Delhi District Court
State vs Wahid S/O Md. Harun, R/O Mohalla on 23 March, 2013
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : NORTH EAST /
KARKARDOOMA COURTS: DELHI.
Case ID Number. 02402R0323652011
Sessions Case No. 81/2011
Assigned to Sessions. 02.12.2011
Arguments heard on 13.03.2013
Date of Judgment 23.03.2013
FIR No. 192/2011
State Vs Wahid S/o Md. Harun, R/o Mohalla
Raurawal, Shahjahan Mall, Aligarh,
U.P.
Police Station Gokalpuri
Under Section 363/366/376 IPC
JUDGMENT
1. Vide this judgment I shall dispose off this case in which Station House Officer of Police Station Gokalpuri had filed a challan vide FIR No. 192/2011 dated 22.10.2011 u/s 363/366/376/34 IPC for the prosecution of accused Wahid in the court of ld. Metropolitan Magistrate and section 207 Cr. P.C. had already been complied with by Ld. M.M. Since, this court is designated court for trial of the cases pertaining to child victims, hence this case was sent by Ld. District Judge/Incharge, North East District, Karkardooma Courts to this court for trial. Keeping in view of section 228 (A) IPC and directions of Supreme court in "State of Karnataka Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of U.P. SC No.81/2011 State v. Wahid 1/25 2006, CRLJ. 2913", the name of prosecutrix is not being given in the judgment.
2. In brief, the facts of the case are that on 13.06.2011, victim along with her mother reached at police station Gokalpuri and got recorded her statement Ex.PW1/A to W/S.I. Rano Devi, upon which endorsement Ex.PW6/A was made by W/S.I. Rano Devi for registration of FIR. Accordingly, FIR No.192/2011 u/s 363/376/34 IPC Ex.PW1/B was registered. During the course of investigation police had arrested accused Wahid.
CHARGE:
3. On the basis of material available on record this court vide order dated 29.02.2012 framed a charge against accused Wahid for the offence punishable u/s 363/366/376 IPC to which accused did not plead guilty and claimed trial. PROSECUTION WITNESSES:
4. In order to prove its case prosecution has examined 09 witnesses namely PW1 Prosecutrix, PW1A ASI R.P. Pandey, PW2 ASI S.P. Singh, PW3 Lady Ct. Anupma, PW4 Ct. Rajiv, PW5 Dr. Nitasha Gupta, PW6 WSI Rano Devi, PW7 Ms. Shuchi Shamiri, Ld. MM and PW8 Dr. Chhavi Sharma.
5. PW1 Prosecutrix is material witness being victim. This witness has deposed that she had never joined school and in the year 2011, she was residing along with my parents and on the day of incident, she was 16 years old.
SC No.81/2011 State v. Wahid 2/25
6. This witness has further deposed that on 03.06.2011 at about 3:00 p.m. one Vikar and his wife had come at her house and they requested her to assist them for going to Bhajanpura market and she was permitted by her mother and she took them towards Bhajanpura market and when they were near the Chand Baba Mazar where one white car had been found parked. This witness has further deposed that they directed her to sit inside the car and she set inside the car and found four persons namely accused Wahid present in court correctly identified and Maksood, Azimuddin and Khalil inside the car. This witness has further deposed that Vikar and his wife also set in the said car and they took her to Aligarh, U.P. and they kept her there in a unknown place in a room and accused Wahid had stayed in that room and remaining five left that room at about 10:00 - 11:00 p.m. on the same day.
7. This witness has further deposed that accused Wahid had compelled her to marry with her again and again and she refused for the same. This witness has further deposed that accused Wahid had confined her in aforesaid room and on 05.06.2011 at about 11:00 p.m. accused Wahid raped her in that room against her will and consent and she was confined by accused Wahid there till 11.06.2011 and during her stay accused Wahid had obtained her signatures on some papers and taken her photographs there.
8. This witness has further deposed that on 12.06.2011 accused Wahid brought her Delhi by the same car and left her near the Chand Baba Mazar, Bhajanpura, Delhi SC No.81/2011 State v. Wahid 3/25 and at that time, accused Wahid had threatened her to kill her family if her parents not permitted to marry her with him. This witness was taken to Police Station on 13.06.2011 at about 5:00 - 6:00 p.m. by her mother and maternal uncle. This witness has proved her statement Ex.PW1/A.
9. This witness has proved her MLC vide Ex.PW1/B and her statement u/s 164 Cr.P.C vide Ex.PW1/C. This witness has also proved arrest memo Ex.PW2/A and Personal Search Memo Ex.PW2/B of accused Wahid.
10.In her cross examination by Sh. Makhtoor Khan, ld. counsel for accused, this witness has deposed that accused Wahid was known to her one and half month prior to November'2011 as he was visiting terms in her gali and she had no relations with him. This witness had denied to the suggestion that on the day of incident she was having Voter Identity card or that her name was enrolled in the voter list along with her other family members or that she was in love with accused Wahid for last 34 years or that she had signed any marriage document with accused Wahid.
11.This witness admits photocopy of Nikah agreement dated 05.06.2011 mark 'DA' bears her signature at point A, B and C and it also bears her photograph at encircled portion C.
12.This witness further admits photocopy of nikahnama mark 'DB' which bears her signature at point A. This witness has voluntarily deposed that accused Wahid had SC No.81/2011 State v. Wahid 4/25 obtained her signature by force. This witness had denied to the suggestion that she had told her age before Notary Public and before Kazi as 22 years.
13.This witness admits two photographs mark 'DC' and 'DD' which are depicting her and accused. This witness has denied to the suggestion that these photographs had been taken at the time of nikah/marriage with her consent or that she was happy at the time of alleged nikah/marriage as aforesaid photographs are depicting.
14.This witness had denied to the suggestion that she had left her house voluntarily at about 3:00 p.m. on 03.06.2011 on the request of accused Wahid or that accused Wahid had taken her to Meerut with her consent as she loves to him or that on that day she was more than 20 or 22 years of old.
15.This witness further admits that place near Bhajanpura chowk where she was taken by accused is a crowded place and she seated in a car to go to Bhajanpura Market and at that time, she had not raised alarm. This witness further admits that there were red lights in the way to Aligarh from Delhi and she had not raised any alarm at any of red lights.
16.This witness admits that she is a permanent resident of Shahjamal, Aligarh, U.P. and there were some other dwelling house adjoining the house where accused had kept her and he had not raised any alarm while living at Aligarh, U.P. SC No.81/2011 State v. Wahid 5/25
17.This witness had denied to the suggestion that she had gone to Meerut with her own along with accused on 03.06.2011. This witness has deposed that she cannot say who was the owner of the house in Aligarh in which accused had kept her and no other person except her and accused was there.
18.This witness had denied to the suggestion that she was 22 years old on 05.06.2011. Portion DY to DZ of Ex.PW1/C read over to this witness word by word, she admits contents of aforesaid portion.
19.This witness has further deposed that she had stated to the police in her statement that accused had extended threat to kill her.
20.This witness has deposed that she along with her mother, maternal uncle and her younger brother Dilshad were present at the time of arrest of accused Wahid.
21.This witness had denied to the suggestion that she was in love with accused or that she had married with accused with her consent or that whatever had been happened with her, she was consented for that. This witness had further denied to the suggestion that she was 19 years old at the time of incident or that she had talked with accused after her examinationinchief before the court or that she had offered for settlement with accused or that she is deposing falsely. SC No.81/2011 State v. Wahid 6/25
22.PW1A ASI R.P. Pandey is a formal witness being duty officer. This witness has proved copy of FIR vide Ex.PW1/B which was recorded on the basis of rukka Ex.PW1/A which was presented before her by WS.I. Rano Devi This witness has also proved DD No.22A.
23.PW2 ASI S.P. Singh. This is the witness of arrest of accused Wahid at the instance of prosecutrix from Bhajanpura redlight, Wazirabad Road, Delhi. This witness has proved arrest memo Ex.PW2/A and personal search memo Ex.PW2/B and disclosure statement Ex.PW2/C of accused Wahid.
24.This witness has deposed that accused led him and I.O. in a room, in the area of Sarawar Sahajanmal, Aligarh, U.P. and pointed out the place of rape and I.O. had prepared pointing out memo on the pointing out of accused Ex.PW2/D.
25.PW3 Lady Ct. Anupma. This witness had got medically examined the prosecutrix in GTB Hospital vide MLC Ex.PW1/B and hospital staff had handed over sexual assault evidence collection kit in sealed condition along with sample seal to her and this witness had produced victim along with her MLC before I.O. and she had also handed over aforesaid kit and sample seal pertaining to medical examination of prosecutrix to I.O. which was seized vide seizure memo Ex.PW3/A by the I.O.
26.PW4 Ct. Rajiv. This witness had taken accused Wahid, present in court (correctly identified), to GTB Hospital for his medical examination on the request of I.O. SC No.81/2011 State v. Wahid 7/25 and got her medically examined vide MLC, Mark X. This witness had received three sealed parcels containing exhibits pertaining to medical examination of accused along with sample seal from the doctor and handed over aforesaid sealed parcels and sample seal to I.O. which were seized by the I.O. vide seizure memo Ex.PW4/A. This witness has also proved arrest memo Ex.PW2/A and and personal search memo Ex.PW2/B of accused Wahid.
27.PW5 Dr. Nitasha Gupta, S.R. GTB Hospital, Delhi. This witness has proved MLC Ex.PW1/B of victim which is as follows :
"On examination: LMP was 06.06.2011 and UPT was negative. She was conscious and oriented. Vitals were stable. Systemic examination was NAD. There were no signs of external injuries.
On local examination: Public hair not matted. External genitalia was healthy and hymen was torn. On speculum examination: cervix and vagina were normal. On P/V uterus was normal in size, non tendered and bilateral fornices free."
28.In her cross examination by Sh. Makhtoor Khan, counsel for accused, this witness admits that hymen torn may be caused by cycling or by playing or by jumping.
29.PW6 WSI Rano Devi is a material witness being I.O. This witness had recorded statement of victim, Ex.PW1/A. Thereafter, she had made endorsement thereon, Ex.PW6/A. This witness has prepared site plan, Ex.PW6/B, at the instance of victim.
SC No.81/2011 State v. Wahid 8/25
30.During the course of investigation, this witness had got medically examined victim at GTB Hospital vide MLC Ex.PW1/B through lady Ct. Anupama and she had also seized sealed parcels given by doctors of GTB Hospital vide seizure memo already Ex.PW3/A.
31.During the course of investigation, this witness had got the statement of victim recorded u/s 164 Cr. P.C. before Ld. MM vide mark PW6/A. This witness has proved arrest memo Ex.PW2/A, personal search memo Ex.PW2/B and disclosure statement Ex.PW2/C of accused Wahid. This witness had got the accused medically examined in GTB Hospital vide MLC Mark X. This witness had seized the sealed sample parcels collected by the doctor during his medical examination vide memo Ex.PW4/A.
32.During the course of investigation, this witness has prepared pointing out memo of place of incident vide Ex.PW2/D. This witness had collected the certified document pertaining to the age proof of victim from the office of Nagar Nigam Electoral Roll, wherein, age of victim has been suggested as 19 years vide Ex.PW6/E.
33.During the course of investigation, this witness had sent sealed parcels to FSL Rohini and proved the FSL reports vide Ex.PW6/F and Ex.PW6/G respectively.
34.During the course of investigation, this witness had examined and recorded the statements of witness from time to time and on the completion of investigation this SC No.81/2011 State v. Wahid 9/25 witness had prepared the chargesheet against accused.
35.In her cross examination by ld. defence counsel, this witness has deposed that she had received the information at P.S. Jyoti Nagar at about 4:45/05:00pm through telephone and she had left P.S. Jyoti Nagar after about 57 minutes. This witness has further deposed that she had recorded statement of victim firstly. Thereafter, she had recorded the statement of her mother in her own handwriting. This witness has further deposed that she had arrested accused at the instance of victim and her brother.
36.This witness had denied to the suggestion that accused had surrendered himself at P.S.; or that she had not gone anywhere to arrest the accused.
37.This witness on showing the pointing out memo Ex.PW2/D by Ld. defence counsel, admits that the pointing out memo reflects the place of pointing out as Rorawar, Shahjamal, Aligarh, U.P. This witness further admits that no public person or police officials of Aligarh, U.P. is the witness on aforesaid memo.
38.This witness had denied to the suggestion that he had not gone to Aligarh, U.P.; Or that aforesaid memo was prepared while sitting at P.S. Jyoti Nagar.
39.This witness has deposed that she does not remember whether she had got conducted bone age Xray of victim for the determination of her age. SC No.81/2011 State v. Wahid 10/25
40.This witness has further deposed that she does not remember if she had collected any proof of birth certificate of victim issued by any authority showing the age of victim below 16 years. Ld. defence counsel has shown judicial record with the permission of court to this witness and after going through the judicial record, witness submits that no such document is available on record.
41.This witness had denied to the suggestion that he had not investigated this case fairly and properly. This witness had further denied to the suggestion that accused had not kidnapped the victim; Or that the victim of her own free will had gone along with accused; Or that she had married with accused of her own free will according to Muslim rites and customs; Or that she is am deposing falsely.
42.PW7 Ms. Shuchi Shamiri, Ld. MM has recorded statement of prosecutrix u/s164 Cr. P.C. She proved the same as Ex.PW1/C. She has further proved the application to obtain copy of aforesaid statement as Ex.PB, besides the application moved by investigating officer to record statement u/s 164 Cr.P.C. as Ex.PA.
43.PW8 Dr. Chhavi Sharma. CMO, GTB Hospital, Delhi. This witness has proved MLC of accused vide Ex.PW8/A on behalf of Dr. Nitin Chawla. STATEMENT OF ACCUSED U/S 313 CR.P.C.:
44.After prosecution witnesses, statement of accused u/s 313 Cr. P.C. was recorded wherein accused had denied all circumstances and evidence put to him and SC No.81/2011 State v. Wahid 11/25 claimed to be innocent and have been implicated falsely in the present case. Accused stated that at the time of alleged incident, alleged victim was major and she had voluntarily married with her and there was no threat, coercion or pressure upon the alleged victim and she willingly had married with him in the presence of witnesses and a certificate was issued to this effect by a Qazi. Accused further stated that he and alleged victim had signed an affidavit and marriage agreement and photographs of marriage while signing the Nikahnama by alleged victim had also been taken on that time and same had been placed on record.
45. Accused has preferred to lead D.E. Hamid Ali was examined as DW1.
46.DW1 Hamid Ali has deposed that on 04.06.2011 he had witnessed the nikah between the accused Wahid and victim performed at Shahjamal, Aligarh, U.P. and Nikah was performed through Qazi. This witness has further deposed that he had seen the victim and the Qazi had enquired about the age of victim and victim had disclosed her age as 19 years. This witness has proved nikahnama vide mark PW1/DB. Thereafter, D.E. was closed.
47.Thereafter, case was fixed for arguments.
ARGUMENTS:
48.Ld. APP for State argued that accused Wahid has been prosecuted under section 363/366/376 IPC.
SC No.81/2011 State v. Wahid 12/25
49.Ld. APP for the State further submitted that accused had abducted victim by deceitful means. Hence, kidnapping completed.
50.Ld. APP for the State further submitted that no documents pertaining to age of prosecutrix is on record.
51.Ld. APP for State further submitted that statement of prosecutrix is sufficient to convict the accused u/s 363/366/376 IPC. Hence, he has prayed to convict the accused Wahid under the section for which he has been charged.
52.On other hand Ld. defence counsel for accused submitted that no radiological test of victim for her age had been conducted. No verification of house at Aligarh had been done.
53.Ld. counsel for accused further submitted that victim and accused had been arrested at the instance of her brother who had not been examined.
54.Ld. counsel for accused further argued that as per MLC of prosecutrix, hymen torn and no fresh injury on the person of prosecutrix.
55.Ld. counsel for accused further submitted that no proof of age of victim is on record and as per FSL report there is no evidence of rape by accused. SC No.81/2011 State v. Wahid 13/25
56.Ld. counsel for accused further submitted that pointing out memo does not proved that I.O. had visited Aligarh. On these grounds, ld. counsel for accused has prayed that accused Wahid be acquitted from the charges. PERUSAL OF RECORD/OPINION:
57.Argument heard. Record perused. On perusal of record it is revealed that on the statement of prosecutrix Ex.PW1/A present case was registered.
58.On perusal of record, it is further revealed that I.O. had prepared site plan, Ex.PW6/B, at the instance of victim but there is no signature of victim on the same.
59.On perusal of record, it is further revealed that during the course of investigation, I.O. had got medically examined victim at GTB Hospital vide MLC Ex.PW1/B through lady Ct. Anupama and she had also seized sealed parcels given by doctors of GTB Hospital vide seizure memo Ex.PW3/A.
60.On perusal of record, it is further revealed that during the course of investigation, this witness had got the statement of victim recorded u/s 164 Cr. P.C. before Ld. MM vide mark PW6/A.
61.On perusal of record, it is further revealed that I.O. has proved arrest memo Ex.PW2/A, personal search memo Ex.PW2/B and disclosure statement Ex.PW2/C of accused Wahid and got the accused medically examined in GTB Hospital vide SC No.81/2011 State v. Wahid 14/25 MLC Mark X. I.O. had seized the sealed sample parcels collected by the doctor during his medical examination vide memo Ex.PW4/A.
62.On perusal of record, it is further revealed that during the course of investigation, I.O. has prepared pointing out memo of place of incident vide Ex.PW2/D. I.O. had also collected the certified document pertaining to the age proof of victim from the office of Nagar Nigam Electoral Roll, wherein, age of victim has been suggested as 19 years vide Ex.PW6/E.
63.On perusal of record, it is further revealed that during the course of investigation, this witness had sent sealed parcels to FSL Rohini and proved the FSL reports vide Ex.PW6/F and Ex.PW6/G respectively. FSL report Ex.PW6/F shows that Human Semen was detected on exhibits '3' and '4' .
64.On perusal of record, it is further revealed that MLC Ex.PW1/B shows that hymen was torn and there was no external injury.
65.Before reaching at any conclusion let the relevant sections i.e. 363, 366 and 376 IPC be reproduced, which are as under : Section 363 IPC:
"Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Section 366 IPC:
SC No.81/2011 State v. Wahid 15/25
"Kidnapping, abducting or inducing woman to compel her marriage, etc - Whoever kidnaps or abducts any woman 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, 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, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to find, and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."
Section 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever,
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii)on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant SC No.81/2011 State v. Wahid 16/25 subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution' or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) Commits rape on a woman when she is under twelve years of age; or
(g) Commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection. Explanation 2 "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.]
66.Since present case has been registered on the statement of prosecutrix Ex.PW1/A. In her statement she has stated that on 03.06.2011 at about 3:00 p.m. one Vikar and SC No.81/2011 State v. Wahid 17/25 his wife had come at her house and they requested her to assist them for going to Bhajanpura market and she was permitted by her mother and she took them towards Bhajanpura market and when they were near the Chand Baba Mazar where one white car had been found parked. She has further stated that they directed her to sit inside the car and she set inside the car and found four persons namely accused Wahid, Maksood, Azimuddin and Khalil inside the car. She has further stated that Vikar and his wife also set in the said car and they took her to Aligarh, U.P. and they kept her there in a unknown place in a room and accused Wahid had stayed in that room and remaining five left that room at about 10:00 - 11:00 p.m. on the same day.
67.She has further stated that accused Wahid had compelled her to marry with her again and again and she refused for the same and accused Wahid had confined her in aforesaid room and on 05.06.2011 at about 11:00 p.m. accused Wahid raped her in that room against her will and consent and she was confined by accused Wahid there till 11.06.2011 and during her stay accused Wahid had obtained her signatures on some papers and taken her photographs there.
68.She has further deposed that on 12.06.2011 accused Wahid brought her Delhi by the same car and left her near the Chand Baba Mazar, Bhajanpura, Delhi and at that time, accused Wahid had threatened her to kill her family if her parents not permitted to marry her with him.
69.During perusal of record, it is revealed that prosecutrix did not raise any alarm on SC No.81/2011 State v. Wahid 18/25 any point of time during her entire journey with accused Wahid in a car to Aligarh, U.P. Even, when she was directed by Vikar and his wife to sit in a white colour car, near Chand Baba Mazar, prosecutrix had not raised any alarm for help where there were so many public persons remained present but this prosecutrix does not raise any alarm for her help. Hon'ble Supreme Court in judgment 'Masauddin Ahmed Vs. State of Assam, 2009 (3) JCC 2002' wherein :
"Penal Code, 1860 Sec. 376 - Rape - Consent of prosecutrix - Prosecutrix could not furnish any explanation as to why she did not raised the alarm or why she could not inform anybody in the hotel or while coming from the hotel on next or on the road about the incident The prosecutrix appeeared to be a woman of easy virtue Thus it is a clear case of consent Appellant acquitted of charges."
70.During the perusal of record it is revealed that complainant/prosecutrix had lodged complaint with the police but it do not reveals that prosecutrix had put any struggle or raised any alarm while being taken by accused Wahid along with his associates. Journey of prosecutrix with accused Wahid to Aligarh, U.P. shows that prosecutrix was willing to travel with the accused Wahid and had given her consent. Hon'ble Supreme Court in judgment 'Shyam and another Vs. State of Maharashtra, AIR 1995 Supreme Court 2169", wherein :
"Penal Code (45 of 1860), S. 366 - Abduction - Prosecutrix not putting up struggle or raising alarm while being taken away by accused Prosecutrix appearing to be willing party to go with accused on her own - Culpability of accused not established Conviction set aside."
71.On perusal of record it is further revealed that medical examination of prosecutrix SC No.81/2011 State v. Wahid 19/25 Ex.PW1/B which shows no external marks of injury upon prosecutrix. Hon'ble Allahabad High Court in case titled as 'Gokul Vs. State of U.P., 2003 Cri. L.J. 1100' wherein it has been held that:
"prosecutrix though went to market in the company of other persons returned back with the accused alone. Plea of prosecutrix that accused dragged her, throw her on ground behind bushes and forcibly raped inspite of her resistance. No injury was found on the body of prosecutrix in the medical examination. Prosecutrix was to held to be consenting party."
72.Further on perusal of record it is revealed that Ex.PW6/E certified document pertaining to age proof of victim from the Office of Nagar Nigam, Electrol Roll and affidavit mark PW1/DA shows the age of prosecutrix more than 18 years and prosecution has been failed to produce any principal documents pertaining to the date of birth of prosecutrix.
73.Further, photographs mark 'DC' and 'DD' which were taken at the time of nikah/marriage shows that victim was happy at the time of marriage.
74.Medical evidence of prosecutrix also does not show any physical injury on her person neither on her private part.
75. Hon'ble High Court of Delhi in case titled as 'Chidda Ram Vs. State, 1992 CRI.L.J. 4073' wherein :
SC No.81/2011 State v. Wahid 20/25
"Penal Code (45 of 1860) Ss. 366 376, Rape on minor girl - Proof of age School Certificate not a conclusive evidence and ossification test, not a sure test - No birth certificate filed with the school - Age of prosecutrix revealed from her mother's version to be above 16 years and from the Doctor's opinion below 16 years - Neither direct proof of age produced nor reliable evidence adduced
- Drawing of conclusion that age of prosecutrix was below 16 at the time of commission of offence - Not justified."
A school certificate or an admission form is not a conclusive evidence of age of the prosecutrix. The unproved and unexhibited school certificate cannot be teated as evidence in fact the ossification test is not a sure test as to the age of prosecutrix. It gives only an appropriate age which may vary by two years on either side. The medical opinion that prosecutrix was below 16 years. This fact only gives approximation of the age."
76.Having given careful consideration to the statement of material witness PW1 prosecutrix, it is revealed that this witness has not supported the prosecution case on any count. Otherwise also from the conduct of prosecutrix it appears that prosecutrix was of more than 16 years.
77.Hon'ble Gauhati High Court in case "Mihir Das Vs. State of Tripura, 2006 Cri.L.J. 1500", has held that :
"Indian Penal Code, 1860, Section 366 - Kidnapping - Kidnapping - Proof - Evidence on record showing that victim aged 16 years on her own consent travelling with appellant, her boy friend and cannot be said that it amounts to taking her out keeping of her lawful guardian - Kidnapping can be said to have taken place only when she was detained against her will for purpose of pressurizing her to agree to his proposal of marriage - Victim, nowhere in her statement disclosed that SC No.81/2011 State v. Wahid 21/25 appellant put pressure on her to marry her boy friend - Held, that the appellant cannot be said to be guilty of kidnapping victim and consequently this appeal merits for acceptance - Appeal allowed."
78.Hon'ble High Court of Rajasthan in case "Sukhwant Singh Vs. State of Rajasthan, 2006 (2) Crimes 265," has held that :
"Criminal - Acquittal - Benefit of Doubt - Sections 366 and 376 of Indian Penal Code, 1860 (IPC) - Present appeal filed against order of conviction under Sections 366 and 376 of IPC - Held, testimony of prosecutrix cannot at all be said to be reliable, trust worthy or worthy of credence so as to place reliance - Her testimony did not inspire any confidence - Therefore, it was too difficult to accept truthfulness of version of prosecutrix that any sexual assault as alleged was committed on her - Therefore it must be concluded that prosecutrix in case was one on whose testimony no reliance can be placed There was no evidence either direct or circumstantial which could lend assurance to her testimony - Conduct of prosecutrix reveals that she had gone voluntarily with Appellant - There were no signs of recent inter course, it must be hold that culpability of Appellant did not established - Prosecution was obliged to prove on basis of evidence that there was some such undue force on prosecutrix either to marry Appellant or to have intercourse with him - Prosecution has failed to prove beyond doubt that there was undue force on prosecutrix either to marry Appellant or to have intercourse with him - Conduct of prosecutrix reveals that she voluntarily boarded in truck at her own accord of which Appellant was driver and had also paid amount as against fare - Evidently she planned her departure and had willingly gone away with Appellant in is truck - It further indicates that there was no threat or inducement either in regard to her leaving place or in regarding to accompanying Appellant - Conviction of Appellant under Section 366 IPC also cannot be sustained Appeal allowed and conviction set aside and Appellant acquitted."SC No.81/2011 State v. Wahid 22/25
79.Considering the document of Nagar Nigam Electrol Roll, Aligarh, U.P., affidavit furnished by prosecutrix and accused for marriage in absence of any principal document pertaining to date of birth of victim/prosecutrix it may be presumed that she was more than 18 years of age on the day of incident. In defence evidence, lead by accused Hamid Ali who had been examined as DW1 who was the residence of Aligarh, U.P. states that he was the witness of nikah between accused and prosecutrix performed at Shahjanmal, Aligarh, U.P. Nikah was performed by Qazi and he had seen the victim and Qazi had enquired about the age of victim and victim had disclosed her age as 19 years and further photographs produced by prosecution also reflects that prosecutrix was not under pressure and was appearing happy while signing the document of nikahnama.
80.Since prosecution has been failed to prove the age of prosecutrix below 16 years except her statement there is no evidence which suggest that she was below 16 years on the day of incident. Moreover, aforesaid documents as discussed above are sufficient to come to the conclusion that prosecutrix was more than 18 years on the day of incident. Place of kidnapping as stated by prosecutrix is highly populated area and is through passage and public remains present there at most of the time and further place in Aligarh, U.P. was also highly populated area where prosecutrix could have seek help if she was willing but she did not do so.
81.Since prosecutrix admits that accused Wahid was known to her one and half month prior to November'2011 as he was visiting terms in her gali and she had no SC No.81/2011 State v. Wahid 23/25 relations with him. Prosecutrix further admits photocopy of Nikah agreement dated 05.06.2011 mark 'DA' bears her signature at point A, B and C and it also bears her photograph at encircled portion C. Prosecutrix further admits photocopy of nikahnama mark 'DB' which bears her signature at point A. Prosecutrix admits two photographs mark 'DC' and 'DD' which are depicting her and accused. Prosecutrix further admits that place near Bhajanpura chowk where she was taken by accused is a crowded place and she seated in a car to go to Bhajanpura Market and at that time, she had not raised alarm and prosecutrix further admits that there were red lights in the way to Aligarh from Delhi and she had not raised any alarm at any of red lights. Prosecutrix further admits that she is a permanent resident of Shahjamal, Aligarh, U.P. and there were some other dwelling house adjoining the house where accused had kept her and she had not raised any alarm while living at Aligarh, U.P. Portion DY to DZ of Ex.PW1/C read over to the prosecutrix word by word and she admits contents of aforesaid portion.
82.Since prosecutrix on the day of incident was more than 18 years. In these circumstances her statement is required to be corroborated by medical evidence and medical suggest that hymen torn but there is no external injury or fresh injury. PW5 Dr. Nitasha Gupta in her cross examination admits that hymen torn may be cause by cycling or by playing or by jumping.
83.Further, there is no public witness of pointing out memo Ex.PW2/D and site plan Ex.PW6/B. SC No.81/2011 State v. Wahid 24/25
84.On considering the facts of the present case it has come on record that there were chances for prosecutrix to raise alarm for help but she did not do and remains with the accused. Hence, it cannot be presumed that she had been kidnapped from her lawful guardianship.
85.Accordingly, in the facts and circumstances of the case, arguments and perusal of record, case of prosecution does not inspire the confidence of this court to convict the accused. This court is of the firm opinion that prosecution have been failed to prove the charges under section 363/366/376 IPC against the accused Wahid beyond the reasonable doubt. Accordingly, this court acquit accused Wahid by giving him benefit of doubt.
86.In terms of section 437 A Cr. P.C., accused Wahid is directed to execute bail bond in sum of Rs.25,000/ with one surety in the like amount for the period of six months. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON THIS 23.03.2013 (RAMESH KUMARII) ASJ01/ NORTH - EAST KARKARDOOMA COURTS, DELHI.
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