Delhi District Court
State vs Mohd.Ashraf on 24 August, 2012
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus Mohd.Ashraf
S/o Shri Sher Mohammad
R/o Village Salempur,
PS- Kurawali,
Distt. Mainpuri, UP.
SC No. : 117/06
FIR No. : 464/2005
U/S : 363/366/376 IPC
PS : Badarpur
Computer ID No. 02403R0130542006
ORDER ON SENTENCE
Present: Mr.Inder Kumar, Addl. PP for the State.
Convict in JC with Mr.S. K. Saxena, Amicus-
Curiae.
After having convicted the accused for the
offence punishable under Section 363 IPC vide my
judgment dated 24.08.2012, arguments have been heard
today as advanced by Mr.Inder Kumar, Ld. Addl. PP for
State and and Mr.S. K. Saxena, Amicus-Curiae for the
convict on the point of sentence to be awarded to the
convict. The submissions made by the convict himself
have also been heard.
2. It has been submitted on behalf of the
SC NO.117/06 State Vs Mohd. Ashraf
2
prosecution that the maximum term of imprisonment be
imposed upon the convict as he has been found guilty of
kidnapping of a minor girl and his above act has ruined
the life of a girl. It has also been submitted that
besides this case, the accused is also involved in
another case of similar nature registered vide FIR
No.354/2011 under Sections 363/376 IPC at the same PS
Badarpur and the trial of the above case is still
pending against him.
3. On the other hand, it is submitted on behalf
of convict that he is aged around 26 years and is
having the liability to maintain his one younger
brother and one sister who both are living in his
native village with their relations. It is also
submitted that the the above subsequent case
registered against the accused is false and trial of
the same is still pending. It is also stated that the
accused is not a previous convict and request is being
made for sentencing him to the period already undergone
by him in custody.
4. I have thoughtfully considered the above
submissions being advanced on the point of sentence.
It has already come on record that subsequent to this
case, the accused was also involved in a case of
kidnapping and rape vide FIR No.354/2011 registered at
SC NO.117/06 State Vs Mohd. Ashraf
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PS Badarpur, though the trial of the above case is
still pending. It is also on record of this case that
at the time when the accused was arrested in this case,
he was already running in judicial custody in another
case FIR No.906/2005 under Sections 457/380/34 IPC of
PS Badarpur. Further, it is also a matter of record
that when the accused had absconded during trial, he
was produced in this court on production warrant issued
on the request of his surety as he was found to be
running in custody in another case being FIR
No.13/2008 under Sections 393/402 IPC of PS Sangam
Vihar. Subsequently also, the accused had again
absconded during the trial and was ultimately declared
to be a Proclaimed Offender and could be re-arrested
only after a gap of more than one year. Hence, the
antecedents and the conduct of the accused during the
trial do no warrant any leniency in the matter of
sentence.
5. However, still keeping in view the age,
family background and all other attending
circumstances, the convict is being awarded the
sentence of rigorous imprisonment for a period of 04
years and is also sentenced to pay a fine of
Rs.5,000/-. In case of non payment of fine he shall
further undergo simple imprisonment for a period of 03
months. The period of custody already undergone by him
SC NO.117/06 State Vs Mohd. Ashraf
4
is allowed to be set off in terms of the provisions of
Section 428 Cr.P.C. Fine has not been paid. Let him to
undergo the above sentence as per law.
6. A report was also called from the Jail
Superintendent for today regarding the total period of
imprisonment already undergone by the convict and it is
reported that the accused had already remained in
custody in this case for a total period of 02 years, 05
months & 16 days till 26.08.2012. However, the above
period of his previous custody and its break-up given
in the report is not as per the record of this case. As
per the record of this case, the convict was arrested
in this case on 09.12.2005 and his bail bond was
accepted on 04.08.2006 and he might have been released
from the Jail on the same day as there is nothing on
record to show that his release was delayed due to any
reason. After he had initially absconded from the
court proceedings, he was taken into custody on
19.03.2008, on appearance in custody from some other
case, and his bail bond was subsequently accepted on
13.07.2009. He had again absconded from the proceedings
and was declared a P.O. on 31.01.2011 and was produced
in this court after arrest and sent to JC on 15.03.2012
and is in custody since then.
7. The periods of his previous custody as per
SC NO.117/06 State Vs Mohd. Ashraf
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the above come to 07 months & 27 days, 01 year, 03
months & 26 days and 05 months & 14 days respectively
till date and the total period of his previous custody
comes to 02 years, 05 months & 07 days. Hence, let the
Jail Superintendent to check his records for finding
out the correct period of the total previous custody
undergone by the convict. Let a copy of this order on
sentence be sent to the Jail Superintendent for his
information and necessary action.
8. A copy of the judgment and the order on
sentence be also supplied to the convict free of cost.
File be consigned to the record room.
Announced in the open
Court on 27.08.2012 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC NO.117/06 State Vs Mohd. Ashraf
6
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus Mohd.Ashraf
S/o Shri Sher Mohammad
R/o Village Salempur,
PS- Kurawali,
Distt. Mainpuri, UP.
SC No. : 117/06
FIR No. : 464/2005
U/S : 363/366/376 IPC
PS : Badarpur
Computer ID No. 02403R0130542006
Date of institution : 13.03.2006
Date of reserving judgment : 21.08.2012
Date of pronouncement : 24.08.2012
J U D G M E N T
The accused has been sent to face trial by the SHO PS Badarpur on allegations that he had kidnapped the prosecutrix 'P' (name withheld) from her lawful guardianship knowing that she will be seduced and subjected to illicit intercourse and had also subsequently raped her.
2. The facts of the case, in brief, are that the prosecutrix had gone missing from her house No.K-20, Saurabh Vihar, Badarpur, New Delhi in the night of SC NO.117/06 State Vs Mohd. Ashraf 7 31.05.2005 and 01.06.2005 when she alongwith her other family members was sleeping on the roof of her house. She was found missing in the morning at about 05.00 AM on 01.06.2005 and when she could not be traced out by her family members, the matter was reported to the police by her father Shri Mahender Singh vide DD No.16B Ex.PW15/A dated 02.06.2005 while stating that she was last seen by him at about 12.30 AM on 01.06.2005. Since prosecutrix could not be traced about, subsequently the statement Ex.PW1/B of his father was recorded by the IO/PW17 SI Mohinder Singh Dahiya (ASI at that time) on 07.06.2005 and rukka Ex.PW17/A was endorsed thereon and the FIR of this case Ex.PW10/A was registered under Section 363 IPC against unknown person.
3. The investigation was undertaken by the above IO/SI himself and the site plan Ex.PW17/B was prepared by him and efforts were made to search the prosecutrix through the messages sent to the Missing Persons Squad and publications in the local newspapers. The prosecutrix was ultimately recovered from the House No.64, Village Meethapur, Badarpur, New Delhi on 27.11.2005 on the basis of some secret information and the memo Ex.PW1/A regarding her recovery was prepared, which is also witnessed by her father/complainant. Besides her statement under Section 161 Cr.P.C. recorded by the IO/PW17, her statement under Section SC NO.117/06 State Vs Mohd. Ashraf 8 164 Cr.P.C. Ex.PW4/A was also got recorded on 01.12.2005 in which she had stated that she was in love with one boy named Ashraf and she had started residing with her after leaving her house and she was apprehended by the police when they were going to marry. She was also got medically examined from the AIIMS hospital vide MLC Ex.PW14/A. The IO/PW17 had also collected one certificate Ex.PW5/A from the Sarvodya Kanya Vidyalaya, Molarband, Badarpur, New Delhi and as per the above certificate, the date of birth of the prosecutrix recorded in the school record was 10.08.1989. Since her hymen was found to be torn in the above medical examination, Sections 366 and 376 IPC were added in the case and her vaginal swab seized vide seizure memo Ex.PW8/A was sent to FSL for analysis.
4. It is also alleged in the charge-sheet that the accused Mohd.Ashraf was subsequently found to be running in judicial custody in case FIR No.906/2005 dated 11.11.2005 under Sections 457/380/34 IPC of PS Badarpur and on his appearance in the court on production warrants, he was formerly arrested in this case on 09.12.2005 and was also got medically examined vide MLC Ex.PW13/A and his blood gauze seized vide seizure memo Ex.PW12/A was also sent for analysis to the FSL. After recording the statements of other witnesses under Section 161 Cr.P.C. and completing the SC NO.117/06 State Vs Mohd. Ashraf 9 requisite formalities, a charge-sheet for commission of the offences punishable under Sections 363/366/376 IPC was ultimately filed against the accused, pending the receipt of the report of the FSL.
5. The charge-sheet was filed in the court of Ld.MM concerned on 06.02.2006 and after compliance of the provisions of Section 207 Cr.P.C., the matter was committed to the Sessions court on 06.03.2006.
6. A prima facie case for commission of the offences punishable under Sections 366/376 IPC was also found to be made against the accused vide order dated 12.04.2006 and charges for the aforesaid offences were also framed against him on the same date.
7. The prosecution in support of its case has examined total seventeen witnesses on record and their names and the purpose of examination etc. is being stated herein below:-
8. PW1 Shri Mahender Singh, is the father of the prosecutrix and he has deposed regarding the missing of the prosecutrix, lodging of the missing report with the police and also the subsequent registration of this case on the basis of his statement Ex.PW1/B. He is also a witness to the memo of recovery of the prosecutrix SC NO.117/06 State Vs Mohd. Ashraf 10 vide Ex.PW1/A.
9. PW2 Smt.Bimla is the mother of the prosecutrix and she has only deposed regarding her daughter going missing from their house.
10. PW3 Shri Balram is the landlord of the above H.No.64, Village Meethapur, Badarpur, New Delhi from where the prosecutrix was recovered and he has only stated that on 10-12.11.2005, a boy had come to him alongwith a girl, who had introduced that girl with him as wife of a person, who was away to his native village and he (witness) had given his room on rent to that girl for living there with her husband. He has also stated that though, the girl had lived there and subsequently taken away by the police and her father after about 14-15 days; but her husband did not come to stay with her.
11. PW4 is the prosecutrix herself and her statement will be discussed and appreciated later on.
12. PW5 Ms.Anu Goel is a teacher of the above Sarvodya Kanya Vidyalaya, Molarband, Badapur, New Delhi where the prosecutrix had studied and she has produced in this court the admission record of the prosecutrix and has proved the above certificate/letter Ex.PW5/A in SC NO.117/06 State Vs Mohd. Ashraf 11 which the date of birth of the prosecutrix is mentioned as 10.08.1989.
13. PW6 Shri Kishan Lal is the owner/land lord of one other H.No.31B, Gali No.7C, Molarband Extension, New Delhi and he has stated that the accused had resided in his house as a tenant from the month of September, 2005 till 10.11.2005 with one girl, whom he had introduced as his wife. But later on, he had come to know that the above girl was a kidnapped girl and he had told the above facts to the police.
14. PW7 Ct.Brij Raj Singh had only handed over the copy of the FIR of this case and the original rukka to the IO/PW17 at the house of the complainant.
15. PW8 W/Ct.Munni Devi had joined the investigation of this case on 27.11.2005 with the IO/PW17 when the prosecutrix was recovered from the above house in village Meethapur, Badarpur, Delhi in the presence of her father/complainant. She had also got her medically examined from the AIIMS hospital and is a witness of the memo Ex.PW8/A regarding the seizure of the parcel of the vaginal swab etc. of the prosecutrix by the IO/PW17.
16. PW9 HC Surender Singh was working as a SC NO.117/06 State Vs Mohd. Ashraf 12 Constable in PS Badarpur on 27.11.2005 and he had accompanied the IO/PW17 to the above house in village Meethapur, Badarpur, New Delhi and is a witness of recovery of prosecutrix vide memo Ex.PW1/A prepared in that regard.
17. PW10 HC Laxman Singh is the duty officer of this case and he had recorded the FIR Ex.PW10/A. He had further made endorsement Ex.PW1/B on the original rukka regarding registration of this case.
18. PW11 Ct.Dinesh had taken the sealed parcels of the exhibits of this case to FSL, Rohini, Delhi on 02.02.2006 vide RC No.47/21 and had handed over back the acknowledgement receipt thereof to the MHC(M) after depositing the same.
19. PW12 Ct.Satyawan had only joined the investigation of the case on 26.12.2005 and had accompanied the IO/PW17 to Jail No.5, Tihar, Delhi and had taken the accused to AIIMS for his medical examination. He is also a witness to the above seizure memo Ex.PW12/A regarding blood gauze etc. of the accused.
20. PW13 Dr.Chitranjan Behra has proved on record the MLC of the accused as Ex.PW13/A. SC NO.117/06 State Vs Mohd. Ashraf 13
21. PW14 Dr.Garima Kachhawa has proved on record the MLC of the prosecutrix as Ex.PW14/A, which was prepared by Dr.Charu as she was able to identify the handwriting and signatures of her senior colleague Dr.Charu, who had since left the hospital and her present whereabouts were not known in the hospital.
22. PW15 HC Veerpal was the DD writer of the police station Badarpur on 02.06.2005 when the missing report of the prosecutrix was lodged. He has also proved on record a carbon copy of the above DD No.16B as Ex.PW16/A as original thereof already stood destroyed.
23. PW16 HC Rajender Kumar was the MHC(M) of the PS on 02.02.2006 when the exhibits of this case were sent for analysis to FSL, Rohini, Delhi.
24. PW17 IO/SI Mohender Singh Dahiya (ASI at that time) is the investigating officer of this case and he has broadly deposed on the above lines of prosecution story and also about the various documents prepared by him during the investigation of this case.
25. After the conclusion of the prosecution evidence, the entire incriminating evidence brought on SC NO.117/06 State Vs Mohd. Ashraf 14 record was put to the accused in his statement recorded under Section 313 Cr.P.C. and the same was denied by him to be incorrect. The accused has claimed himself to be innocent and to have been falsely implicated in this case, while stating that the prosecutrix had left her house on her own and had lived with him with her free consent. He has also claimed that the prosecutrix was much older than her age which was shown in her school certificate and the relations established between him and prosecutrix were with her consent. However, though the accused had chosen to lead evidence in his defence, but no defence witness was summoned or examined by him on record and on his request, his defence evidence was subsequently closed by the court.
26. Besides the above, the FSL report regarding the examination of the exhibits of this case was also tendered on record as Ex.PW17/D during the statement of the IO/PW17. However, the same is not of any relevance as the same does not in any way connect the accused with the prosecutrix or the commission of the alleged offence of rape.
27. I have heard the arguments advanced by Sh.Inder Kumar, Ld. Additional PP for the State and Sh.S.K. Saxena, Ld. Amicus-Curiae for the accused and SC NO.117/06 State Vs Mohd. Ashraf 15 have also appreciated the evidence led on record and the other record of the case.
28. It is necessary to mention here that the accused had not been regular in attending the court proceeding and had also absconded from the same on few occasions. Once after recording of his statement under Section 313 Cr.P.C., when the matter was at the stage of his defence evidence, the accused had again absconded from the proceedings and after the execution of process under Sections 82-83 Cr.P.C., he was declared to be a Proclaimed Offender vide order dated 31.01.2011. However, he was subsequently arrested in a Kalandra under Section 41.1(c)Cr.P.C. dated 15.03.2012 PS Malviya Nagar and was produced before this court on 17.03.2012 and the proceedings of this case were restarted against him.
29. The first thing which the prosecution has to establish in this case is the age of the prosecutrix and for proving the offence of rape under Section 376 IPC, the prosecution has to prove that the prosecutrix was either aged below 16 years or if she was above the age of 16 years, then the sexual intercourse was done without her consent. Hence, the consent of the prosecutrix for the offence of rape becomes relevant only when she is aged above 16 years and if it is SC NO.117/06 State Vs Mohd. Ashraf 16 found that she was under 16 years of age at the time of commission of the above offence, then even if the sexual intercourse was done with her consent, the same will amount to rape. However, for the offence punishable under Section 366 IPC, the relevant age for kidnapping of a girl is 18 years as the offence of kidnapping from lawful guardianship defined under Section 361 IPC prescribes this age for a female and the age of 16 years for a male.
30. When the evidence led by the prosecution on record is appreciated for determination of the age of the prosecutrix, it is found that the father of the prosecutrix/complainant Sh.Mahender Singh, the mother of the prosecutrix Smt.Bimla/PW2 as well as the prosecutrix/PW4 herself all have stated on record the age of the prosecutrix at the time of leaving of her parental house to be around 16½ years. PW1/ complainant has stated in his examination-in-chief itself that his daughter was 16½ years old when she was taken by the accused. PW2 Smt.Bimla in her examination-in-chief has also stated that her daughter was 16½ years old when she had gone missing and the prosecutrix/PW4 also stated specifically in her chief examination as well as in her cross-examination that she was about 16½ years old when the accused had taken her away.
SC NO.117/06 State Vs Mohd. Ashraf
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31. During the evidence led on record, one
document pertaining to the age of the prosecutrix has also been brought on record and it is a letter/ certificate dated 29.11.2005 of the Sarvodya Kanya Vidyalaya, Molarband, Badarpur, New Delhi, which is Ex.PW5/A, and the date of birth of the prosecutrix mentioned in this certificate is 10.08.1989. The above document has been duly proved on record from the depositions made by PW5 Smt.Anu Goel, a teacher of the abovesaid school, and she has also stated on record that the prosecutrix was admitted in their school vide admission No.4898 in the year 2000 and her name was struck off from the school admission register on 06.08.2004 due to long absence and non-payment of the funds. The date of the commission of the alleged offence of kidnapping in this case is 01.06.2005 as prosecutrix had gone missing from her home between 12.30AM to 05.00AM on that date. Going by the date of birth of the prosecutrix mentioned as 10.08.1989 in the above document, her age comes to about two months and one week less than 16 years at the time when she had left her parental house.
32. It has been argued by Ld.Addl.PP for State that above document clearly establishes that the prosecutrix was below 16 years of age on the date on SC NO.117/06 State Vs Mohd. Ashraf 18 which she had left her house and hence the prosecution has successfully proved the charges for the offences punishable under Sections 366 and 376 IPC framed against the accused as even if the prosecutrix is taken to be a consenting party to the commission of sexual intercourse between her and the accused, the same will amount to rape as her consent given for the same is immaterial in terms of the definition of the offence of rape under Section 375 IPC because according to Clause Sixth of the above Section, the same amounts to rape even if it is committed with or without her consent as she is under 16 years of age. He has also argued that even otherwise the evidence led on record further suggests that the consent of the prosecutrix for commission of the sexual intercourse was obtained by the accused under threats and the same amounts to rape even if she is held to be above 16 years of age. As far as the offence punishable under Section 366 IPC is concerned, it is his argument that the depositions made by the prosecutrix in this court clearly establish that she had left her home and the guardianship of her parents under an inducement and promise made by the accused for marrying her.
33. On the other hand, Ld. Amicus-Curiae has argued that in view of the oral depositions made by the prosecutrix herself as well as her parents, the SC NO.117/06 State Vs Mohd. Ashraf 19 date of birth of the prosecutrix mentioned in the certificate Ex.PW5/A should not be believed and she was above 16 years of age on the above date of leaving her house. It is also argued that since she had left her house on her own will and without any inducement or promise made by the accused and further since the physical relations established between her and the accused were with her free consent, no offence under Sections 366 or 376 IPC is made out against the accused.
34. Though, as per the school certificate Ex.PW5/A, the date of birth of the prosecutrix is 10.08.1989, but the above documentary evidence led on record by the prosecution is sharply in contrast and contradiction to the oral evidence led on record. As stated above, the parents of the prosecutrix, i.e. PW1/complainant and PW2, as well as the prosecutrix/ PW4 herself have all stated the age of the prosecutrix on the relevant day of leaving of her house to be around 16½ years. In the MLC Ex.PW14/A of the prosecutrix dated 27.11.2005, which stands duly proved on record from the depositions made by PW14 Dr.Garima Kachhawa, the age of the prosecutrix has been recorded to be 17 years. Though, PW5/Smt.Anu Goel has stated that the prosecutrix was admitted in their school in the year 2000, but she is silent in her statement SC NO.117/06 State Vs Mohd. Ashraf 20 regarding the class in which she was admitted there. Further, though one attested photocopy of a school leaving certificate of the prosecutrix of a Government Secondary School of District Etawa, UP (name of City is not legible from the certificate), which is further attested by the Vice Principal of the above Sarvodya Kanya Vidyalaya, Molarband, Badarpur, New Delhi, is also on the judicial file, but the same has not been exhibited or proved on record as per the provisions of the Indian Evidence Act, 1872. It appears that the above photocopy of the school leaving certificate of Etawa, UP might have been given in the above Delhi school at the time of admission of the prosecutrix in the said school and as per the above document, the prosecutrix had studied in 6th class during the year 1998-99 in the above school of Etawa, UP and the date of birth 10.08.1989 of the prosecutrix also appears to have been recorded in the admission register of the Delhi school on the basis of above record of Etawa, UP school.
35. However, the above document of the Etawa, UP school has not been proved on record as per the provisions of the Indian Evidence Act, 1872 and no record has also been collected or summoned from the said school. Even during the investigating the IO had not made any efforts to collect any record pertaining SC NO.117/06 State Vs Mohd. Ashraf 21 to the age of the prosecutrix from the earlier schools, which were attended by the prosecutrix or any birth certificate or other record from any Municipality or a Gram Panchayat etc. It is also not clear as to on the basis of which documents the date of birth of the prosecutrix as 10.08.1989 was entered in her above school records, and hence, the same cannot be taken to an authentic date of her birth. Moreover, the depositions made by the parents of the prosecutrix regarding her age being 16½ years at the relevant time of leaving of her house also cannot be ignored as they are the best persons who could have deposed regarding the age of their daughter.
36. Therefore, this court has serious doubts regarding the correctness of the date of birth of the prosecutrix recorded in the above certificate Ex.PW5/A as 10.08.1989 and it is well established that when two views on an aspect are possible, the court has to take that view which goes to the favour of the accused as benefit of doubt, if any, in a criminal prosecution has always to go to the accused and not to the prosecution. Hence, on the basis of the evidence led by the prosecution on record, the age of the prosecutrix is being taken to be above 16 years as on the date of leaving of her house, but appreciating the evidence led on record in its entirety, her age cannot SC NO.117/06 State Vs Mohd. Ashraf 22 by any stretch of imagination be taken to be above 18 years, and therefore, she is being held to be between 16 to 18 years of age as on the day when she left her house.
37. Since, the prosecutrix has been held to be above 16 years of age on the date of leaving of her house, her consent becomes material for commission of the alleged offence of rape subsequent of her eloping from her parental house.
38. As far as the offence of rape is concerned, besides the medical evidence led on record, the star witness of the prosecution examined in the court is the prosecutrix herself. She has stated on record that the accused Mohd. Ashraf used to reside in front of her house and he used to say to her that he was in love with her and he would marry her. She has also stated that whenever she used to go out of her house, the accused used to follow her and forced her to abscond with him and on 31.05.2005 she was got induced by the accused and the accused had taken her to Hari Nagar. She has further stated that at Hari Nagar she had asked the accused to marry with her, but the accused in place of marrying her had committed rape with her and thereafter, the accused had arranged a rented room at Molarband and had kept her there and at SC NO.117/06 State Vs Mohd. Ashraf 23 that place also he had raped her for about 20 times. It is also stated by her that the accused had taken her to Mainpuri, UP where he obtained her signatures on two documents and he was subsequently caught in some case by the Delhi Police and due to the fear that her parents might kill her, she had taken a room on rent in village Meethapur, Badarpur, New Delhi and started living there. She was also recovered subsequently on 27.11.2005 from the above rented house in village Meethapur, Badarpur, Delhi.
39. She was also examined vide MLC Ex.PW14/A dated 27.11.2005 and it is recorded in the said MLC that her hymen was found to be torn and as per the above MLC and the depositions made by PW14 Dr.Garima Kachhawa her introitus was found admitting two fingers easily.
40. Though, the prosecutrix in her above depositions has stated of her having been raped by the accused several times at different places, but when her statement made on record, as well as other evidence of the prosecution, is analysed in entirety, it is found that the physical relations made by the accused with her were not forcible and the same cannot amount to rape as she appears to be a consenting party to such relations.
SC NO.117/06 State Vs Mohd. Ashraf
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41. As stated above, she had disappeared from
her parental house in the night of 31.05.2005 and
01.06.2005 and she was recovered from the above house in village Meethapur, Badarpur, New Delhi only on 27.11.2005, i.e. after about six months of her disappearance from her parental house. During the above period she had admittedly remained in the company of the accused and she has also stated on record that she was made to reside in some houses at Hari Nagar and at Molarband and she was also taken to Mainpuri, UP, which is the native place of the accused. The prosecution has also examined on record PW3 Shri Balram and PW6 Shri Kishan Lal, who are the landlords of the premises in which they both or the prosecutrix alone are stated to have been resided as tenants. PW3 Shri Balram is the owner/landlord of the tenanted premises in village Meethapur, Badarpur, New Delhi and according to him, the prosecutrix was brought to him by a boy on 10-12.11.2005 and was introduced as a wife of a person, who was away to his native village and he was told by that boy that the prosecutrix was to reside in that accommodation with her husband, but her husband had never turned up to reside with her. He has also stated in the evidence that after about 14-15 days, she was taken away by the police and her father was also with the police.
SC NO.117/06 State Vs Mohd. Ashraf 25 His depositions show that the prosecutrix alone had resided in his house for a few days till she was recovered from the said house by the police.
42. PW6 Shri Kishan Lal is the owner/landlord of the house in village Meethapur, Badarpur where the prosecutrix as well as accused have both resided as tenants and as per the depositions made by this witness, they had taken his house on rent in the month of September, 2005 and had resided there till 10.11.2005. He has also stated that they had approached him while claiming themselves to be husband and wife and during their stay in the house, they had also lived as such and he had never felt from their behaviour that they were not husband and wife. Even the prosecutrix during her cross-examination has specifically stated that she knows PW6 Shri Kishan Lal, who was the owner of their tenanted premises at Molarband, Badarpur, New Delhi. During her cross- examination, the prosecutrix has also stated on record that she did not tell anything to their landlords or to their neighbours, wherever they had stayed. She has also stated that the accused Mohd.Ashraf used to leave the house during evening and he used to work from 06.00 PM to 11.00 PM and she never made any attempt to runaway in the absence of the accused.
SC NO.117/06 State Vs Mohd. Ashraf 26
43. As stated above, she was recovered in this case on 27.11.2005 and it is the admitted case of the prosecution that she was recovered from the above tenanted premises owned by PW3 Shri Balram in village Meethapur, Badarpur, New Delhi. It is also the admitted case of the prosecution that the accused Mohd. Ashraf had never resided in the above house and during the period of the stay of the prosecutrix therein, he was in judicial custody in case FIR No.906/2005 under Sections 457/380/34 IPC of PS Badarpur and he was also subsequently arrested in this case after he was produced in the court on production warrants during the investigation of this case. The recovery of the prosecutrix from the said house was effected on the basis of some secret information. The depositions of PW3 Shri Balram also suggest that the the boy who had accompanied the prosecutrix on 10-12.11.2005 for taking the above rented accommodation was not the accused, but some other boy and the prosecutrix during her cross-examination has stated on record that it was the brother of the accused, who had taken her to reside there, after the arrest of the accused Mohd.Ashraf in some case, and she has further stated on record that even the rent of the above premises for her stay therein was not paid by her and the same might have been paid by the brother of the accused.
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44. It is clear from the above that the
prosecutrix had been residing with the accused for
more than five months and even had physical relations with him and during this period they had resided at different places and even in exclusive rented accommodations. During this period she had admittedly not made any complaint to either of their landlords or the neighbours. Even after the accused was arrested and confined in some other case, she was taken to another rented accommodation by the brother of the accused. Hence, from the conduct of the prosecutrix as reflected by the evidence led on record, it is clearly established that the physical relations between her and the accused were consensual relations and the same cannot be termed as rape. Therefore, as far as the charge for the offence of rape made punishable under Section 376 IPC is concerned, the same is not held to be proved against the accused.
45. However, coming to the charge for the offence punishable under Section 366 IPC, the prosecution has to prove for this that the leaving of her parental home by the prosecutrix amounted to her kidnapping and the same was done by the accused with an intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any SC NO.117/06 State Vs Mohd. Ashraf 28 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 to seduced to such illicit intercourse.
46. The term 'kidnapping' from lawful guardianship relevant for this case is defined under Section 361 IPC and a person is said to have kidnapped any minor under 16 years of age if a male, or under 18 years of age if a female, or any person of unsound mind, if he 'takes' or 'entices' such minor or a person of unsound mind out of the keeping of the lawful guardianship of such minor or person of unsound mind without the consent of such guardian.
47. There is an essential distinction between the two words 'take' and 'entice'. The mental attitude of the minor is not of relevance in the case of taking. The word 'take' means to cause to go, to escort or to get into possession. When the accused takes the minor with him, whether she is willing or not, the act of taking is complete and the condition is satisfied. The word 'entice' involves an idea of inducement by exciting hope or desire in the other. One does not entice another unless the latter attempted to do a thing which she or he would not otherwise do. So, when the accused takes the girl SC NO.117/06 State Vs Mohd. Ashraf 29 along with him, he is 'taking' her out of the father's custody within the meaning of this Section.
48. The Hon'ble Supreme Court in the case of Thakorelal D Vadgama : AIR 1973 SC 2313 has observed as under:-
"The two words 'takes' and 'entices' as used in Section 361, are in our opinion, intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361. But if the guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian's custody or keeping and going to the guilty party, then prima facie it would be difficult for him to plead innocence on the ground that the minor had voluntarily come to him. If he had at an earlier stage solicited or induced her in any manner to leave her father's protection, by conveying or indicating or encouraging suggestion that he would give her shelter, then the mere circumstance that his act was not the immediate cause of her leaving the parental home or guardian's custody would constitute no valid defence and would not absolve him."
49. It was held in the case of S.Varadarajan Vs. State of Madras : AIR 1965 SC 942 that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of SC NO.117/06 State Vs Mohd. Ashraf 30 kidnapping. While defining the term 'taking', their Lordships had made the following observations:-
"There is a distinction between 'taking' and allowing a minor to accompany a person. The two expressions are not synonymous though it cannot be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S.361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian."
50. Further, the Hon'ble Supreme court in the case of State of Haryana Vs. Raja Ram : AIR 1973 SC 819, while interpreting the words 'taking out of the keeping' used in Section 361 IPC, had an occasion to discuss the effect of such inducement or persuasions made to a prosecutrix and they had made the following observations:-
"The object of this Section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen 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 such guardian. The words "takes or entices any minor ............. out of the keeping of the lawful guardian of such minor" in S. 361, are significant. The use of the word "keeping" in the context connotes the idea of charge, SC NO.117/06 State Vs Mohd. Ashraf 31 protection, maintenance and control : further the guardian's charge and control appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. 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 the Section."
51. As gathered from the above, the offence of kidnapping from guardianship defined under Section 361 IPC is not an offence against the kidnapped person and rather it is an offence against the guardianship of such minor or other person and the consent of the person kidnapped is immaterial. The evidence led by the prosecution on record of this case clearly shows that the prosecutrix had moved out of the guardianship of her parents without the consent and knowledge of her parents. It is argued by Ld. Amicus-Curiae that she had voluntarily abandoned the guardianship of her parents and had subsequently accompanied the accused and started residing with him and hence, even no case of kidnapping is made out against accused. It is also argued by him that the depositions of the parents of the prosecutrix clearly show that the prosecutrix had left the house when she was sleeping with her family SC NO.117/06 State Vs Mohd. Ashraf 32 members on the roof of her house and the accused was nowhere in the scene. It has also been argued by him that the prosecutrix in her statement under Section 164 Cr.P.C. Ex.PW4/A has specifically stated that she was in love with the accused and hence, she left her home and started residing with the accused.
52. The presence of the accused at the above time was nowhere required in the house of the prosecutrix and the facts and circumstances of the case and the evidence led on record are required to be scrutinized to find out if the leaving of her house and the guardianship of her parents by the prosecutrix was a voluntary abandonment of the guardianship by her or the same was because of some promise or inducement made from the side of the accused. If it is found that there was any such promise or inducement playing on the mind of the prosecutrix at the above time, then the physical presence of the accused at the above time was nowhere required and it is sufficient for establishing the case of the prosecution if it is found that the prosecutrix had left her house under the influence of that promise or inducement and had subsequently accompanied the accused and started residing with him.
53. The offence of kidnapping defined under SC NO.117/06 State Vs Mohd. Ashraf 33 Section 361 IPC is a continuing offence. The prosecutrix/PW4 in her statement made in this court has specifically stated that the accused used to say to her that he was in love with her and he would marry to her and whenever she used to go out of her house, the accused used to follow her and forced her to abscond with him. She has also stated that on 31.05.2005 she was got induced by the accused and he had taken her to Hari Nagar. She has further stated that at Hari Nagar she had asked the accused to marry with her, but the accused in place of marrying her, had committed rape with her there at Hari Nagar. She also stated that at Mainpuri, UP the accused had obtained her signatures on two documents.
54. During the cross-examination of the prosecutrix, no specific suggestions have been given to her by Ld. Amicus-Curiae that her above depositions are false or that there was no promise from the side of the accused to marry the prosecutrix. Even in her cross-examination she has stated that she was not in love with the accused. She has also not been suggested specifically in her cross-examination that she with her own free will and consent had left the house of her parents or had abandoned her guardianship and had accompanied the accused. Even during the course of recording of his statement under Section 313 Cr.P.C., SC NO.117/06 State Vs Mohd. Ashraf 34 it is the case of the accused that the signatures of the prosecutrix on some documents at Mainpuri, UP were obtained for the purpose of marriage, when they had gone to the court for the said purpose. Hence, though no document of marriage between them has been brought on record, but the evidence led on record clearly establishes that there was a promise made by the accused to marry the prosecutrix and this promise was prevailing upon the mind of the prosecutrix and had forced her to leave the guardianship of her parents and her parental home.
55. As far as the statement under Section 164 Cr.P.C. Ex.PW4/A made by the prosecutrix is concerned, the same is not of any help to the case of the accused because in terms of the provisions contained in Section 145 of the Indian Evidence Act, 1872, the same could only have been used for the purposes of confronting the prosecutrix with the same and since she was never confronted with the same in the court with her previous statement, the contents thereof cannot be considered or accepted in evidence.
56. Their Lordships of the Hon'ble Supreme Court in the case of Moniram Hazarika Vs. State of Assam :
(2004) 5 SCC 120 had also the occasion to consider and interpret the words 'enticement' with reference to SC NO.117/06 State Vs Mohd. Ashraf 35 provisions of Section 361 IPC in the case of a minor girl, who had left the lawful guardianship of her parents on a promise made by an accused to marry her and following observations were made in the said case:-
"Thus two things are clear from this fact; one, that there was a promise of marriage and secondly, based on the said promise PW2 went with the appellant. Of course, PW2 had come out with the case that she had come out of the house to answer the call of nature when she was forcibly taken by the appellant, which part of the prosecution case is not accepted. But the material on record, as stated above, shows that there was a promise of marriage made to PW2 which amounts to enticement of a minor because of which she had left the house of her lawful guardian. In this background, in our opinion, the courts below were justified in coming to the conclusion that the appellant had committed the offence punishable under Section 366 IPC."
57. It is, thus, clear from the above that the evidence led by the prosecution on record is sufficient to prove that the leaving of her parental home by the prosecutrix in this case amounted to her kidnapping by the accused as she was 'enticed' away by the promise made by the accused to marry her.
58. Now, it is to be seen if the above kidnapping of the prosecutrix by the accused is of the description and gravity as is defined under Section 366 IPC or not. In this regard, it is observed that the necessary ingredients of Section 366 IPC are that SC NO.117/06 State Vs Mohd. Ashraf 36 the kidnapping of a woman under that Section has to be made by the accused with an intent that she may be compelled to marry any person against her will or she may be forced or seduced to illicit intercourse or the accused should know it to be likely that she will be so compelled, forced or induced for the same. When the statement made by the prosecutrix in this regard and the other evidence led on record are appreciated in entirety, it is found that the essential ingredients of Section 366 IPC are absent in this case and the kidnapping of the prosecutrix by the accused cannot be said to have been made with an intent of compelling her to marry any person against her will or to force or compel her to have sexual intercourse with any person against her will and consent and it amounts to kidnapping only as is defined under Section 361 IPC and which is punishable under Section 363 IPC.
59. Reference in this case can also be made to the judgment of the Hon'ble Supreme Court in the case of Kuldeep K Mahato Vs. State of Bihar : AIR 1998 SC 2694 wherein the accused was convicted for the offences punishable under Sections 363/366/376 IPC by the Trial Court and his conviction was even upheld by the Hon'ble High Court. However, when the matter went before the Hon'ble Supreme Court, the conviction and sentence of accused for the offences under Sections SC NO.117/06 State Vs Mohd. Ashraf 37 366/376 IPC were set aside and he was only convicted for the offence under Section 363 IPC while observing that the kidnapping in the said case fails to meet out the essential ingredients of Section 366 IPC and the sexual intercourse between the her and the accused was also found to be with her consent. The following observations were made by their Lordships in the said case:-
"As far as conviction under Section 366 is concerned, we find that the evidence of prosecutrix in the (sic) behalf is not conclusive. Her evidence does not indicate that the appellant had kidnapped prosecutrix with the intention to marry with her against her will or in order that she may be forced to illicit intercourse. These two vital ingredients for upholding conviction under Section 366 are not proved and, therefore, the conviction of the appellant under Section 366 cannot be sustained."
60. In view of above discussion, it is held that though the prosecution has not been able to substantiate its charges against the accused for the commission of offences punishable under Sections 366/ 376 IPC, but it has certainly been successful to prove the offence of kidnapping committed by the accused, which is defined under Section 361 IPC and is made punishable under Section 363 IPC. Since, the offence punishable under Section 366 IPC is an aggravated form of the offence punishable under Section 363 IPC, the accused can be convicted for the offence punishable SC NO.117/06 State Vs Mohd. Ashraf 38 under Section 363 IPC even in the absence of a formal charge having been framed against him for that offence.
61. Therefore, the accused is held guilty and convicted for the offence punishable under Section 363 IPC. Let he be now heard on the point of sentence.
Announced in the open
Court on 24.08.2012 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC NO.117/06 State Vs Mohd. Ashraf