Delhi District Court
State vs Suhail S/O Saeed Khan on 15 November, 2016
IN THE COURT OF SHRI SANJAY SHARMAI
ADDL. SESSIONS JUDGE - 01 (NORTHEAST)
KARKARDOOMA COURTS : DELHI
SC No.44445/2015
FIR No.84/2014
PS Gokal Puri
Under Section 363/366/376(2)(n) IPC
& 6 POCSO Act
State Versus Suhail S/o Saeed Khan
R/o Kasba Hardo Gunj, Ward No.8, Mohalla
& PS Hardo Gunj, District Aligarh, UP
Date of institution of case : 19.04.2014
Date on which judgment reserved : 04.11.2016
Date of judgment pronounced : 11.11.2016
J U D G M E N T :
On 20.01.2014, complainant Nasruddin went to PS Gokal Puri
where he met ASI Shiv Shankar and lodged a missing report that on that day,
at about 12.00 noon his daughter, the victim, a minor girl, aged about 15
years had left the house without informing anyone and since then she did not
return back. He suspected that some unknown person might have enticed the
victim and taken her away. The case was registered under Section 363 IPC.
Investigation was carried on. On 23.01.2014, IO/ASI Shiv Shankar recovered
the victim from Dilshad Garden Border and recorded her statement under
Section 161 CrPC. On the basis of her statement, Sections 376 IPC and
Section 6 of the POCSO Act were added in this case. The victim was
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produced before the doctor where she was medically examined. She was also
produced before the Ld. MM where her statement under Section 164 CrPC
was recorded. Subsequently, accused Suhail was arrested in this case.
2. After completion of investigation , the charge sheet was filed
before this Court against accused Suhail for the offences punishable under
Sections 363/376 IPC and 6 POCSO Act.
3. Vide order dated 02.06.2014, on hearing arguments on charge
and considering the material on record, Ld. Predecessor framed a charge
against accused Suhail for the offences punishable under Sections
363/366/376(2)(n) IPC and 6 POCSO Act to which he pleaded not guilty and
claimed trial.
4. In order to establish its case, the prosecution examined twelve
witnesses at the trial:
• PW1 was the victim herself, who deposed about the incident.
• PW2 Ct. Budh Prakash remained associated in the investigation with
IO ASI Shiv Shankar and was a witness to the arrest of the accused.
He had also taken the accused to the hospital for his medical
examination.
• PW3 ASI Braham Singh was the duty officer. He proved the copy of
FIR as Ex.PW3/A and his endorsement on the ruqqa as Ex.PW3/B.
• PW4 HC Vijay Pal was the MHC(M). He deposed regarding
depositing of the exhibits in the malkhana and sending them to the
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FSL, vide DD register No.19 and proved various entries in this respect.
• PW5 Sh. Gajender Singh, Statistical Clerk EDMC, Shahdara (North
East) Delhi, proved the birth certificate of the victim as Ex.PW5/A
and as per the said certificate her date of birth was 22.07.1998.
• PW6 lady Ct. Rajni was a witness to the recovery of the victim and
took the victim to the hospital for her medical examination.
• PW7 Sh. Nasruddin was the father of the victim and complainant of
the case. He deposed about the missing of the victim and lodging of
the missing report by him. However, he was declared hostile by the Ld.
Addl. PP and was crossexamined on some facts.
• PW8 SI Anita was a part IO of this case. She had only filed the charge
sheet before the Court.
• PW9 Dr. Parmeshwar Ram proved the MLC of the accused as
Ex.PW9/A.
• PW10 Dr. Shuchi had medically examined the victim and she proved
her findings vide Ex.PW10/A.
• PW11 Ct. Praveen had collected the exhibits from the MHC(M) and
deposited them with FSL Rohini.
• PW12 ASI Shiv Shankar was the main IO of the case. He deposed
about the investigation conducted by him and proved various
documents prepared/collected by him during investigation.
SC No.44445/2015 FIR No. 84/2014 PS Gokal Puri page 3 of 16
5. Statement of the accused was recorded under Section 313 CrPC
wherein the entire incriminating evidence was put to him which he denied
and pleaded his innocence. He took the defence that the victim was in love
with him; they both had outings several times and the sexual intercourse was
performed with the victim with her consent and that he never kidnapped the
victim but she accompanied him with her own consent.
6. I have heard Shri Sukhbeer Singh Ld. Addl. PP for the State,
Shri Abdul Salam Ld. Counsel for the accused and gone through the
records.
7. The present case rests on the sole testimony of the victim
herself. Her father/PW7 only deposed about the lodging of the missing report
and also about her recovery after 34 days. He had not deposed anything
about the role of the accused. The other witnesses examined by the
prosecution were only formal witnesses and remained associated in the
investigation . Thus, the facts and circumstances of the case have only been
deposed by the victim.
8. The victim went missing from her house on 20.1.2014 and was
recovered on 23/1/2014. On the same day, her statement U/S 161 Cr. PC was
recorded by the IO, wherein she stated that she was a student of Class IX and
that she developed friendship with the accused while frequenting her native
Village Noorpur by bus on which the accused was working as a conductor.
She stated that he used to talk to her on phone and the accused used to take
her out for site seeing. She also stated that one day, the accused took her to a
hotel, whose name and address was not known to her, where the accused
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made physical relations with her twice. On the same day, she was beaten by
her brother when she returned back home late and as such, on 20.1.2014 she
went away from her house without informing anyone with the accused to
Rampur where she stayed with him for 23 days in a hotel where the accused
made physical relations with her. Later the accused left her at her native
village Noorpur from where she returned back by bus. This submission in
itself shows that the victim was having an affair with the accused and was
going out with him and also talking to him on phone. According to her, the
accused made physical relations with her at Delhi and then at Rampur in
different hotels, apparently with her consent.
9. In her statement recorded U/S 164 Cr. PC, the victim again
reiterated that she had gone alongwith the accused with her consent and that
she had called her at Dilshad Garden from where they went to zoo, Old Fort
etc. Thereafter, the accused took her to a hotel from where she made her talk
to his sister on phone. She further stated that the accused then took her to
Rampur where the accused booked a hotel and then did zabardasti with her.
She deposed that she was receiving phone calls from her house but the
accused asked her to switch off the phone. She further stated that she had
brought Rs.2700/ from her house which were taken by the accused and they
stayed at Rampur for 23 days and that on her asking the accused dropped her
at Village Noorpur and gave Rs.300/ to her for the fare. She stated that
thereafter she returned back to Delhi by bus.
10. It is again clear from this statement of the victim that she had
gone alongwith the accused with her consent and stayed with her in the hotel
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at Rampur. Even if her statement to the effect that the accused had done
zabardasti with her, is taken to be sexual intercourse, it is clear that it was
with her consent.
11. The victim was examined in the Court as PW1. Here again , she
deposed that she used to visit her native Village Noorpur, near Chandpur,
District Bijnore, UP, where she met the accused and became friendly with
him while going to her native village in a bus on which he was working as a
conductor. She further deposed that about six months ago, on the 15th day of
a month , she received a call from the accused on her mobile phone who
asked her to reach Dilshad Garden Metro Station on which she went there
and accused then took her to Red Fort, Zoological Garden etc. and then
dropped her at her house. Similarly, on the next Sunday, the accused again
took her to Dilshad Garden Metro Station and then dropped her at her house.
She further deposed that on the next day, her mother and sister had gone to
Mumbai and she again received a call from the accused whom she informed
about her mother and sister having gone to Mumbai on which the accused
forced her to come but she refused. She deposed that the accused again
called her and threatened to commit suicide if she did not come. Hence, she
reached at Dilshad Garden Metro Station without informing her family
members and the accused took her to Rampur where they stayed for 24 days
and visited a number of places and then accused dropped her at her native
Village Noorpur and also gave Rs.300/ to her. On the next day, she boarded
a bus for Seemapuri and the accused made a call to her inquiring about her
position which she informed. Meanwhile, she received a call from her father
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but she disconnected it.
12. With the permission of the Court, Ld. Addl. PP for the State put
certain leading question to the victim and during that examination she
admitted that the accused had brought her to a hotel from where he made her
speak his sister on phone. She admitted that the accused took her on
20.1.2014 to Rampur and during their stay at a hotel, her family members had
called her but the accused asked her to switch off the phone. She further
admitted that she had taken Rs.2700/ from her house when the accused had
called her at the Dilshad Garden Metro Station . She also admitted that the
accused had forcibly made sexual relations with her but explained that she
stated such fact to the IO wrongly and in haste. She admitted that the accused
never sought permission from her parents to call her or to take to various
places and that she left her house under emotional pressure from the accused
as he threatened to commit suicide. She also admitted that the accused used
to drop her at some distance from her house whenever she used to go with
him. Later, she denied that the accused had made physical relations with her
forcibly or that she was willingly concealing the fact of sexual intercourse by
the accused with her.
13. The victim was crossexamined at length wherein she admitted
that she had accompanied the accused on 45 occasions for siteseeing out of
friendship and without any fear or coercion and that she had accompanied
the accused on her own and not under any threat when her parents went to
Mumbai. She further deposed that immediately before going to Rampur, her
brother had beaten her and out of desperation , she called the accused and
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asked him if she could go alongwith him for 23 days to which he agreed and
suggested her to go to Rampur, i.e. his native village where also she was not
under any threat or coercion . She further deposed that during her stay at
Rampur in the hotel, the accused did not extend any threat or any injury or
gave beatings to her but at that place, he forcibly committed sexual
intercourse with her. On being questioned that whether she asked for any
help at the hotel, she replied that she was helpless as the accused had taken
her phone and further that accused had threatened to kill her brother. She
also deposed that the accused also committed sexual intercourse with her for
67 times. She also deposed that the accused had asked her to bring clothes
and money and then denied that she had consented for the sexual intercourse
with the accused at the hotel at Rampur.
14. The above deposition of the victim shows that she had been
changing stance. Though she maintained about her affair with the accused
and the fact that she had willingly gone with the accused for siteseeing and
then to Rampur, but as regards the sexual intercourse, firstly she deposed that
it was done with her consent but later in the crossexamination she changed
and deposed that it was done forcibly. In her examinationinchief, she had
not deposed anything about the sexual relations with the accused but it was
only when she was examined by the Ld. Addl. PP for the State with the
permission of the Court and leading questions were put to her, then she
admitted this fact. In any case, a close scrutiny of her testimony and her
previous statement recorded U/S 161 Cr. PC and U/S 164 Cr. PC would show
that she had always gone with the accused with her consent either at Delhi or
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to Rampur and had stayed with him in the hotel again with her consent. It is
also clear that despite her refusal or changing her stance, it is abundantly
clear that sexual intercourse was committed by the accused with her consent.
Thus, she was a consenting party throughout.
15. Once this fact has come on record that the victim was a
consenting party, her age assumes importance. During the course of
investigation , her birth certificate was collected and place on record which
has been proved by PW5 Shri Gajender Singh from the Office of EDMC,
Shahdara (NorthEast), Delhi. The said certificate is Ex.PW5/A and
according to it, her date of birth is 22.7.1998. Neither the said certificate nor
the date of birth mentioned thereupon has been disputed in any manner
whatsoever by the accused. The testimony of this witness could also not be
impeached. It is nowhere the case of the accused that the victim was above
18 years of age as on the date when she went with the accused, i.e. 20.1.2014.
No suggestion to this effect was ever given to the victim or to any other
witness. As per the date of birth mentioned on the said certificate
Ex.PW5/A, she was about 15½ years of age when she went with the accused
and was thus, a minor within the meaning of Section 361 IPC. She was not
capable of giving any consent for sexual intercourse, as per the
circumstances mentioned Sixthly in Section 375 IPC which has raised the
age of consent to 18 years by virtue of the Criminal Law (Amendment) Act
13 of 2013.
16. Ld. Counsel for the accused relied upon a judgment delivered in
Kuldeep K . Mahato Vs. State of Bihar, 1998 (2) JCC (SC) 70. In the said
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case, after evaluating the evidence, the Hon'ble Apex Court reached to a
conclusion that the victim was a consenting party to the intercourse and was
below 18 years and acquitted the appellant. It may be reminded that the said
judgment was passed on the basis of the law which existed prior to 2013,
wherein the age of consent for sexual intercourse was 16 years which has
now been raised to 18 years by the Act 13 of 2013. Hence, the said judgment
is of no help to the accused.
17. Ld. Counsel further relied upon the judgment of Dewan Singh
Vs. the State 1998(2) JCC (Delhi) 122 , wherein the age of the prosecutrix on
the basis of the Radiologist's report was found to be above 15 years but below
16 years, with two years margin on either side. The benefit of the margin was
extended to the accused and it was held that she was deemed to be above 16
years and her consent could be easily presumed. The benefit was extended to
the accused of the said consent and he was acquitted under Section 376 IPC,
but as she was not above 18 years, the accused was convicted under Section
363/366 IPC. Again , this judgment is of no help to the accused as it was
passed on the basis of the previous law as stated herein above or as stood
before amendment, as mentioned above.
18. Ld. Counsel next relied upon the judgment passed in Samey
Singh Vs. State II (1998) CCR 158 Delhi. In that case, the victim was a child
of about six years and it was held that child witnesses are prone to tutoring
and Court should look for corroboration when evidence betrays traces of
tutoring. This judgment is also of no help to the accused as the victim in the
present case is above 15 years of age and there had been no defence raised by
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the accused that she was ever tutored.
19. It is also to be noted that the victim had repeatedly stated in her
statement U/S 164 Cr. PC as also in her deposition before the Court that the
accused had forced her to come with her under threat of committing suicide
which would amount to enticing or compelling the victim to leave her
parental protection . At that time, the accused very well knew that the mother
and sister of the victim were not present and she was alone and as such, he
forced the victim to come out of the house. Admittedly, the victim was under
18 years of age and therefore, was not legally competent to give consent.
20. In Prakash Vs. State of Haryana AIR 2004 SC 227 , it was
observed while commenting on Section 361 IPC that "the gravemen 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 said guardian". It was further held that "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. Persuasion 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 this Section".
21. In view of the said judgment, assertion by Ld. Defence Counsel,
while referring to the crossexamination of the victim that there was no fear,
force or compulsion when she went with the accused either to a place in
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Delhi or Rampur, is not sufficient to take the case out of the purview of
Section 363 IPC or Section 366 IPC.
22. It was argued by Ld. Counsel for the accused that the hotel at
Rampur where the accused is alleged to have committed rape with the victim
could never be located during the entire investigation nor the record of said
hotel could be seized. In my opinion , this circumstance is totally irrelevant
and devoid of any merits as the victim has categorically deposed about the
sexual intercourse with her and thereafter the accused also admitted this fact
in his examination under Section 313 Cr. PC.
23. It was argued by the Ld. Counsel for the accused that the FSL
result is negative and is in favour of the accused. He submitted that no
seminal stains were found in the samples taken from the victim. In my
opinion, the FSL result in this case is of no use as it was observed by the
doctor, PW10 who took the samples that the victim had taken bath, changed
her clothes, defecated and urinated before she arrived in the hospital for
sampling. The victim was recovered on 23.01.2014 and she was taken for the
medical examination on the same day. Hence, there was no possibility of any
semen stains having been found on any of her samples, collected during her
medical examination and hence no reliance can be placed on the FSL result.
24. Thus, in view of the fact that the victim has been proved on
record to be below 18 years of age, any amount of her consent would not give
any benefit to the accused and accordingly, it is held that the accused enticed
and took away the victim out of the lawful guardianship of her parents with
the knowledge and intention that she would be seduced to illicit intercourse.
SC No.44445/2015 FIR No. 84/2014 PS Gokal Puri page 12 of 16
He, thus, committed the offence punishable under Section 363 IPC and
Section 366 IPC. He thereafter committed sexual intercourse with her at
Rampur repeatedly, which would amount to rape under Section 375(2)(n)
IPC, as also offence under Section 6 of the POCSO Act.
25. According to Section 42 of the POCSO Act, after the accused is
found guilty of any offence punishable under any other law in force, he shall
be liable to punishment only under such law or this Act that provides for
punishment which is greater in degree. The accused has been charged with
the offence punishable under Section 376(2)(n) IPC which provides Rigorous
imprisonment not less than 10 years but which may extend to life which shall
mean punishment for the remainder of that person's natural life and shall also
be liable to fine.
26. Section 6 of the POCSO Act provides punishment to Rigorous
imprisonment which shall not be less than 10 years but which may extend to
imprisonment for life and shall also be liable to fine. Hence, both the
provisions provide for identical punishment. However, considering the
Explanation given to the life imprisonment in Section 376 IPC which is
graver, the accused is held guilty and convicted for the offence punishable
under Section 376(2)(n) IPC as well as under Section 363/366 IPC. Let he
be heard on sentence.
PRONOUNCED IN OPEN COURT
ON 11th day of November 2016
(Sanjay SharmaI)
Addl. Sessions Judge01 (NE)
Karkardooma Courts, Delhi
SC No.44445/2015 FIR No. 84/2014 PS Gokal Puri page 13 of 16
IN THE COURT OF SHRI SANJAY SHARMA:
ADDL. SESSIONS JUDGE - 01 (NORTHEAST) :
KARKARDOOMA COURTS : DELHI
SC No.44445/2015
FIR No.84/2014
PS Gokal Puri
Under Section 363/366/376(2)(n) IPC
State Versus
Suhail S/o Saeed Khan
R/o Kasba Hardo Gunj, Ward No.8, Mohalla
& PS Hardo Gunj, District Aligarh, UP
ORDER ON QUANTUM OF SENTENCE :
1.Vide judgment dated 11.11.2016, accused Suhail was convicted for the offences punishable under Section 363/366 IPC and 376(2)(n) IPC.
2. I have heard Ld. Addl. PP for the State and Shri Mohd. Salam - Advocate for the convict on the point of sentence.
3. Ld. Counsel for the convict submitted that convict is a young boy aged about 23 years and is still unmarried. It was submitted that he has a widowed mother, four unmarried sisters and a brother who is already married and having his family and therefore, he has to look after the needs of his mother and sisters. It was further submitted that the accused is doing a petty job of polishing locks in a factory at Aligarh and is earning about Rs.10,000 12,000/ per month . It was also submitted that convict has clean antecedents and is not a previous convict, not involved in any other criminal case. Convict is also stated to be a first time offender. It was further submitted that confining him to imprisonment may ruin his dependents and he has thus, prayed for a lenient view.
SC No.44445/2015 FIR No. 84/2014 PS Gokal Puri page 14 of 16
4. On the other hand, Ld. Addl. PP submitted that convict was involved in a heinous crime against a minor girl of about 15 years and therefore, he deserves no mercy and should be awarded maximum punishment so that a message should passed to the society and act as a deterrent.
5. I have considered the mitigating and the aggravating circumstances as presented before me.
6. No doubt that the convict is a young man and that the victim was also having a likening for him and both were having an affair. It is also an undisputed fact that the victim had eloped with the convict and made physical relations with him with her consent. However, since she was a minor, therefore, her consent is meaningless. Even if both were having an affair, they should have acted with restraint and should have waited till the victim attained majority. The heat of the youth and anxiety as well as the haste to achieve the ultimate at the earliest has brought the convict to this stage and therefore, he has to bear the consequences.
7. Considering the above submissions and balancing the two sides, this Court is of the view that the convict be sentenced as under :
Convict is sentenced to undergo Rigorous Imprisonment for a period of seven years and a fine of Rs.2000/ for the offence under Section 363 IPC, failing which he shall further undergo SI for a period of 15 days.
He is further sentenced to undergo Rigorous Imprisonment for a period of seven years and a fine of Rs.2000/ for the offence under Section 366 IPC, failing which he shall further undergo SI for a period of 15 days.
He is further sentenced to undergo Rigorous Imprisonment for a SC No.44445/2015 FIR No. 84/2014 PS Gokal Puri page 15 of 16 period of ten years and a fine of Rs.5000/ for the offence under Section 376(2)(n) IPC, failing which he shall further undergo SI for a period of one month .
8. As per record, the convict was arrested on 28.1.2014 and was released on bail on 10.10.2014. Thus, he has already remained in custody for a period of about 8 months and 13 days. Accordingly, benefit of Section 428 Cr.PC be extended to the convict.
All the sentences shall run concurrently.
The victim of this case has already received an interim compensation of Rs.40,000/ vide order dt. 29.4.2015.
10. As already observed above, the convict is a poor person . He submits that because of his meagre income and a large family to support, he is unable to pay any compensation to the victim. Hence, as per the provisions of Section 357A of the Cr. PC, recommendations are made to Delhi Legal Services Authority to pay a suitable compensation to the victim under the Victim Compensation Scheme. A copy of this order be sent to the Ld. Secretary, Delhi Legal Services Authority, North East District, Karkardooma Courts, Delhi for compliance.
Let a copy of this order alongwith the copy of judgment be given free of cost to the convict. File be consigned to the Record Room after completion of due formalities.
ANNOUNCED IN OPEN COURT ON 15th day of November 2016 (Sanjay SharmaI) Addl. Sessions Judge01 (NE) Karkardooma Courts, Delhi SC No.44445/2015 FIR No. 84/2014 PS Gokal Puri page 16 of 16