Delhi District Court
State vs Habib Sc No.88/13, Fir No.02/09, Ps ... on 22 November, 2013
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IN THE COURT OF SHRI SANJEEV KUMAR: ASJ01: NORTH:
ROHINI DELHI
SC No:88/13
FIR No.2/09
PS :Swaroop Nagar.
U/S: 363/366/376 IPC.
STATE
VERSUS
Habib Khan @ Samir, S/o Jamil Khan.
R/o H.No.3, Kh.No.447,
Guru Nanak Colony,
Bhalswa Dairy, Delhi. .... Convict
ORDER ON SENTECE
1. Shri A.K. Gupta, APP for State and Shri Pankaj
Kumar, Advocate for convict heard.
2. The convict Habib has been convicted vide judgment
dt.16.11.13 for offence u/s 363 IPC. The brief facts of the case are
that convict has kidnapped the prosecutrix D a minor girl less
than 18 yrs. of age from the custody of their lawful guardian
without their consent and kept her in a tenanted accommodation
at village Rajapur for four months approximately.
STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 1 OF 49
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3. Ld. APP submits that the act of convict is quite grave
and he should be given maximum sentence prescribed under law.
4. On the other hand, Ld. Counsel for convict submits
that convict is 24 yrs. of age and at the time of commission of
offence he was just 20 yrs. of age therefore, he was not matured
enough and could not understand the consequences of his act
and fell in love with the D and took her. Ld. Counsel further
submits that convict has remained in custody for a period of four
yrs. six months and eighteen days and he is neither a previous
convict nor involved in any crime. Hence lenient view may be
taken and he may be released for the period already undergone.
5. I have considered the arguments and gone through
the record. The object of sentencing is not only to punish the
person who commit the crime but also to see that he could be
reformed so that he could become a good citizen. The convict
was a young man just a 20 yrs. of age at the time of commission
of crime. Hence I am agree with the contention of ld. Counsel for
convict that he himself was not matured enough. I have already
held in the judgment that prosecutrix had gone with the accused
with her own consent and it appears that both accused and
prosecutrix were in love and in that scenario convict has taken
the said step of taking the prosecutrix out of the custody of her
STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 2 OF 49
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lawful guardian.
6. Considering the facts and circumstances of the case,
I order that the convict is sentenced for the period already
undergone with a fine of Rs.5,000/ in default he shall undergo SI
for three months for offence u/s 363 IPC.
7. A copy of Judgment and that of order on sentence be
supplied to the convict free of cost today itself. File be consigned
to record room.
ANNOUNCED IN OPEN COURT (SANJEEV KUMAR)
on 22.11.2013. ASJ01 (NORTH), ROHINI:DELHI.
STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 3 OF 49
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IN THE COURT OF SHRI SANJEEV KUMAR: ADDITIONAL
SESSIONS JUDGE01: NORTH: ROHINI:DELHI
S. C. NO:88/13.
FIR NO.02/09.
PS :SWAROOP NAGAR.
U/S: 363/366/328/376/344/506 IPC.
STATE
VERSUS
HABIB S/O. JAMIL KHAN
R/O. H.NO.3, KHASRA NO.447,
GURU NANAK COLONY,
BHALASWA DAIRY, DELHI.
Date of Institution:24.08.2009.
Date of Argument:17.10.2013.
Date of Decision:16.11.2013.
JUDGMENT
1. The prosecution story in brief is that on 04.01.2009 Complainant Smt. Manwati @ Shanti W/O. Late Charan Singh R/o.Gurudwara Road, Masjid Wali Gali, Khasra No.447, Swaroop Nagar, Delhi had come in the PS and recorded her statement/ complaint that, "She has been residing at the abovesaid address alongwith her family and doing the job of maid servant in the Kothis and her daughter D (name withheld and hereinafter her name will be referred as D), aged 16 years residing with her, who STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 4 OF 49 -:5:- from 7pm on 27.12.2008 had gone missing and since she has been searching her daughter and making best efforts, but all in vain. She had also raised her suspicion upon one boy namely Habib S/o. Jamil Khan had enticed her daughter and necessary legal action be taken". Thereafter the said rukka was handed over to DO WHC Sumitra and she recorded the FIR on the basis of said statement u/s. 363 IPC and she had informed the PCR and further investigation was marked to ASI Rajeshwar. IO/ASI Rajeshwar had obtained the photograph of the missing girl and gather information about suspect Habib and came to know that, he is driver by profession and running private vehicle. IO called accused Habib and inquired from him and he told that, previously he came in contact with D through one R (name withheld as prosecutrix in another case) and met with D at Nirankari Park and thereafter he was freed after preliminary inquiry.
On 10.01.2009 Smt. Manwati had obtained the school leaving certificate of D and copy of same handed over to IO in which her date of birth was mentioned as 22.12.1991 and thereafter IO sent the information to Missing Person Squad and also sent information to CBI and also gathered information about R. Thereafter R had also joined the investigation and she had stated that, 'she is studying in Government Girls Senior STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 5 OF 49 -:6:- th Secondary School, KBlock, Jahangirpuri in 9 class and one girl namely D is also studying in her class and said girl was residing in front of her house. She further stated that, 34 months earlier had accompanied her to meet with one Habib. Thereafter IO searched the said girl D but he could not be able to trace said girl.
On 30.04.09 accused Habib was arrested in a case u/s. 363/365/366/328/344/384/34 IPC, PS - Swaroop Nagar in FIR No.97/09 and in his disclosure statement, but nothing fruitful information has been given about girl D. Later on IO came to know that girl D on 30.04.2009 gone to her brother in law (jija). Thereafter he recorded statement of said girl D u/s. 161 Cr.P.C. and got her medically examined at BJRM Hospital and obtained her MLC and also collected the exhibits from concerned doctor. Thereafter, IO got recorded statement of D u/s. 164 Cr.P.C. before ld. MM and obtained the copy of the same and also got issued production warrant qua accused Habib and on 04.05.09 accused Habib was arrested while he was appearing before concerned MM in another case and recorded his disclosure statement. Thereafter offence u/s. 365/344/328/506/376 IPC was added and accused was also medically examined at BJRM Hospital and thereafter after completion of the investigation filed the chargesheet qua accused Habib.
STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 6 OF 49 -:7:-
2. Ld MM after compliance of provision u/s 207 Cr.P.C committed the case to Sessions Court through Ld District Judge which was assigned to this court.
3. Vide order dated 04.09.2009 charge u/s 363/366/328/ 376/344 IPC were framed against the accused to which he pleaded not guilty and claimed trial.
4. In order to prove his case prosecution examined 20 witnesses i.e. PW1/Prosecutrix 'D', PW2 Rakesh, PW3 Smt. Manwati, PW4 Shakuntala, PW5 Dr. J.P. Palyia, PW6 Parvej Alam, PW7 'R', PW8 Ms. Surender Bhardwaj, PW9 Ajay Tara, PW10 HC Shri Pal, PW11 Dr. Meet Kumar, PW12 Dr. Shakuntla Rani, PW13 Alamgir, PW14 Wct. Babita, PW15 Ms. Smita Garg, PW16 SI Rajeshwar, PW17 HC Krishan Pal, PW18 WHC Sumitra, PW19 ASI Devender Singh and PW20 Dr. Neeraj Chaudhary.
5. After completion of evidence statement of accused u/s 313 Cr.P.C. was recorded and all the incriminating evidence were put to him but he denied the same and stated that prosecutrix was more than 18 years of age and left her sister house with her own consent and resided at Rajokari village as her sister father in law used to misbehave with him and tried to outrage her modesty and he used to visit there. STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 7 OF 49 -:8:-
6. Arguments were heard from Ld. Add. PP Sh. A.K. Gupta for state and Sh Avadh Bihari Kaushik Ld. Counsel for accused.
EVIDENCES
7. As stated above prosecution has examined 20 witnesses.
PW1 D is the prosecutrix her testimony will be discussed later on.
PW2 Rakesh is the Jija (brother in law) of the prosecutrix D and had stated that on 30.04.09 he received a telephone call on his mobile number 9210910537 from prosecutrix from PCO. Thereafter he alongwith his friend went to Rajokari village and reached at the PCO Booth and they waited for D there. After 3045 minutes, D came at that PCO and she was brought to Delhi at his house and he also informed his in laws. He further deposed that On 01.05.09 D was produced before the police vide recovery memo Ex.PW1/A. In his cross examination he stated that, his statement was recorded by police on 01.05.09. He denied the suggestion that his sister in law/D was residing in his house when she went missing or that he has no knowledge about the present or that police got D recovered from a house in Kapashera where she was staying out of her free will and consent or that at the STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 8 OF 49 -:9:- instance of and after the statement of R in other case FIR no. 97/09, PS Swaroop Nagar prior to recovery of D. PW3 Smt. Manwati is the complainant of this case and had deposed that, she used to reside in Swaroop Nagar and her daughter D used to reside with her. On 27.12.2008 her daughter D went to market but she did not return, she tried to search her but all in vain, thereafter she went to PS Swaroop Nagar and made her complaint and and she also stated that she has suspicion that Habib had kidnapped her daughter. In her cross examination she is not aware that accused Habib used to drop her daughter D at her school. She denied the suggestion that, she and her son had quarrel with accused Habib as they did not like him dropping D at school or that due to this reason, they shifted the school of D. She further denied the suggestion that whatever age was told by them to the school authority they entered the same in school record of her daughter. She further denied the suggestion that her daughter used to like Habib and was into a relationship with him and same was against her wishes, so she decided to teach him a lesson. She further denied the suggestion that her daughter was more than 18 years of age on the alleged date of incident.
PW4 Smt. Shakuntala Devi is landlady of the house STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 9 OF 49 -:10:- where prosecutrix D was confined by accused. She deposed that accused took her room on rent where he was residing with one girl Mehak whom he introduced as her sister and said girl also told that accused is his brother.
PW5 Dr. J.P. Palyia CMO BJRM Hospital had deposed that on 01.05.2009 at about 5.20pm prosecutrix D 17 years female was brought to BJRM Hospital by WCT Babita for medical examination and he examined said patient and proved MLC Ex.PW5/A and then referred to SR Gynae for further examination.
PW6 Parvej Alam deposed that accused used to tell him that, D and R (name with held being prosecutrix in other case) are very beautiful girl and accused Habib would marry with both of those girls and on this he told accused Habib that, girl D is Hindu and due to this riots/quarrel might be occurred. On this accused Habib threatened him. After 1520 days, Prosecutrix D went missing and on this he asked accused Habib about D, but initially accused Habib showed his ignorance and later on he stated that D was with him but he did not disclose the place where she was kept by him. One day, he alongwith accused Habib were roaming there at some unknown place accused Habib had showed him D from a distance and accused also STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 10 OF 49 -:11:- threatened him not to disclose this fact to anyone. He was declared hostile by ld. Addl. PP for the State and cross examined by ld. Addl. PP in his cross examination he admitted that he asked about D from accused and accused told him that, he had married with D and kept her confined at some unknown place and accused also threatened him to kill if he disclosed the said fact to anyone.
In his cross examination he had stated that, Prosecutrix D is known to him from the last two years and he does not know as to from when accused Habib and Prosecutrix D were known to each other. He denied he suggestion that he got his statement recorded on 22.5.09 as he was hiding till then as prosecutrix D had also named him in this case or that he compromised the matter with prosecutrix D and her family members or that in connivance with police he has got his name removed as an accused in this case or that he further agreed to implicate accused persons and to make statement against him.
PW7 R had stated that on 04.05.09 police took her and her father and accused Habib to Rajokari where accused her and prosecutrix. She pointed out that place. The date and month she does not remember when accused Habib took her to Rajokari in a room where she found that prosecutrix D was already STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 11 OF 49 -:12:- confined by accused in the said room, but she does not remember as to what happened, however, she has already deposed about the same in another case pertaining to accused Habib. She was declared hostile by ld. Addl. PP and cross examined her and in her cross examination by ld. Addl. PP she had admitted that when on 15.4.09 accused Habib alongwith his father Jamil kidnapped her and took her to Rajokari village in a room, where she saw prosecutrix D and on seeing D, she got surprised and accused Habib told her by threatening that accused Habib and prosecutrix D are good friends and that is why accused Habib would keep them as his wives. She further admitted that prosecutrix D got annoyed with me and told that, she was involved her in this incident and on this she had replied her that accused Habib brought her forcefully after kidnapping her and he wanted to marry with them. She further admitted that accused Habib had introduced her as his younger sister while D was introduced as Mehak. She further admitted that accused Habib used to keep them in front of land lady Shakuntla as sisters. Further she admitted that on 28.4.05 when she got a chance, she got succeeded to escape herself from that room.
In her cross examination by ld. Defence counsel, she had stated that prosecutrix D came back to her house after 12 STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 12 OF 49 -:13:- days of her return from that room. She admitted that the articles recovered from the room at Rajokari were not sealed. She did not tell the police in her statement that one of the diaries in which she and D used to write daily diary is having a snap of Sai Baba on its front page. She further admitted that she had signed on the seizure memo which is already Ex.PW4/A at point B, when it was prepared at the time of recovery. She denied the suggestion that prosecutrix D was residing with accused on her own free will and consent or that she gave the information about the whereabouts of D to police and only thereafter police officials could recover D from the house where she was happily residing or that prior to the incident of her kidnapping by accused Habib, she had visited the room at Rajokari with accused Habib or that she had prior information about the place where prosecutrix D was kept in confinement as she had already visited that place on earlier occasion with accused Habib after her school hours.
PW8 Ms. Surender Bhardwaj TGT (Hindi), Girls Senior Secondary School No.1 Adarsh Nagar and proved date of birth record of 'd' i.e. admission register Ex.PW8/A and copy of school leaving certificate is Ex.PW8/B. .
PW9 Ajay Tara is not a material witness as he only deposed that accused had deposed in his examination that he is STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 13 OF 49 -:14:- working as a Market, Pitampura, Delhi his company had provided a radio taxi to one Zamil Khan of Guru Nanak Dev Colony, Bhalaswa Dairy bearing number DL1RY0042 for plying. Some of the time his son/accused Habib also used to drive the said vehicle. In his cross examination by ld. Defence counsel he denied the suggestion that the document pertaining to the aforesaid vehicle were fabricated at the instance of police.
PW10 HC Shri Pal is the MHC(M) and he proved the various relevant entries in register no.19. He denied the suggestion that pullandas and their contents were tampered in my his presence. Or that he is deposing Manager in the Chanson Car at Call Pvt. Limited, 303305, Garg Plaza, DDA lsely.
PW11 Dr. Meet Kumar, CMO, BJRM Hospital had deposed that he has been deputed by MS BJRM Hospital to depose on behalf of Dr. Bhupender and Dr. Neerja and he proved MLC of Habib Ex.PW11/A. He was not cross examined by accused.
PW12 Dr. Shakuntla Rani CMO, BJRM Hospital had deposed on behalf of Dr. Pooja, who had examined the prosecutrix D on 01.05.09. On her local examination her per vaginal examination introitus was admitting two finger, hymen ruptured old and healed, her posterior vaginal smear was taken, STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 14 OF 49 -:15:- slide made, sealed and handed over to police officials. The prosecutrix was advised Xray for age determination and UPT and proved her MLC as Ex.PW5/A. In her cross examination by ld. Counsel for accused she had deposed that the history of last intercourse one week back would have been written by doctor concerned as per the version of patient. She further deposed that from the observation in the MLC,it cannot be inferred that the girl was habitual of sexual intercourse and it cannot ascertained clinically as to how many times the girl had undergone sexual intercourse. She further deposed that since she has no personal knowledge about this patient, therefore, she cannot tell how old the hymen was ruptured and healed up. She further deposed that normally, the ruptured and torn margins of the hymen get healed up on 10 to 15 days. The margins in the hymen create only on initial act of intercourse and on subsequent acts, it is not necessary that there would be any kind of injury. There is no report mentioned on the MLC in respect of the Xray report of the patient as referred by Dr. Pooja. Whenever a doctor advised UPT, one has to fill up the form for that purpose. The present MLC does not reveal as to whether UPT was conducted or not as no report in respect of the same has been mentioned in the MLC STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 15 OF 49 -:16:- PW13 Alamgir is the father of 'R'. He is not a material witness as he is witness of kidnapping of his doughtier 'R'. He deposed that on 15.4.09 He again went to the PS on 17.4.09 police registered the FIR bearing number 97/09. after registration of FIR, he came to know that accused Habib was present at Burari Chowk. He and his nephew Anis went to Burari Chowk and from there apprehended the accused Habib and brought him to the PS Swaroop Nagar. Police took the accused Habib for his medical examination to BJRM Hospital. Later on he came to know that Jamil had lodged an FIR of kidnapping at PS Timarpur and after 1213 days, police came at his house and informed that his daughter R had been recovered. He also came to know that accused Habib had also kidnapped another girl i.e. the prosecutrix D. Thereafter he was declared hostile and he was cross examined by ld. Addl. PP for the State. In his cross examination by ld. Addl. PP he had stated that police had recorded his statement. He admitted that on 28.4.09 his daughter R had escaped from the custody of accused Habib and after her escape, He further admitted that on 04.05.09 his daughter R had also accompanied the accused Habib to the room at village Rajokari, where she was kept by him. He further admitted that besides the other things, a folder having a photograph and a STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 16 OF 49 -:17:- daily diary were also recovered from the room.
In his cross examination by ld. Defence counsel he is in collusion with family member of prosecutrix D and that is why he is deposing falsely in the present case.
PW14 WCT Babita had deposed that on 01.05.09 she accompanied IO to Masjid wali gali, Gurunanak Colony, Bhalaswa Dairy. Mother of the prosecutrix D had informed that prosecutrix had gone alongwith her jija on 30.04.09 to Sawan Park, Ashok Vihar. On the next day, the Jija of prosecutrix brought her back and she was taken to BJRM Hospital for her medical examination. The prosecutrix was got medically examined at the hospital and thereafter she was brought to the PS. PW15 Smita Garg, ld. ACMM02(North) is a formal witness as she only recorded statement of 'D'had u/s. 164 Cr.PC. w Ex.PW1/B. PW16 SI Rajeshwar is the first IO. He had testified that on 04.01.09, Manwati w/o. Charan Singh came in the PS and made statement to duty officer regarding missing of her daughter D and on the basis of said statement present FIR was registered u/s. 363 IPC. The investigation of this case was handed over to him by DO and thereafter he alongwith Manwati went in search of accused, as well as prosecutrix but they could STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 17 OF 49 -:18:- not be traced out. He flashed the message regarding missing of the prosecutrix and also informed the Missing person Squad. Manwati had named the accused Habib in the rukka and he went to the house of accused Habib and he was interrogated who disclosed that he is not having any knowledge about D. Manwati had also disclosed the name of Parvez @ Babu and R in the missing of her daughter. They were also called at PS and interrogated but they did not disclose anything about the missing of her daughter D. he also seized the SLC of prosecutrix from her mother, photocopy of the same is Mark PW16/A. Thereafter, the investigations of this case was transferred to Kidnapping Cell of PS Swaroop Nagar. Accordingly, he handed over the case file to ASI Devender.
In his cross examination he denied the suggestion that, he did not investigate the matter properly or that he was aware about the whereabouts of prosecutrix D as Parvez and R had disclosed him during interrogation that prosecutrix D was voluntarily residing at Kapashera or that he himself had talked to prosecutrix many times on phone in the presence of Parvez, R and Manwati, but prosecutrix was not ready to come back to her parental house or that therefore, he did not take appropriate steps to recover her.
STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 18 OF 49 -:19:- PW17 HC Krishan Pal is a formal witness as he had accompanied with the subsequent IO ASI Devender Singh, for formal arrest of accused Habib.
PW18 HC Sumitra is a formal witness she had deposed that that on 04.01.2009, she recorded FIR No.02/09 Ex.PW18/A. PW19 ASI Devender Singh is subsequent IO. He had deposed that, on 02.02.2009, investigations of this case was handed over to him from ASI Rajeshwar. He further deposed that on 01.05.2009, he alongwith Wct. Babita went to the house of the complainant Manwati for investigations of this case. On interrogation Manwati informed him that on 30.04.09, brother in law Rakesh had received a phone call from prosecutrix 'D' and Rakesh had taken the 'D' to his house at Sawan Park, Ashok Vihar, Delhi. He called prosecutrix and her brother in law Rakesh and mother of the prosecutrix at BJRM Hospital. There he recovered the prosecutrix vide memo Ex.PW1/A. The prosecutrix was got medically examined from BJRM Hospital. After medical examination concerned doctor had given to WCT Babita, a sealed pullanda and a sample seal, sealed with the seal of MS BJRM Hospital and the same was handed over to him by WCT Babita and same was taken into possession, vide memo Ex.PW14/A. He STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 19 OF 49 -:20:- got recorded the statement of the prosecutrix u/s. 164 Cr.P.C. On interrogation, it was revealed that, alleged accused Habib was facing trial in case FIR No.97/09, PS Swaroop Nagar, under Section 344/363/328/34 IPC and he was arrested in this case on 30.04.2009 and he was produced in the court on 04.05.2009 on production warrants. He has taken permission from the concerned court for interrogate and arrest of the accused and later after his interrogation, he was arrested in this case after taking due permission from the concerned court, vide arrest memo Ex.PW17/A. He had taken PC Remand of accused Habib from the concerned court for one day. On intensive interrogation, he recorded the disclosure statement of accused, same is Ex.PW17/B. On pursuance to disclosure statement, he alongwith HC Krishan Pal, R & Alamgir went to the plot no.201, Gali no.1, near Tel Mill, VillageRajokari and got recovered the belonging of the both prosecutrix from a residential room in which the accused had wrongly confined the prosecutrix D for four months and another girl R for about 13 days. The pointing out and recovery memos of articles belonging to the prosecutrix and girl R, whose details are mentioned in the recovery memo were taken into possession, vide memo Ex.PW4/A. He got medically examined the accused from BJRM Hospital and after STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 20 OF 49 -:21:- medical examination concerned doctor had given sealed pullandas and a sample seal sealed with the seal of MS BJRM Hospital and same were taken into possession vide memo Ex.PW17/C. Case properties were deposited with the MHC(M) after returning to the PS. He has procured the FSL Result and same was filed before the court. FSL Result is Ex.PX and Ex.PY. The photographs are already Ex.PW1/P1 to Ex.PW1/P4. He had also identified the articles of the prosecutrix.
In his cross examination by ld. Defence counsel had deposed when he went to the house of mother of the prosecutrix on 01.05.2009, the mother of the prosecutrix had informed him that the prosecutrix was already with her brother in law Rakesh (Jija). He did not go to the house of Rakesh to inquire from prosecutrix on that day or thereafter. He recorded the statement of prosecutrix on 01.05.2009 in BJRM Hospital, where aforesaid brother in law of the prosecutrix brought her. WCT. Babita was present there. He did not inquire from the occupier of the STD Booth, from where prosecutrix had made call to her Jija Rakesh. He does not know where the said STD Booth is situated, as he did not make any inquiry in this regard. he did not make any inquiry in respect of phone call received by the brother in law (Jija) of the prosecutrix. He denied the suggestion that, no such STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 21 OF 49 -:22:- phone call was received to the Jija of the prosecutrix nor any such call was made by the prosecutrix from any STD Booth or that prosecutrix was not confined anywhere. He further stated he did not make any inquiry regarding the lady about which the prosecutrix stated in her statement that, she was having an eye upon her at the instance of accused Habib. He does not remember whether he had asked from the said landlady about the lady, which was kept there by accused to keep eye on prosecutrix. He had not asked from the prosecutrix what was the age, height or other details of the said lady as he was not told by the prosecutrix about the same. He did not inquire from the prosecutrix after reading her statement u/s. 164 Cr.P.C. about the lady, which was keeping eye on her. Accused Habib was arrested by ACP Ravinder Grewal in case FIR No.97/09, PS Swaroop Nagar, on 29.04.2009 and at that time he was with him. He did not inquire from the accused either on 29.04.09 or on 30.04.09 about the whereabouts of the prosecutrix. He was aware that on 29.04.09 and 30.04.09 that prosecutrix was kidnapped by accused. He did not inquire about the prosecutrix from the accused, as he was busy in investigation of Case FIR No.97/09. He cannot give any reason, why he did not inquire from the accused on 29.04.2009 or 30.04.2009 about the prosecutrix. He STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 22 OF 49 -:23:- did not inquire from the prosecutrix, who was confining her on 29.04.2009 or on 30.04.2009. The house in which prosecutrix was confined was having 16 rooms hut type. These all 16 rooms were occupied. All rooms were situated on the ground floor. The landlady was residing in some other house. The latrine and bathroom of all the 16 rooms were common. The house was of 1000 sq. yds. The distance between the room where prosecutrix was confined and latrine and bathroom was about 1015 steps. For going to the latrine bathroom, one has to pass through the open space in front of the those rooms. The room where the prosecutrix was confined was first room of the house and last room of the house was nearest to the latrine and bathroom. He admitted that, if a person goes for a latrine and bathroom, then he will be visible to occupants of the other rooms. He had asked the occupants of those rooms to know about the facts of this case, but they did not tell anything, even they had refused to told their names by saying that, they are labourer only. He did not give any notice to any such occupants of the rooms that if they will not cooperate to the police, then they are also liable for the punishment. There were some commercial houses near the said house. He did not notice whether there were any other house in which people were residing. Nobody including landlady from the STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 23 OF 49 -:24:- said house or from the neighbourer has told him that, he has ever heard shouting/cry of prosecutrix during her confinement in the said room. When he went to the said room, where prosecutrix was confined, it was locked. Accused had himself brought the keys from the occupant of the nearby room. He did not interrogate the person from whom accused had brought the key of his room. He also did not inquire from him, who and when had handed over the key of his room. He further deposed that the articles including clothes of prosecutrix which were recovered from the said room on 04.05.09 were not got identified by him through prosecutrix. The landlady has informed that, one another girl also used to come there in the said room, where prosecutrix was confined and used to reside there. The landlady has informed him that, accused has told her that, the lady which he has brought to reside is his sister. The said girl also told to the landlady that she is the sister of accused and she had come to reside with him as her mother has expired. He had verified the date of birth of prosecutrix D from her school. He did not receive the birth certificate of prosecutrix. He did not make any investigation with regard to the shop from where accused had purchased two glass of cold drinks after consuming the said drinks prosecutrix became unconscious. At the time of kidnapping prosecutrix, she was STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 24 OF 49 -:25:- residing at her parental house situated at Guru Nanak Nagar, Bhalaswa Dairy.
PW20 Dr. Neeraj Chaudhary, Medical Officer, BJRM Hospital had deposed that he has been deputed by the MS of the hospital to depose on behalf Dr. Neerja (SR Surgery) who had left the hospital and proved MLC No.2802 as Ex.PW11/A and her finding on the said MLC at point Y and bears her signatures at point C. He was not cross examined by the defence.
8. The accused has been charged for kidnapping, which is defined in Section 361 IPC as under :
361. Kidnapping from lawful guardianship.--Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Further accused has been charged for rape which is punishable u/s. 376 IPC and rape has been defined in Section 375 IPC as under:
375. Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:--
First.--Against her will.
Secondly.--Without her consent.
STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 25 OF 49 -:26:- Thirdly.--With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.--With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.-- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.-- With or without her consent, when she is under sixteen years of age.
9. Hence from the definition of Kidnapping it is evident that if the victim is a female and less than 18 years of age and prosecution is able to prove that accused had taken her from the custody of lawful guardian without their consent then offence of kidnapping is prove. The consent of victim is immaterial in such circumstances.
10. Similarly as per clause six of section 375 IPC in a case of rape if female is less than 16 years of age her consent is immaterial. Hence in this circumstances age of prosecutrix D become very material.
11. As per judgment of Jarnail Singh Vs. State of Haryana, 2013 VII AD (SC) 313 it is held that the rule 12 of the STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 26 OF 49 -:27:- Juvenile Justice (Care & Protection of Children) Rules, 2007 to determine the age will be applicable in cases of victim also where victim is a child. The relevant portion of the judgment is reproduced as below:
20. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules).
The afore stated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred hereinabove read as under:
"12. Procedure to be followed in determination of age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 27 OF 49 -:28:- be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) The matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either
(i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of juvenile or child.
In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 28 OF 49 -:29:- for the reasons to be recorded by them, may, if considered necessary, given benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regard such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any or the conclusive proof specified in subrule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, section 64 STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 29 OF 49 -:30:- of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those dispose off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of juvenile in conflict with law."
Even though, rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW - PW6
12. Therefore, in view of the aforesaid rule 12, the age recorded in the school, is to be given most preference, if same is STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 30 OF 49 -:31:- available and the court find it trustworthy and there is no need to look for any other evidence for determination of age of a person.
13. In order to prove age of the prosecution prosecution had examined PW8 Ms. Surender Bhardwaj, TGT (Hindi), Government Girls Senior Secondary School No.1, Adarsh Nagar, Delhi and she had deposed that, where the prosecutrix D had studied. She has proved the admission record of the prosecutrix Ex.PW8/A. As per said admission record, she was admitted in her school at serial number 4327 and her date of birth was mentioned in the school as 22.12.1991. No suggestion has been given to the witness that said certificate is false. Thus I do not find any reason to disbelieve her school record. There is no other evidence on record regarding age of 'D' Therefore, I have no option except to rely upon her school record hence I held that date of birth of the prosecution was 22.12.1991.
14. In a rape case, testimony of prosecutrix is most important being only eye witness in most of the cases. Her testimony has to be given utmost sanctity and if court find it cogent and trustworthy and no corroboration is required. In this regard, I rely upon Madho Ram and another V The State of U.P., AIR 1973 SC 469 wherein it was held as under
: STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 31 OF 49 -:32:- [T] the prosecutrix cannot be considered to be an accomplice. As a rule of prudence, however, it has been emphasized that Courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person, accused of abduction or rape, has not been falsely implicated. The view that, as a matter of law, no conviction without corroboration was possible has not been accepted. The only rule of law is the rule of prudence namely the advisability of corroboration should be present in the mind of the Judge or the Jury, as the case may be. There is no rule of practice that there must in every case, be corroboration before a conviction can be allowed to stand.
15. It was further held in case Bharwada Bhoginbhai Hirjibhai V State of Gujarat, AIR 1983 SC 753(1) as under : Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 32 OF 49 -:33:- rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society.
On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sexoffence is entitled to great weight, absence of corroboration not withstanding. And while corroboration in the form of eye witness account of an independent witness may often be forthcoming.
Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having leveled such an accusation on account of the instinct of self -
STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 33 OF 49 -:34:- preservation, or when the 'probabilities factor' is found to be out of tune.
16. The Supreme Court in case State of Maharashtra V Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 summarized the legal position in following words : "A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 34 OF 49 -:35:- it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the false case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."
17. Now in the light of aforesaid judgments I shall examine the testimony of PW1 /D. She had deposed that in the th year 2009, she was studying in class 9 in the Government Girls Senior Secondary School, Adarsh Nagar, and used to come to school from her house at Bhalaswa Dairy. She further deposed that, on 27.12.2008, she was coming from Bhalaswa Dairy to STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 35 OF 49 -:36:- Adarsh Nagar market for the purpose of shopping and accused Habib met her and stopped his vehicle in front of her and he stated that R her friend and one boy namely Lal were sitting in the said vehicle and they want to took with her. She sit in the said vehicle but could not see anyone and tried to come out of the vehicle, but accused caught hold her hand and said, he wanted to talk about R and Lal and started plying the vehicle. She asked why he has started his vehicle. He replied that, let's go somewhere to take some eatables and drink and have talk there. After some distance, accused Habib stopped the vehicle and brought some cold drink and became unconscious. Thereafter she became unconscious and when she retained her consciousness, she found herself in a room and the door of the room was bolted from outside. In the night accused Habib came to the room and woke up her and she asked him why he has brought her there. He replied that she should take food and which were brought by him, but she had not taken food, thereafter, accused Habib started beating her and also started misbehaving with her. Thereafter accused Habib tried to do wrong act with her and when she resisted, then accused started beating her and told her to allow accused whatever accused wanted to do and he cannot leave the said room and then accused removed her cloths STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 36 OF 49 -:37:- and had physical relationship with her against her wish ans without her consent. In the next morning accused left the room and left one lady in the house to keep eye on her, if she used to go toilet the said lady accompany to her during night time. She was confined in the said room for about four months and during that time, accused raped her several times. She further deposed that one day accused brought R in her room, R was her friend and she was in school uniform. She asked R, as to why she had come and she told her that, she has come to see her. She asked R to take her away but she replied that, she cannot do so, then she asked to inform her family members but she refused to so the same. Thereafter, R left the room. She further stated that one day accused Habib brought Lal to the said room and said Lal saw her but he did not speak to her nor she did speak to Lal and Lal left the said room. Lal and R were aware that, she had been confined in the said room by accused Habib. After some days accused brought R again to the said room and on that occasion, R remained with her in the said room for about 13 days and on th the 13 day, she left the room with accused Habib. She further stated that she had asked accused Habib and R to take her also but they refused to do so and on the subsequent day, she had got an opportunity to escape from the said room STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 37 OF 49 -:38:- and she ran away from the said room and reached at STD booth from where she had made a telephonic call to her brother in law (Jija) Rakesh and her brother in law came with another person and took her to her house. Her mother and younger Jija also came there. She remained in the house for two days and thereafter, she was taken to PSSwaroop Nagar by her jija and other family members and there IO had prepared the recovery memo Ex.PW1/A and thereafter he taken her to BJRM Hospital where she was medically examined. She was taken to the court where ld. MM had recorded her statement Ex.PW1/B. Police had shown her the car in which accused had taken her and which she had correctly identified and same is seized vide seizure memo Ex.PW1/C. In her cross examination, she had stated that, in her statement recorded by the ld. MM, she had stated that accused Habib was brother of R in relation and accused Habib, R and Lal have conspired in taking her away. She admitted that Habib used to drop her school on some occasion, but she denied the suggestion that due to said reason she had developed friendship with accused Habib. She admitted the suggestion that her mother used to object on her dropping at school by accused. She admitted the suggestion that she wrote diary Ex.PW1/D1 to STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 38 OF 49 -:39:- Ex.PW1/D3 and said diary written in her handwriting, she voluntarily stated that most of the diary got written from her forcefully. She was also shown photograph Ex.PW1/D4 and on seeing the said photograph she had stated that she admitted that in the said photograph other person is accused Habib beside her but she stated that said snap got forcibly snapped. She also stated that, photograph/drawing/picture in the file Ex.PW1/D5 were got prepared from her forcefully. She further stated that she does not know the location of STD Booth. She denied the suggestion that she did not go to the STD booth to make any call and that is why she could not tell about the STD booth.
18. On analyzing of her testimony, I found that testimony of the prosecutrix D is quite unreliable. Admittedly the accused was previously known to her as PW1 has admitted in her cross examination that sometime accused used to drop her to school in his taxi. She further admitted that her mother used to object to her dropping at school by accused which shows they were having friendship otherwise why she will go in his taxi though said fact of friendship has been denied by the 'D'. But her denial does not appear to be much convincing as she was going in his taxi despite her mother opposition. Which is evident from the statement of her mother (PW3) to police on the basis of STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 39 OF 49 -:40:- which FIR EXPW3/A was registered has stated that accused had took her after enticing her (bahla fusla kar le gaya). Hence she also suspect that her daughter has gone with accused if accused and 'D' had no previous relation why she would have suspected so.
19. Further the place from where accused had taken her in his car is a crowded place. On the one hand, she stated that she do not find R and Lal in the vehicle, when she tried to come out from the vehicle. But, accused caught hold her hand and started plying the vehicle,but she failed to explain why she did not raised alarm which means she had agreed to go with the accused with her own consent.
20. Further she stated that accused had given her cold drink and when she regained her consciousness she found herself in a room and that room as per the prosecution case is a room situated at the house of PW Shakuntla Devi, who is the landlord of the house situated at village and post office Rajokari. Where as in her statement u/s 164 Cr.P.C.EXPW1/B she had stated accused gave her NimbuPani. There is lot of difference between Nimbu Pani and cold drink. Further as per testimony of PW19 ASI Devinder there are sixteen room in the said house if accused had taken her in unconscious condition then definitely STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 40 OF 49 -:41:- other person would have noticed accused carrying prosecutrix 'D' and would have objected to it. Hence the version of 'D' that she was brought to the room where she was kept does not appeared to be much convincing.
21. Further 'D' has testified that she was confined in the room. But, PW4 Shakuntla Devi had testified that, she had given the said room on rent to Samir @ Habib i.e. accused and accused used to reside with one girl Mehak and introduced her as his sister and she she had inquired from Mehak and Mehak told that her parents had already died and accused is her brother and she wanted to live with him. I do not see any reason why PW4 will falsely deposed in favour of the accused.
22. The Mehak as per testimony of PW7 R is the prosecutrix D. Therefore, it is evident that both the accused and 'D' remained in the house of PW4 Shakuntla Devi as brother and sister. Hence she was living in the said house with her own consent otherwise why she would told to PW4 that she was the sister of accused rather she could say that accused had kidnapped her and confined her forcibly.
23. She has remained in that house for quite a long period and in that period she never raised any alarm that she has been confined there or when accused committed rape with STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 41 OF 49 -:42:- her, she was a fully grown girl and can very well protest the act of accused. It is not her case that accused had shown her any weapon. IO/ASI Devender Singh (PW19), who admitted that the house in which prosecutrix was confined having 16 rooms of but type and all the rooms were occupied. The latrine and bathroom of all the 16 rooms were common. The said house was of 100 sq. yds. The distance of room and latrine was about 1015 steps for going to latrine and bathroom one has to pass through the open space in front of the those rooms and the room where the prosecutrix was confined was the first room of the house and the last room of the house was nearest to the latrine and bathroom. Further he admitted that if a person goes for a latrine and bathroom, then he will be visible to occupants of the other rooms. Hence, in these circumstances, when so many persons were residing in the nearby rooms, in my view it is not possible to confine her for such a long period. She would have ample opportunity to inform to neighbourer or run away.
24. I do not find force in the contention of the Ld. Addl. PP that she could not run away as one lady was keeping watch on her. PW1/D also admitted that she had not given any description or physique of the lady who used to keep an eye on her. The PW19/IO had admitted in cross examination that he had STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 42 OF 49 -:43:- not made any inquiry regarding the lady. But has not assign any reason why he had not done so. That lady should have been accused. Hence it create doubt about the existence of any such lady. Even if any lady was keeping watch she could confront her to run away as she had not stated that the said lady was having any weapon. Further it is impossible to keep watch upon the D, because if the room would have been locked from outside after confining the prosecutrix inside the room then those neighbourers must have noticed her and inquired from her what she is doing there and why the prosecutrix was confined in the room or if the door of the room was opened then prosecutrix had have an opportunity to raise alarm and inform those persons that she has been confined forcefully in the said room.
25. Further the manner in which prosecutrix has allegedly runaway also create doubt that she was confined. She stated that on the subsequent day she got an opportunity to escape from the said room and reached at STD booth from where she made a call to her brother in law Rakesh(PW2) and told the place where she was present. She further testified her jija came there and took her to his house and she remained there for two days. But she has not explained how she got an opportunity to run away.
STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 43 OF 49 -:44:- Further STD booth owner has not been examined to corroborate her testimony. Which create doubt whether any call was made by 'D' from any STD booth. From the testimony of PW13 it is evident that her daughter 'R' was recovered on 28.04.2009. As per PW7 'R' she was confined in the same room where 'D' was confined then what prevented the police to recovered the 'd' on the same day. It means either police was not doing there duty properly as they did not think to take immediate action to recover prosecutrix which amount to dereliction of duty and required strict action against erring official or they had either recovered the prosecutrix but shown her recovery later on as she was not giving statement against the accused.
Further no reason has been given why immediately after recovery of 'D' police was not informed. It cannot be ruled out that said period has been used for convincing the prosecutrix to give statement against the accused and when she agreed police was informed.
Further on perusal of the diary and photograph Ex.PW9/B4a to Ex.PW19/B4k and Ex.PW19/B4 also it looks very unlikely that the such kind of contents written in the diary can be written forcefully and the photograph of the accused with the STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 44 OF 49 -:45:- prosecutrix also does not appear to be taken forcefully, as it is very difficult to create such kind of smile as is on he face of the prosecutrix, until and unless the person is a very good actor. It is not the case of the prosecution that photograph is morphed, therefore, from the said photograph also it is evident that both the accused and prosecutrix are appeared to be in deep relationship. It appears that prosecutrix has run away with the accused from her house and remained with him for such a long period and when accused left her abandoned or due to the family pressures, prosecutrix has concocted this false story that accused had kidnapped her by making her unconscious and committed rape with her, in my view the circumstances suggests that prosecutrix had gone voluntarily with the accused and had sex with him voluntarily.
26. In view of the aforesaid discussion I do not find testimony of 'D' reliable to the extent that accused had kidnapped her forcefully after giving some intoxicating substance and confined her in the room and committed sexual intercourse with her without her consent. Therefor in my view it would not be safe to convict the accused solely on the basis of statement of 'D'.
27. There is only other witness is PW7 who as per prosecution confined with 'D' during her stay at village Rajokari. STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 45 OF 49 -:46:- PW7 did not stated anything in her examination in chief that she was confined with D in a room. But in the cross examination by Ld. Addl. PP, she admitted the suggestion that accused kidnapped her with his father and confined her in a room where she saw D. She had not stated that 'D' told her that accused kidnapped her and confined her forcefully and committed rape with her. She stated that she got a chance to run on 28.04.2009. But prosecution failed to explain if she got chance to escape then why D did not get the chance. Further she did not explain when she run away on 28.04.2009 why she did not informed to police that 'd' was also confined with her. The only reason appear to be that 'D' was residing with accused with her own consent and PW7 was party in the act of accuse taking the prosecutrix and keeping at the room which is also evident from the statement of PW1 recorded u/s 164 Cr.P.C. in which she had deposed that R came on her room one day and then again stated on 1617 April 'R' came to reside with her and remained with her for some day. But from the testimony of PW7 only it is proved that 'D' was residing in a room at Rajokari with accused Habib.
28. As far testimony of other witness i.e. PW3, PW7 is concerned from their testimony also it is come out that accused and 'D' were known to each other and accused had took her from STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 46 OF 49 -:47:- the house of her parents and kept her somewhere else.
29. I am not agree with the contention of the ld. Counsel for the accused that, prosecutrix was not taken to the room situated at Village and Post Office Rajokari by the accused, as mentioned in the testimony by PW4, where it is mentioned that said room was taken on rent by the accused where the prosecutrix was kept, which prove that accused had taken active part in the taking the prosecutrix D out of her lawful guardianship of her parents. It is not the case of the prosecution that she had taken the consent. As per testimony of PW1/prosecutrix D, she had gone with the accused on 27.11.2008, which is also proved from the testimony of PW3 Smt. Manwati, mother of the prosecutrix D, who had stated that on 27.12.2008 at about 7pm, her daughter went to market for shopping and thereafter did not return. She informed to the police and police recorded her statement Ex.PW3/A. Nothing much has come out in her cross examination. Further in the FIR Ex.PW18/A, which was recorded on the statement of the prosecutrix also the same date regarding kidnapping of the prosecutrix by accused Habib is mentioned. Therefore, in these circumstances, I held that prosecution has been able to prove that, PW1 went from the lawful custody of her guardian on 27.12.2008. As mention above age of prosecutrix is STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 47 OF 49 -:48:- 22.12.1991. Hence, on the day of the incident the prosecutrix's age comes 17 years. Hence, she was less than 18 years of age on the day of incident, when she was taken by the accused from the lawful guardianship of her parents and was kept at house of PW4 Shakuntla Devi situated at village and Post office Rajokari. Therefore, in these circumstances and in the facts and circumstances of the case I held that prosecution has been able to prove that accused had taken the prosecutrix 'D' out of the custody of lawful guardians without their consent thus kidnapped the 'D" hence,I convict the accused Habib for offence u/s. 363 IPC.
30. However, in view of aforesaid discussion prosecution has failed to proved that accused kidnapped the prosecutrix to compel her for marriage, or forced her to have illicit intercourse or seduce her to do illicit intercourse as prosecutrix 'D' being above 16 years of age was capable to give consent for sex. Therefore, in my view prosecution failed to prove offence u/s. 366 IPC.
31. Accused has also been charge for offence punishable under Section 376 IPC, but as discussed above, in my view, the prosecutrix D had gone with the accused voluntarily and resided at the house at village Rajokari for almost four months and had committed sex with the accused with her own consent STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 48 OF 49 -:49:- and since she was above age of 16 years, therefore, she was capable to give the consent for sex. Therefore, I also acquit accused from charge of rape punishable u/s. 376 IPC.
32. As far as other offence i.e. 328 IPC is concerned in view of aforesaid discussion the testimony of the prosecutrix 'D' to the extent that she was given intoxicating substance in the cold drink by the accused due to which she become unconscious, I do not find same reliable acquit him for offence u/s. 328 IPC.
33. In view of the aforesaid facts and circumstances, Accused stands convicted for offence punishable u/s. 363 IPC. However, accused stands acquitted for offence punishable u/s. 366/376/328 IPC. Now to come up for order on sentence.
ANNOUNCED IN OPEN COURT (SANJEEV KUMAR) ON 16.11.2013. ADDL. SESSIONS JUDGE 01 (NORTH) ROHINI:DELHI.
STATE VS HABIB SC NO.88/13, FIR NO.02/09, PS SWAROOP NAGAR, U/S. 363/328/344/366/506/376 IPC PAGE 49 OF 49