Delhi District Court
Proof Of The Date Of Birth Of The Victim. ... vs . State 2004 (1) on 19 August, 2016
IN THE COURT OF SHRI SANJAY SHARMAI
ADDL. SESSIONS JUDGE - 01 (NORTHEAST)
KARKARDOOMA COURTS : DELHI
SC No. 44927/2015
FIR No. 172/2014
PS Sonia Vihar
Under Section 363/366 IPC,
Section 6 POCSO Act and Section 376(2)(n) IPC
120B IPC, Section 17 r/w 6 POCSO Act and
Section 6 POCSO Act
State Versus
1). Yakub S/o Kadir Saifi
R/o Village Ujhari, District Amroha (UP)
2). Yaseen S/o Badlu Saifi
R/o Mohalla Katra , Town Dhanera
District Amroha (UP)
Date of institution of case : 17.6.2014
Date on which judgment reserved : 16.8.2016
Date of judgment pronounced : 19.8.2016
J U D G M E N T :
On 20.4.2014, complainant Dafedar Singh lodged a missing
complaint at PS Sonia Vihar regarding her minor daughter - aged about 16
years who was missing from her house since the night of 19/20.4.2014. His
statement was recorded and on its basis, present FIR was registered for the
offence under Section 363 IPC. ASI Subhash Chand conducted investigation
and flashed the messages. Subsequently, complainant informed the IO that
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he found an Icard of one Yakub in the book of the victim and raised
suspicion upon him. IO made inquiries from the native village of said Yakub
and it was revealed that Yakub came there with one girl but went away
without staying there.
Further investigation was marked to SI Arvind who made efforts to
search for the victim and the accused and during the investigation they both
were found in the house of one Jafar at Mohalla Sarai Rafi, Chandpur, PS
Dhanhora, District Amroha (UP). Said Jafar Ali disclosed that coaccused
Yaseen introduced Yakub and the victim as his son in law and daughter
respectively and took a room on rent on this pretext after changing the name
of the victim. Accused Yakub disclosed that he made physical relations with
the victim many times and he pointed out the said place at Muradabad, UP.
Victim gave a written complaint to the IO on the basis of which
accused Yakub and Yaseen were arrested in this case. Victim was got
medically examined and she further pointed out the place, i.e. Baba Lodge, at
Allahabad, UP, where accused Yakub took her and they stayed there from
29.4.2014to 09/10.5.2014.
2. After completion of investigation, charge sheet was filed against the accused persons for the offences punishable under Section 363/366/368/376/120B IPC and Section 4/6/17 of the POCSO Act. Copies of the charge sheet were supplied to the accused.
3. After hearing arguments, charge for the offences punishable under Section 363/366 IPC, Section 6 of the POCSO Act and alternatively under Section 376(2)(n) IPC was framed against accused Yakub and against SC No. 44927/2015 FIR No.172/2014 PS Sonia Vihar 2 of 13 both the accused for the offences punishable under Section 120B IPC, Section 17 r/w Section 6 of the POCSO Act and alternatively under Section 109 IPC r/w Section 376(2)(n) IPC and Section 6 of the POCSO Act was framed against both the accused, vide order dt. 21.7.2014. Both the accused pleaded not guilty and claimed trial.
4. The prosecution examined 18 witnesses in all to substantiate the charges.
PW1 was the victim who deposed about the incident.
PW2 Dafedar Singh was her father and complainant of this case. PW3 lady Ct. Himani got the victim medically examined at GTB Hospital.
PW4 Zafar Ali was the landlord where accused Yakub and the victim resided as tenant after they were introduced by coaccused Yaseen and they both were apprehended from there.
PW5 Ct. Joginder deposited the exhibits of this case at FSL, Rohini. PW6 Ct. Rajesh Kumar got accused Yakub medically examined at GTB Hospital.
PW7 Dr. Manish Chhabra proved the MLC of the victim dt. 22.5.2014. PW8 SI Rekha Yadav of PS Chandpur, District Bijnore, was a witness to the recovery of the victim alongwith accused from the house of Zafar Ali.
PW9 Shri Ravi Kant Rai - TGT from the school of the victim proved her school admission record.
PW10 HC Babinder Singh was the MHC(M) who proved entries in Register No. 19.
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PW11 Ct. Ajay and PW12 Ct. Ziley Singh joined investigation with the IO on 21.5.2014 and witnessed the arrest of both the accused.
PW13 Dr. Sneha Shree proved the MLC of the victim dt. 23.5.2014 and her emergency registration card.
PW14 Sufiyan Khan was the Manager of Baba Lodge at Allahabad where the victim and accused Yakub allegedly stayed.
PW15 Shri Dhanpat - Record Keeper from the Office of Registrar, Birth & Deaths, testified that no entry regarding birth of the victim was found existing in their record.
PW16 SI Subhash Chand initially conducted investigation of this case. PW17 ASI Sunita was a formal witness who went to the house of the victim on 22.5.2014 on the instructions of IO/SI Arvind.
PW18 SI Arvind Kumar was the IO and he conducted investigation of this case and proved the relevant documents in that regard.
5. Statement of both the accused were recorded separately U/S 313 Cr. PC and all the incriminating evidence was put to them which they denied and claimed that they have been falsely implicated in this case. They declined to lead evidence in their defence while denying the allegations. They took the defence that the victim was more than 18 years of age at the time of incident and she loved accused Yakub and had accompanied her of her own free will as her father wanted to marry her with someone else and they both got married.
6. I have heard Ld. Addl. PP for the State, Shri Sarfraz Asif - Advocate for both the accused and have carefully gone through the records.
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7. It is not disputed that the victim and the accused were recovered from Chandpur, District Bijnore, UP, where they were residing together in a rented house which was arranged by coaccused Yaseen . PW2, the father of the victim, had deposed about the missing of the victim, registration of the case on his complaint and also the factum of recovery of the victim and the accused from the said place. These very facts have also been deposed by the police witnesses examined by the prosecution . However, the question as to how and why the victim went alongwith accused Yakub and what happened with her could have been answered only by the victim. Her initial statement was recorded at the time of her recovery.
8. In her first statement dt. 22.5.2014 recorded U/S 161 Cr. PC, she stated that she was known to the accused for the past about one year before leaving her house and had been constantly talking with him. She stated that on 19.4.2014, she had a conversation with accused Yakub on phone and she called him at Sonia Vihar at about 10.00 pm, they met, talked to each other and then Yakub took her to Maujpur at the house of his maternal uncle and thereafter to Moradabad, UP, where he kept her for eight days in vacant govt. flats. She further stated that thereafter the said accused took her to Allahabad where he entered into marriage/nikah with the victim at a mosque and then kept her in Baba Lodge, near Railway Station , Allahabad, UP, as his legally wedded wife and had physical sexual relations with her. Thereafter, accused Yakub took her to 23 different places at the houses of his relatives and then with the help of coaccused Yaseen he took a room on rent at Chandpur. The said room was arranged by accused Yaseen on the false pretext that the SC No. 44927/2015 FIR No.172/2014 PS Sonia Vihar 5 of 13 victim was his daughter and Yakub was his soninlaw. On 22.5.2014, they were recovered by the police from the said room.
9. The statement of the victim was recorded U/S 164 Cr. PC, on 23.5.2014 i.e. a day after her recovery which is Ex.PW1/A. In the said statement, she stated that she was having a love affair with accused Yakub about 1½ years before the said date. She further stated that when her phone, which was given by accused Yakub was caught by her father, he asked her to arrange a meeting with the said accused and she accordingly arranged the meeting but her father refused for their marriage as he wanted her to be married elsewhere. She further stated that for this reason she called Yakub on phone on 19.4.2014 and asked him to reach at Khajuri red light from where she eloped with him with her consent and own will. She further stated that they went to Allahabad and Moradabad and remained together for one month and during this period whatever happened was with her consent for which the accused was not responsible. Lastly, she stated that now she wanted to go alongwith her father and left Yakub and that her father should not pressurize her for marriage.
10. The victim was examined as PW1 in the Court on 19.8.2014, i.e. after about three months of her recovery. She made almost similar deposition in the Court as to what she stated in her statement Ex.PW1/A . She deposed that she had been talking to the accused for more than one year and used to call him from her side. On 19.4.2014, she called accused Yakub at red light Khajuri, at 10.00 pm. They both met there and went to Anand Vihar from where they went to Moradabad where the accused kept her in SC No. 44927/2015 FIR No.172/2014 PS Sonia Vihar 6 of 13 flats at Harthala for about eight days and then brought her to Allahabad where he kept her at Baba Lodge, near Railway Station . Some of the friends of the said accused were also staying there. On 22.4.2014, accused Yakub performed nikah with her in a mosque at Allahabad and after marriage they came to Moradabad and again went to Allahabad where she stayed with Yakub as his wife and where accused performed physical relations with her with her consent. She further deposed that Yakub took her to the house of his relatives at 23 places and then finally brought her to Chandpur where he obtained a room on rent through coaccused Yaseen where they stayed till 22.5.2014 when they were apprehended by the police.
11. The victim was declared hostile by the prosecution and was crossexamined by the Ld. Addl. PP for State. In the said crossexamination , she denied that the accused had taken her by enticing her on the pretext of marrying her or under a false assurance that he would provide better life to her as he was having a Santro car and lot of money. She further denied that at Allahabad, an advocate had refused to arrange their marriage as she was a minor. She was duly confronted with these facts with her previous statement recorded U/S 161 Cr. PC Ex.PW1/B but she disowned part of the said statement. However, she admitted that her nikah was performed with accused Yakub and her name was changed to Mumtaz. She further admitted that in her school records, her date of birth is entered as 05.1.1999 and the same date of birth finds mentioned in her birth certificate issued by the MCD but volunteered that the said certificate was prepared in the year 2005. She denied that it was a correct date of birth as mentioned in the said two SC No. 44927/2015 FIR No.172/2014 PS Sonia Vihar 7 of 13 documents.
12. The victim was crossexamined on behalf of the accused persons as well. In the said crossexamination , she deposed that her correct date of birth was 05.2.1996 and her birth certificate was prepared by showing a lower date of birth and that she used to celebrate her birthday on 05th of February. She was confronted with the copy of an Icard issued by National Institute of Open Schooling (Ex.PW1/DX1) and she admitted that it was the copy of her Icard whereupon her date of birth was mentioned as 05.2.1996 and further deposed that she had appeared in the examination conducted by the said Institute in the year 2012. She further deposed that the date of birth in the said Institute was given by her father.
13. The victim was further confronted with the nikahnama Ex.PW1/DX2, which she again admitted to be of her nikah with accused Yakub and where her name has been written as Mumtaz and she identified her signatures at point A on it. She deposed that she changed her name and religion voluntarily for the purposes of said nikah and in the said document, her age is mentioned as 19 years. She admitted that her parents wanted her to be married to someone else but she was not interested in the said marriage and therefore, had left her house with Yakub as she was in love with him. She deposed that she had gone with accused Yakub with her free will and that her marriage with him was still subsisting and wanted to continue with the marriage and was also willing to stay with accused Yakub after this case. She also deposed that accused Yaseen had made arrangements for the room on their request and he had no role to play in her going with Yakub and that SC No. 44927/2015 FIR No.172/2014 PS Sonia Vihar 8 of 13 Yaseen was told by her and Yakub that they were married.
14. The deposition of the victim as well as her statement U/S 164 Cr. PC Ex.PW1/A as demonstrated above, clearly exonerates both the accused. It is clear from her deposition that she was in love with accused Yakub and had eloped with him with her free consent. There is no doubt from her testimony that she not only entered into marriage with accused Yakub by voluntarily changing her name and religion but also cohabited with him with her consent.
Once it becomes abundantly clear that the victim was a consenting party since the very inception , her age assumes great importance.
15. At the time of lodging of the FIR, complainant/PW2 mentioned her age to be 16 years. In support of the date of birth of the victim, her school records were produced. The school records Ex.PW9/A , PW9/B and PW9/C mention her date of birth as 05.1.1999. She was admitted in the said school in Class 6 on 20.4.2009 and her date of birth in the said school was entered on the basis of school leaving certificate issued by the school previously attended by her. The said school leaving certificate has not been proved on record. However, its copy is available which also mentions her date of birth as 05.1.1999 but there is nothing on record to show as to how that date of birth has been entered on the said school leaving certificate or what is the basis on which the said date of birth was entered in the previous school record including the school leaving certificate.
16. The school leaving certificate or transfer certificate cannot be a SC No. 44927/2015 FIR No.172/2014 PS Sonia Vihar 9 of 13 proof of the date of birth of the victim. In Rakesh Kumar Vs. State 2004 (1) JCC 110 Delhi, under similar situation , it was held by the Hon'ble High Court that "transfer certificate does not indicate who got her admitted initially and on what basis the date of birth was recorded as 01.3.1975. No birth certificate has been produced on record. In absence of birth certificate and other reliable material regarding the date of birth , it cannot be said with certainty that the date of birth of Poonam 01.3.1975 as given in the school certificate is her correct date of birth . It is a matter of common knowledge that at the time of admission in the schools the parents generally tend to get the age of their ward recorded on the lower side so that they do not become over aged while searching job and they remain in service for longer period".
17. Similarly, in Harpal Vs. State of Haryana 2004 (1) RCR (Cri.) 480, the school leaving certificate was not believed in the absence of any other evidence, such as register of the village chowkidar etc. for proving the age of the victim.
18. In the instant case, apart from the above school record, the prosecution also relied upon birth certificate of the victim issued by the MCD, copy of which was placed on record alongwith her school records and marked as Ex.PW9/F. However, the said certificate was found to be forged and fabricated. PW15 from the office of the Registrar, Births & Deaths, who was summoned to produce the original of the said certificate, deposed that upon checking the entire record as well as the MCD website, no such entry SC No. 44927/2015 FIR No.172/2014 PS Sonia Vihar 10 of 13 was found to be existing in their records pertaining to the birth of the victim with her parentage and infact, the registration number mentioned on the said certificate, i.e. No. 3951, was in respect of the birth of a female child born to some other couple and resident of Azadpur, Lal Bagh Delhi and which was registered on 03.12.1999. Hence, no reliance can be placed on the alleged birth certificate of the victim which is a forged document.
19. The father of the victim, i.e. PW2, deposed incorrect facts regarding the school where the victim studied before being admitted to the school of PW9. In the crossexamination he deposed that the victim had initially studied in a private school namely V.P. Memorial Public School where she studied upto Class 5 and then was admitted in Class 6 in Govt. Girls Sr. Sec. School, Sonia Vihar, Delhi (of PW9). He further deposed that he did not obtain any transfer certificate from the said school and the authorities of the said private school themselves got the victim admitted to the said govt. school. He could not remember if he had given any affidavit regarding the age of the victim in the latter school nor could remember if he ever got issued any birth certificate of the victim in the year 2005. He, however, admitted the photograph of her daughter in Ex.PW1/DX1. As per record, the victim had previously studied in Nagar Nigam Prathmik Vidhyalaya - Sonia Vihar, Delhi till Class 5 and that school had issued the school leaving certificate on the basis of which she was admitted in Class 6 in the next school. Hence, PW2 had made false deposition in this respect.
20. On the contrary, the victim herself deposed her date of birth to be 05.2.1996 and admitted the copy of her identity card issued by National SC No. 44927/2015 FIR No.172/2014 PS Sonia Vihar 11 of 13 Institute of Open Schooling whereupon her date of birth is mentioned as 05.2.1996 and according to her unrebutted testimony, this very date of birth was got entered by her father.
21. In view of the entirety of the facts and evidence, as discussed above, there is no hesitation to hold that the prosecution has failed to prove that the victim was below 18 years of age when she eloped with accused Yakub . On the contrary, the document admitted by the victim shows her to be above 18 years of age, as on that date when she went with accused Yakub , which means that she was major and was competent to give consent. As already discussed above, she had been a consenting party throughout and when she had already attained the age of majority and was legally competent to give consent, no offence is made out against either of the accused.
22. Accused Yaseen has been charged for the offences with the aid of Section 120B IPC, with the allegations that he entered into conspiracy with accused Yakub and had facilitated sexual intercourse by the said accused with the victim. However, there is not an iota of evidence to hold that any conspiracy was hatched between the two accused for any purpose whatsoever. Infact, the role of accused Yaseen started only when Yakub and the victim reached at Chandpur, District Bijnore, UP and he only helped in getting a rented accommodation to the two. Once it has been held that the victim was a major and a consenting party, even that role of accused Yaseen assumes no importance.
23. For the foregoing reasons, I am of the considered opinion that the prosecution has failed to prove its case against both accused beyond SC No. 44927/2015 FIR No.172/2014 PS Sonia Vihar 12 of 13 reasonable doubt. Accordingly, accused Yakub and Yaseen are hereby acquitted of the offences under Section 120B IPC, Section 17 r/w Section 6 of the POCSO Act and alternatively under Section 109 IPC r/w Section 376(2)(n) IPC and Section 6 of the POCSO Act.
Accused Yakub is also acquitted of the offences punishable under Section 363/366 IPC, Section 6 of the POCSO Act and alternatively under Section 376(2)(n) IPC.
Both the accused are set at liberty. Their personal bonds and surety bonds are discharged.
File be consigned to record room after complying with the provisions of Section 437A Cr. PC.
ANNOUNCED IN OPEN COURT ON 19th day of August 2016 (Sanjay SharmaI) Addl. Sessions Judge01 (NE) Karkardooma Courts, Delhi SC No. 44927/2015 FIR No.172/2014 PS Sonia Vihar 13 of 13