Delhi District Court
State vs . Naushad. on 30 November, 2007
1
IN THE COURT OF MS. REENA SINGH NAG: ADDL.
DISTRICT & SESSIONS JUDGE: KKD: DELHI
SC No. 526/05
FIR No. 327/05
PS. Shahdara
U/s. 363/376 IPC
State vs. Naushad.
JUDGMENT
1. Prosecution case is that on 25/07/05 vide DD No. 33 B received at PS. Shahdara at 1.28 pm wireless operator informed that prosecutrix (name withheld), aged 13 years, height 3½ feet, shallow complexion, wearing Salwar Kamiz was found missing since 7 am (morning). It was handed over to ASI Braham Prakash for necessary action.
2. On 29/07/05 Md. Shabir came to the PS and got his statement recorded to the effect that his daughter (name withheld) age 14 years, height 3.4" shallow complexion, normal built, round face, wearing salwar kamiz and plastic chappal has went missing since 7 am, morning of 25/07/05 and despite searching she could not be traced out. He expressed doubt on his neighbour Naushad in the matter of enticing his daughter away. Accordingly, FIR was registered and investigation was handed over to ASI Braham Prakash. Wireless message was flashed on 10/08/05, prosecutrix was recovered from the custody of accused Naushad from Metro Station, Shahdara and her custody memo was prepared and statement of prosecutrix U/s. 161 Cr.P.C was recorded.
2Accused Naushad was arrested and they were got medically examined. Blood and semen sample of accused Naushad was taken whereas, vaginal swab of prosecutrix was taken by the doctor. During investigation 3 days PC remand of accused was obtained and prosecutrix was sent to Nari Niketan till 12/08/05. Statement of prosecutrix U/s.164 Cr.P.C was got recorded. After completion of investigation Challan was filed U/s. 363/376 IPC against accused Naushad.
3. After committal accused was charged on 14/02/06 by Ld. ASJ, Sh. V.B.Gupta, as he was then, U/s. 363/366/376 IPC to which accused pleaded not guilty and claimed trial. In support of its case, prosecution has examined following witnesses. PW-1 is Md. Shabir, who has supported the prosecution version and proved carbon copy of FIR as Ex. PW1/A. He also produced School leaving certificate of his daughter vide mark PW1/A as per which, date of birth of his daughter was 24/03/93. PW-2 is prosecutrix, who, inter-alia testified that on 25/07/05 at about 4.5 pm accused Naushad met her near the shop of Shoukut near her house and threatened her to accompany him otherwise, he would kill her and her father and she was forcibly taken to Dehradoon and kept in a room of his friend for 20-25 days during which period also he forcibly raped her several times. From there she was taken to PS. Shahdara by accused Naushad and his maternal uncle and at that time she was threatened that in case she did not give statement favouring the accused then he would kill her and her father as a result she had given a wrong statement that she went with the accused with her consent.
34. Her parents reached at the PS and she was also medically examined and her statement was recorded by the Ld. MM. She proved her statement recorded by Ld. MM as Ex. PW2/A and her recovery memo /custody memo as Ex. PW 2/B. On the aspect of her recovery alongwith accused Naushad at Metro Station, Shahdara, Ld. APP cross examined this witness with the permission of the court and in her cross examination by Ld. APP she admitted that she was recovered from the custody of accused from in front of Metro Station, Shahdara and from there they were taken to PS. Shahdara. She voluntarily stated that maternal uncle of accused was with them at that time. She was subjected to cross-examination at length by Ld. Defence Counsel Sh. N.K.Gupta but she has fully supported the prosecution version regarding her kidnapping and rape by accused.
5. Due to inadvertence PW-2 examined on different dates has been given wrong prosecution witness number as such, after prosecutrix the next witness examined has been numbered as PW6 Ct. Sanjeev Kumar so, there is no witness examined against PW-3, 4 & 5. PW-6 is Ct. Sanjeev Kumar, who had accompanied ASI Braham Prakash in the intervening night of 12-13/08/05, in the investigation of this case and in the company of accused they reached Dehradoon on 13/08/05 at about 8/9 am and went to local Police Station Niranjan Pur and took one local police official with them and went to Jhuggi, Lohia Nagar, where accused Naushad pointed out towards a Jhuggi where he lived with prosecutrix. The pointing out memo is Ex. PW 6/A bearing his signature at point A. IO had 4 also prepared site plan thereafter, they came back to Delhi via PS. Niranjan Pur. PW-7 is ASI Raj Pal who had recorded the FIR and proved the same as Ex. PW1/A. PW-8 is HC Sunita, who was called by the IO on 10/08/05 from CW Cell Seelam Pur, in the night at 10/10.30 pm at Metro Station, Shahdara through DO, where she reached in a Govt. Motor-Cycle alongwith its driver and she was handed over the custody of the prosecutrix and an application for medical examination. Accordingly, prosecutrix was taken to GTB hospital, and got medically examined. This witness handed over MLC, sample Seal, slides of vaginal swab of the prosecutrix to IO which was seized vide Ex. PW-8/A. She also handed over custody of the prosecutrix to ASI Braham Prakash.
6. PW-9 is Smt. Vijay Lakshmi, Principal of MCD, Primary School, Yamuna Vihar, C-6, Morning shift, Delhi, who proved date of birth of prosecutrix as 24/03/93. As per school record prosecutrix was admitted in the school on 15/07/98 and studied there up to 31/03/03 and she identified her initials/signatures on original admission and withdrawal register vide Ex. PW 9/D and school leaving certificate as Ex. PW9/C. She also proved the certificate issued to the police dt. 07/10/05 vide Ex. PW9/A and clarified that wrongly date of birth of prosecutrix was mentioned as 31/03/98 whereas, as per school record it was 24/03/93. PW-10 is Dr. Rajpal, Department of Radiology, GTB Hospital, who had examined the X-ray plate of prosecutrix on 10/08/05 for bony age determination and he opined the bony age of prosecutrix as 13-15 years. He proved his report vide Ex. PW10/A. 5
7. PW-11 is Ld. MM, Sh. Chandra Shekhar, who recorded 164 Cr.P.C statement of prosecutrix and proved the relevant documents as Ex. PW11/A.( Application before Ld. Link MM). Statement of prosecutrix U/s. 164 Cr.P.C was Ex.PW11/B, application for obtaining copy of proceedings moved by IO was Ex.PW11/C. PW-12 is Dr. Rashmi Khatri who examined the prosecutrix on 11/08/05 at GTB, Hospital and testified that on that day about 2 am prosecutrix aged 14 years was brought in casualty by W/HC Sunita with alleged history of gynae check up and patient went with her wish with Naushad 16 years old and stayed with her female relative for one week. She proved MLC of prosecutrix as Ex. PW 12/A. She further stated that on medical check up she found hymn torn and there was no sign of external injury. Vagina was patulous. She also advised X-ray on the patient for her bony age. Vaginal swab of patient was taken and sealed and handed over to W/Ct. She proved the SLR papers with regard to the medical examination of patient as Ex. PW12/B and form for bony-age X-ray as Ex.PW10/A. In her cross-examination she stated that it is not necessary that there was always injuries on external genetalia if intercourse is done forcefully.
8. PW-13 is ASI Braham Prakash, who has investigated the case and endeavored to support the prosecution version and corroborated other witnesses and referred to the documents already exhibited and proved arrest memo of accused as Ex.PW13/A and personal search memo as Ex.PW13/B and seizure of blood sample, semen sample and sample seal of accused Naushad as Ex.PW13/C and 6 application for recording statement of prosecutrix U/s. 164 Cr.P.C as Ex.PW13/D and superdarinama of prosecutrix in favour of her father as Ex.PW13/E and site plan of the place at Dehradoon, where accused had taken them as Ex.PW13/F and FSL report received from Rohini, as Ex.PW13/G.
9. After closure of prosecution evidence, accused was examined U/s. 313 Cr.P.C, wherein he admitted his arrest and recovery of prosecutrix from his custody in response to question no.3. He also admitted regarding his medical examination at GTB, Hospital. As per him prosecutrix was not of age in between 13-15 years and she has given statement U/s. 164 Cr.P.C in his favour before Ld. MM but later on in the court she testified against him due to the threatening or pressure of her parents as she was living with them.
10. He produced his mother Rahisa Khatoon in his defence, who inter-alia testified that she knew Md. Shabir for last 5-6 years and their families were on visiting terms with each other. As per her in January 2005 Md. Shabir demanded Rs. 30,000/- from her which she had given to him but despite assurance he did not return the amount and instead pushed her out from his house when she went there to demand the same, he falsely implicated his son Naushad in this case.
11. I have heard arguments of both the sides and gone through the case file. Ld. Defence Counsel has pleaded for acquittal of the accused on the ground inter-alia that there are discrepancies in the statement of the witnesses as prosecutrix stated that she was brought to Delhi by bus by maternal uncle 7 of accused but other witnesses have stated otherwise, that she was caught with accused at Metro Station, Shahdara; that in the initial DD entry accused is not named; that age of the prosecutrix has not been proved in accordance with law as school teacher has not brought date of birth certificate and bony age of prosecutrix is 13-15 years and it can be read on either side with benefit of 3 years so, she is major if 3 years is added to 15 years and benefit should go to the accused; that in her 164 Cr.P.C statement prosecutrix has testified in favour of the accused; that she is a consenting party.
12. Ld. Defence Counsel Sh. N.K.Gupta has relied upon the various authorities on the point that age of prosecutrix has not been proved in accordance with law and she was about 18 years of age and was a consenting party to the act and no offence as such, has been committed by the accused. The authority relied on is reported in 1985 (2)RCR 452 titled Satwant Singh Vs. State of Haryana in which, it was inter- alia held that date of birth recorded in school leaving certificate or admission form is not conclusive proof of evidence of age. In this case, it is noted in para no. 6 of the judgement that no ossification test was performed on the prosecutrix to determine her age. Another authority relied on is reported in RCR 1986(2) 542 titled Bittu Vs. State of Himachal Pradesh, wherein also, it was emphasised that judicial notes can be taken; that registers of births and deaths maintained by panchayat conveys more reliable date of birth and death and that age of child recorded in school at the time of admission is not reliable. In another authority reported in 1986(2) 142 8 titled Molu Ram Vs. The State of Haryana, it was inter-alia held that entry about date of birth in school record carries no weight and ossification test by doctor is not sure test and it admits margin of two years on either side. In another case titled Jeev Rakhan Vs. State of M.P reported in RCR 2004 (3) Crl. 577, in the given facts and circumstances, where admission form was not produced, Hon'ble High Court of M.P relied on bony-age of prosecutrix as above 16 years as school leaving certificate prepared on the basis of admission form was held to be no primary evidence in the absence of admission form. Admission form was held to be primary evidence. In a case reported in RCR 1989(1) 308 titled Brij Mohan Vs. State by which, Hon'ble High Court through Hon'ble Justice Sh. H.C.Goel in a case of rape, determination of age of prosecutrix by ossification test was held to be not correct and it was observed that there might be margin of 1 ½ to 21 years on either side. In this case age recorded in school record was also not supported by birth register of Municipal Committee as such, the determination of age by ossification test was preferred to other evidence. In this case prosecutrix was opined to be above 16 years but below 18 years of age as per radiological report. Another authority relied on is reported in RCR 1985(1) 354 titled Vas Dev Vs. The state of Haryana, in which ossification test was not conducted and trial court only relied on school leaving certificate, which was held to be not a conclusive piece of evidence by Hon'ble Punjab & Haryana High Court. Similarly in other authority reported in RCR 1983(2) 273 titled Gordhan Vs. The state of Haryana, age recorded in school at the instance of father of prosecutrix 9 was not believed in the absence of any birth entry or other reliable data. In this case, prosecutrix had written a number of love letters to accused and she was a consenting party. The prosecutrix was 15 years of age as per her father but the defence witness i.e medical officer on the basis of X-ray of prosecutrix gave her age as 17 years. Another such authority is reported in RCR 1983(2) 545 titled Om Prakash Vs. The State of Punjab, wherein school leaving certificate was not believed. In this case prosecutrix was not subjected to ossification test. In Gulab Singh Vs. State of Haryana, reported in RCR 1983 (2) 432, doctor gave the bony age of the prosecutrix between 14 ½ & 17 ½ years with a variation of 3 years on either side. Relevant sections under which, accused has been charged reads 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 :-
" Whoever kidnaps of abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any persona 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 10 for a term which may extend to ten years, and shall also be liable to fine; (and whoever, by means of criminal intimidation as defined in this Code or of abused 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 :-
"(1) Whoever, except in the cases provided for by sub-section (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 judgement , impose a sentence of imprisonment for a term of less than seven years. "
(2) xxxxxxxxxxxxxxxxxxx.
13. Let us scrutinise the testimony of prosecutrix in the light of the relevant provisions of law and the circumstances surrounding the case. Prosecutrix went with the accused on 11 27/07/05. She was recovered on 10/08/05. She was brought to GTB Hospital, on 11/08/05 at 2 am and she disclosed to doctor that she went with her own wish with Naushad, aged 16 years her neighbour and stayed with her female relative and Naushad and that she had intercourse with him several time. In her statement before Ld. MM U/s. 164 Cr.P.C on 12/08/05 she stated on oath that she had eloped with accused with her own sweet will and they had sexual relations in a rented accommodation and they had also pledged to marry each other and Naushad and she wanted to marry each other. However, in her testimony before the court she took a somer sault and implicated the accused levelling allegations regarding extending threat while taking her from the custody of her parents and making sexual contracts with her. From the tone tenor of this witness it can be factually inferred that she had on her own gone with the accused and had sexual relationship with him voluntarily, which was disclosed even to doctor, who examined her on 11/08/05 and to Ld. MM on 12/08/05 and her plea later on in the court that she was subjected to threat by accused seems to be an after thought.
14. But the question before the court for adjudication is whether prosecutrix was under the age of 16 years at the time of commission of the offence as that will determine whether accused is liable to be held guilty or not. In this regard I would advert to the testimony of her father Md. Shabir, who gave date of birth of her daughter as 24/03/93, which was mentioned in school leaving certificate. In his cross-
12examination he has stated that he was married about 20 years back and at that time his age was 22 years. He also stated that he has five children and his first child was born after 1½ year of his marriage and 2nd child was born 2 years thereafter, whereas prosecutrix was born about 8 years after his marriage. He has given his age as 42 years on the date of his deposition on 13/04/06. As the date of incident is 25/07/05 and date of birth as per school record is 24/03/05 so, computing the same, the age of prosecutrix at the time of incident was between 12 to 13 years.
15. PW-9 is Smt. Vijay Lakshmi, Principal, MCD Primary School, Yamuna Vihar, C-6, Morning Shift, Delhi, from where prosecutrix studied, brought her original admission and withdrawal register, which she proved as Ex.PW9/D, wherein date of birth of prosecutrix is mentioned as 24/03/93. In her cross-examination she stated that the form was filled up by the father of the girl at the time of her admission and it also contained the affidavit of the father of the girl. She admitted that there was no Municipal Certificate adduced in respect of date of birth of prosecutrix in school record. She produced copy of form as Ex.PW9/DA.
16. PW-10 is Dr. Rajpal, who had conducted the bony age determination by examining X-ray plate of prosecutrix on 10/08/05 as per which, bony age of prosecutrix was above 13 years and below 15 years so, ever if, we conclude from the date of birth 24/03/93 she was aged around 12 years & 4 months. There has been no cross examination of PW-10.
1317. Under these circumstances, the contention of Ld. Defence Counsel that prosecutrix having not produced date of birth from Municipal Record, bony age X-ray of upper limit of 15 years is to be construed favourably by giving benefit of 3 years thereby making her age as 18 years due to which, accused is liable to be given benefit of doubt and should be acquitted, is not tenable in view of the fact that in AIR 2006 SC 1746 in case titled State of Chattisgarh Vs. Lekh Ram, Hon'ble appex Court inter-alia held that it may be true that an entry in the school register is not conclusive but it has evidenciary value and such evidenciary value of school register is corroborated by oral evidence as the same was recorded on the basis of statement of mother of prosecutrix. The court has to base its conclusion while determining the age of the prosecutrix, upon all the facts and circumstances, disclosed on examining all the physical features of the person whose age is in question in conjunction with such oral testimony as may be available, relied Sidheswar Ganguly Vs. State of W.B 1958. CRLJ 273 AIR 1958 HC 143-148.
18. In this case, father of the prosecutrix gave the date of birth of prosecutrix on the basis of affidavit in 1998 at the time of her admission in the school and at that time he had no knowledge that this age would come to his benefit or serve against him. Once this age has been given, this will go with the prosecutrix for future as well, with neutral value. Offence having been committed, the age now assumes importance due to fiction of law and in the given facts and circumstances, where father of the prosecutrix has given in detail the duration 14 of his marriage, the time of birth of his issues and coupled with his claim through affidavit with regard to age of prosecutrix, there can be no hesitation in accepting the age of prosecutrix as under 16 years, more so, when bony age of prosecutrix is in between 13 to 15 years.
19. The authorities relied on by Ld. Defence Counsel with due deference is not applicable to the case in hand, in view of the authority of Hon'ble Supreme Court in the matter and as such, the plea of defence that prosecutrix was above 16 years of age is rejected.
20. Under these circumstances, the plea of defence that prosecutrix went away with accused voluntarily and had sexual relations with him with her sweet will is of no relevance and is relegated to background as in the law accused has committed offence of kidnapping a minor child with a view to have sexual intercourse with her and he accordingly raped her the tender age of prosecutrix with advent of puberty is a factor which has fastened the accused with culpability U/s. 363/366 as well, since wish of the prosecutrix to go with accused is immaterial in view of her tender age and presumption otherwise is that accused enticed prosecutrix away, which has not been rebutted. In such circumstances, it is unlikely that prosecutrix comes out with overt act of enticement attributable to accused when she herself leaves the custody of her parents. Albeit in this case in her deposition before the court prosecutrix has alleged threatening by accused in contradiction to her earlier stand of elopement with accused as taken before police or Magistrate who recorded her 164 Cr.P.C 15 statement. In view of my foregoing discussion so, I hold accused guilty Us. 363/366/376 IPC.
21. As regards defence produced by accused through his mother the same does not make any dent in the prosecution version as the defence of money transaction due to which, father of the prosecutrix falsely implicated accused, appears to be an after thought and cannot be believed when no simultaneous complaint with regard to any such dispute was brought to the notice of any competent authority. It is noted that no civil suit was filed by mother of the accused for recovery of the amount allegedly given to the father of the prosecutrix so, defence is dismissed. Accused is convicted Us. 363/366/376 IPC.
Announced in open Court (REENA SINGH NAG)
Dt: 15.11.07 Addl. Sessions
Judge,
KKD, Delhi
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IN THE COURT OF MS. REENA SINGH NAG: ADDL.
DISTRICT & SESSIONS JUDGE: KKD: DELHI
SC No. 526/05
FIR No. 327/05
PS. Shahdara
U/s. 363/376 IPC
State vs. Naushad.
ORDER ON SENTENCE
I have heard the convict in person , his counsel Sh. N. K. Gupta and ld APP on the quantum of sentence. Convict is aged 21 years and is un married. HE has studied upto 6th class and has roots in society as he has in family mother, 5 brothers and two sisters and youngest is aged 10 years. His father is living separately from the family and as such younger brothers and sisters are maintaining the family, notwithstanding that they are in different age group since mother is doing no work to sustain the family. There is no previous conviction against the convict. He is in JC since 14.8.05. Ld. Defence counsel prays for release of convict on the period already spent by convict in JC by relying on the authorities as under:
1 2003 (2) JCC 984 titled Kishan Pal and another Vs. State by Hon'ble Justice Sh. R.S.Sodhi in a case under section 366 and 376 IPC, one of the appellant was sentenced to RI for 7 years with fine of Rs.2000/- and in default of payment of fine to undergo RI for eight months and under section 366 IPC he was sentenced to undergo RI for 4 years with 17 fine of Rs.1000/-. In default RI for 4 months. This sentence was reduced to period already undergone by the appellant Kishan Pal as he had remained in custody for more than one year on the grounds that appellant was not a previous convict and he wished to assimilate in the main stream of society as useful citizen.
2. 2002 (2) JCC (SC) 712 titled State of Himachal Pradesh Vs. Mango Ram in which accused who was above 10 years and had raped a girl of 13 years and was held guilty was sentenced to the period already undergone by him in JC
3. AIR 1974 SCC 2352 titled Chiranjan Dass Vs. State of UP in which there was a conviction under section 377 IPC which is punishable to life imprisonment and keeping in view the fact that the conviction would result in loss of service and other serious consequences to the career of convict he was sentenced to the period already undergone i.e for about more than 2 months spent in JC Ld. APP on the other hand has argued that deterrent punishment should be awarded in view of the nature of offence. In this case due to legal fiction prosecutrix being minor at the time of commission of offence, conviction has 18 been announced. Otherwise as per the stand of prosecutrix as given to Magistrate under section 164 Cr.P.C or to doctor examining her, she went with accused of her own and she even disclosed age of accused as 16 years to doctor examining her. Whereas accused has given his age as 20 years in statement under section 313 Cr.P.C, he was not a minor at the time of commission of offence. Every case has to be appreciated in the light of its own peculiar facts and circumstances and it is unlikely that two cases are replica of each other in all respect. So far as the nature of custody of accused, he has suffered the period in JC only as an under trial but with conviction, he will be assigned the manual job as per jail rules/punishment, which will serve as a deterrent to indulge in any such venture in future. So the authorities relied on by defence are not squarly applicable to the case herein. In my considered view the under mentioned sentences shall meet the ends of justice:
U/Section 363 IPC RI of 3 years and fine of Rs. 1000/-.
In default of payment of fine he shall further undergo SI for 15 days U/Section 366 IPC RI of 3 years and fine of Rs. 1000/-.
In default of payment of fine he shall further undergo SI for 15 days U/Section 376 IPC RI of 3 years and fine of Rs. 1000/-.
In default of payment of fine he shall further undergo SI for 15 days 19 All the sentences shall run concurrently. Benefit of section 428 Cr.P.C shall be given to the convict as per law.
Although the law provides for not less than 7 years imprisonment under section 376 IPC but for adequate and special reasons court can impose a punishment for a term of less than 7 years. The less punishment is being awarded then the prescribed in view of obtaining facts that the prosecutrix herself had gone away with the accused and had sexual intercourse with him and due to technicality prosecutrix being under the age of 16 years conviction has been announced. Copy of Judgment and order be given to the convict free of costs. File be consigned to record room.
Announced in open Court (REENA SINGH NAG)
Dt: 30.11.07 Addl. Sessions Judge,
KKD, Delhi