hand on the body of her daughter and teased her. She also confirmed that the accused had enticed her daughter for the ganda kaam by offering Rs.800/ to her. Thus by the deposition of PW4 it is clear that she was not a consenting party and the accused wanted to outrage her modesty by using criminal force against her and for that he rubbed his hand on the breast of the prosecutrix and in that manner he State Vs. Firoz Ansari Page No. 26 of pages 31 had outraged her modesty. Hence the requirement of Section 354 IPC is complete and I therefore, hold the accused guilty U/s 354 IPC.
21. In view of the aforesaid, accused Firoz Ansari S/o Abdul Kanjoom Ansari is held guilty for commission of offence punishable U/s 363 & 354 IPC and accordingly he is convicted therein under. Whereas he is acquitted of the charges U/s 365 & 366 IPC.
22. Now he be heard on the point of quantum of sentence.
(Announced in the open (RAKESH KUMAR)
court today on 25.08.2009) ASJ04 (NORTH)/DELHI
State Vs. Firoz Ansari Page No. 27 of pages 31
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE04 (NORTH) : DELHI
In the matter of:
State Vs. Firoz Ansari
S/o Abdul Kanjoom Ansari
R/o Village & PO Benibad,
District-Darbhanga, Bihar.
Also at:
R/o 11103, Gali Sarwari Wali,
Motia Khan, Sadar Bazar, Delhi.
28.08.2009
ORDER OF SENTENCE
1. I have given my thoughtful consideration to the rival submissions of Ld. Amicus Curiae for convict as well as of Ld. Addl. PP for the State on the point of quantum of sentence to be awarded to the convict.
2. Vide my judgment 25.08.2009, I have already convicted Firoz Ansari S/o Abdul Kanjoom Ansari U/s 363 & 354 IPC. It is submitted on behalf of the convict that he is not a hardened criminal and has no criminal antecedent. He himself is a young man and belongs to the poor strata of the society. The convict is the sole bread winner for his family. At this stage harsh punishment of imprisonment will amount not only ruining of the family but it will also be a punishment for his family, who are dependent on him for their livelihood. The convict is already behind the bar since 26.12.2008 and during this period he has learnt sufficient lesson. It is also claimed on behalf of the convict that the conduct and behaviour of the convict has remained upto the mark through out the period of trial and no complaint has been reported against him from State Vs. Firoz Ansari Page No. 28 of pages 31 from any corner. For the aforesaid reasons, the Ld. Amicus Curiae for the convict is praying for some leniency towards the convict.
3. On the other hand according to Ld. Addl. PP for the State, the convict has committed serious offence which is against the society at large and he deserves the stern punishment. He should not be allowed to flee away from the punishment merely on account that he has a large family behind him to look after as as it will give a wrong message in the society. Punishment should not be a nail bitting one. As such, the maximum sentence should be awarded to the convict. In the case in hand, the circumstances demand that the convict should be given severe punishment to have a deterrent effect on the society.
4. Sentencing is a very difficult process. At one end there is a question of personal liberty and at the same time on the other hand the question of larger interest of society is involved.
It has been very aptly indicated in Dennis Councle MCGDautha Vs. State of Callifornia (402 US 183: 28 L.D. 2d 711) that, "no formula of foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished."
In 2008 X AD (S.C.) 645 in case titled as Siriya @ Shri Lal State Vs. Firoz Ansari Page No. 29 of pages 31 Vs. State of Madhya Pradesh it has been held that, "In operation of Sentencing System, law should adopt corrective machinery or the deterrence based on factual matrix - Facts and given circumstances in each case, the nature of the crime, in manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, nature of weapons used and all other attending circumstances are relevant in award of sentence - Sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy in law. ....... In each case, there should be proper balancing of aggravating and mitigating circumstances on the basis of relevant circumstances in a dispassionate manner."
In Sevaka Perumal etc Vs. State of Tamil Nadu (1991 (3) SCC 471) it was held that, "It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.
5. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society.
Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be - as it should be - decisive reflection of social consciousness of society". Therefore, in State Vs. Firoz Ansari Page No. 30 of pages 31 operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
6. After giving my thoughtful consideration to the aforesaid submissions made on behalf of both the sides, I have come to the considered opinion that the interest of justice shall be fully met if the convict is awarded sentence of rigorous imprisonment for the period already undergone by him U/s 363 IPC as well as U/s 354 IPC alongwith a fine of Rs.1,000/ and in default of payment of fine, he shall undergo simple imprisonment for the period of another one month. Order on sentence is passed accordingly. Copy of the judgment and order on sentence be given to the convict free of cost.
7. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR)
court today on 28.08.2009) ASJ04 (NORTH)/DELHI
State Vs. Firoz Ansari Page No. 31 of pages 31