Delhi District Court
Sc No: 58453/16 State vs . Jakir Hussain on 2 January, 2017
SC No: 58453/16 State Vs. Jakir Hussain
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 58453/16
FIR No. 364/15
Police Station Alipur
Under Section 363/366/376 IPC &
4 POCSO Act.
State
Versus
Jakir Hussain
S/o Meharddin
R/o 32, Matawali Gali, Village Akbarpur Majra,
Alipur, Delhi. ......Accused
Date of institution 20.05.2015
Judgment reserved on 02.01.2017
Judgment Pronounced on 02.01.2017
Decision Acquitted
Judgment 1 of 13
SC No: 58453/16 State Vs. Jakir Hussain
JUDGMENT
1. Accused is facing trial in the present case on allegations of kidnapping and sexually assaulting the prosecutrix "S", aged about 16 years.
2. FIR in question was registered u/s 363 IPC on the statement of mother of prosecutrix who alleged that on 17.04.2015 at about 10:00 PM, prosecutrix went from home without informing anyone and she did not return. Despite her search, prosecutrix could not be traced and she suspected the role of accused in kidnapping her.
3. Police searched prosecutrix through electronic and print media. On 21.04.2015, prosecutrix and accused came in the police station. Statement of prosecutrix was recorded wherein she stated that accused was a driver of TATA Ace who used to come in her gali and also used to make gestures to her. On 02.04.2015 Judgment 2 of 13 SC No: 58453/16 State Vs. Jakir Hussain when her parents were not at home, accused entered into her house and forcibly made physical relations with her. Accused also threatened her not to disclose about the aforesaid fact to anyone otherwise he would harm her reputation in the society and she did not tell about the said fact to anyone. On 17.04.2015, accused enticed her and took her with him on the pretext of marrying her. She further deposed that accused committed rape upon her many times without her consent and lastly committed rape upon her on 19.04.2015. Since prosecutrix was found to be less than 18 years of age, Sections 366/376 IPC & 4 POCSO Act were invoked.
4. Accused was arrested and charge-sheeted. Charge for the offence punishable under Section 363/366/376 IPC & Section 4 POCSO (Protection of Children from Sexual Offences) Act was framed against the accused to which he pleaded not guilty and claimed trial.
Judgment 3 of 13
SC No: 58453/16 State Vs. Jakir Hussain
5. Prosecution examined prosecutrix as PW1. She deposed that accused enticed her and got befriended with her. She further deposed that on 17.04.2015, accused asked her to leave home and she accordingly, left her home. Accused took her to Haridwar. She stayed with him for 2-3 days. Thereafter, she called her parents who told her that they have already lodged her missing complaint. She alongwith accused came back in the morning of 21.04.2015 and directly went to PS. Prosecutrix deposed that she was medically examined vide MLC as Ex PW1/A. She proved arrest & personal search of accused vide memo Ex PW1/B & C. Prosecutrix deposed that her statement was recorded u/s 164 Cr.P.C. by the Ld. MM as Ex. PW1/D. She also deposed that during her stay with the accused, no sexual assault was committed upon her. She was duly cross-examined by Ld. Addl. PP and she denied all the suggestions given to her and maintained that accused did not commit sexual assault upon her .
Judgment 4 of 13
SC No: 58453/16 State Vs. Jakir Hussain
6. PW2 mother of prosecutrix deposed that on 17.04.2015 at about 10:00 PM, her daughter/prosecutrix after having her meals went away from the house and did not return. She lodged her missing complaint on the next day. On 21.04.2015, her daughter came back and told her that she had been sexually assaulted by the accused. She further deposed that her daughter/prosecutrix was taken to the hospital for her medical examination and she refused for internal medical examination of her daughter and proved her thumb impression on the MLC Ex. PW1/A in this regard at point B.
7. PW3 father of prosecutrix deposed on the similar lines of PW2.
8. PW4 Dr. Arun Kumar proved the medical examination of accused vide MLC Ex. PW4/A. Judgment 5 of 13 SC No: 58453/16 State Vs. Jakir Hussain
9. PW5 Dr. Ritu Saxena proved the medical examination of accused conducted by Dr. Arif vide MLC Ex. PW5/A.
10. PW6 Dr. Deepika Gupta proved medical examination of prosecutrix vide MLC Ex. PW1/A.
11. Accused in his statement recorded admitted birth certificate of prosecutrix as Ex. PX-1, FIR in question as Ex. PX-2 and certificate U/s 65(B) I.E. Act as Ex. PX-3.
12. In his statement recorded U/s 313 Cr.P.C. accused stated that prosecutrix fell in love with him and she voluntarily left her home. Accused stated that on her insistence he stayed with prosecutrix at Haridwar for 2-3 days.
13. Arguments have been addressed by learned Additional PP as well as learned defence counsel.
Judgment 6 of 13
SC No: 58453/16 State Vs. Jakir Hussain
14. Age of the prosecutrix: Prosecution has relied upon the birth certificate of prosecutrix as Ex. PX-1 issued by MCD as per which date of birth of prosecutrix is 03.03.1999. Defence has not disputed the age of prosecutrix in any manner. As such, on the date of incident (17.04.2015), prosecutrix was around 16 years old and hence a "Child" within the meaning given under POCSO Act.
15. Testimony of prosecutrix: Prosecutrix deposed that accused enticed her and got befriended with her. She further deposed that on 17.04.2015, accused asked her to leave home and she accordingly, left her home. Accused took her to Haridwar. She stayed with him for 2-3 days. Thereafter, she called her parents who told her that they have already lodged her missing complaint. She along with accused came back in the morning of 21.04.2015 and directly went to PS. She also deposed that during her stay with the accused, no sexual assault was committed upon her.
Judgment 7 of 13
SC No: 58453/16 State Vs. Jakir Hussain
16. It has been held in para 8 of the judgment titled as Bunty Vs. State (G.N.C.T.) of Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011 by the Hon'ble Delhi High Court that :
"8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had traveled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...."
17. In this regard, it would relevant to refer to the case titled as " S. Varadarajan Vs. State of Madras (reported as AIR 1965 SC 942)", where in while distinguishing between "taking" and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India that:
" There is a distinction between " taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it Judgment 8 of 13 SC No: 58453/16 State Vs. Jakir Hussain can not 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."
18. In the present case also, prosecutrix did not say that accused threatened her in any manner nor she claimed that at any point of time she raised alarm to show that accused was forcing her to accompany him. Hon'ble High Court of Delhi has been pleased to render an authoritative pronouncement on 14.08.2015 in Criminal Appeal No. 325/2013 titled as Vijay Kumar Vs. State of NCT of Delhi wherein a girl aged about 15 years of age had gone along with the accused to Bhatinda Punjab and remained there for 89 days where physical relations between them were established on several occasions. In the said case the Ld. Trial Judge had convicted the boy for offence punishable U/S 363/366/376 IPC, however in the appeal filed in the matter the Hon'ble High Court Judgment 9 of 13 SC No: 58453/16 State Vs. Jakir Hussain duly considered the conduct of the girl and came to the conclusion that the girl was of the age of discretion, she had gone along with the accused without any kind of protest, she had not raised alarm at any point of time at any place despite there being an opportunity for the same. As far as the medical evidence in the said case is concerned the Hon'ble High Court duly considered the medical evidence of prosecutrix showing her hymen to be found torn and the allegations that the boy had established physical relations with her in Bhatinda and found the same to be consensual.
19. Hon'ble High Court placed reliance upon the law laid down in Shyam & Anr Vs. State of Maharashtra AIR 1995 SC 2169 to hold that the girl was of the age of discretion. The paragraphs of the aforesaid judgment relevant for the facts of the present case are reproduced as under:
" xxx In her statement in Court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge, but having Judgment 10 of 13 SC No: 58453/16 State Vs. Jakir Hussain regard to her conduct, as also the manner of the so called "taking", it does not seem that the prosecutrix was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts would be under check by both the appellants/accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by "taking" her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but, still, she was in the age of discretion, sensible and aware of the intention of the accused Shyam. That he was taking her away for a purpose. It was not unknown to her with whom, she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam the appellant on her own and in that sense there was no "taking" out of the guardianship of her mother. The culpability of neither Shyam, A1 nor that of Suresh, A2, in these circumstances, appears to us established. The charge against the appellants/accused under Section 366 I.P.C would thus fail. Accordingly, the appellants deserve acquittal. The appeal is, therefore, allowed acquitting the appellants. Xxx"
Judgment 11 of 13
SC No: 58453/16 State Vs. Jakir Hussain
20. If the ratio of the aforesaid judgment is applied to the facts and circumstances of the present case then it would be apparent that the prosecutrix was more than 16 years of age at the time when accompanied accused. At the time of her medical examination no physical trauma was noted on her by the Doctor. It is evident that she did not make any complaint against the accused during her entire stay period with accused. Therefore, the ratio of the aforesaid judgment applies to present case as well. Hon'ble High Court of Delhi in the aforesaid case has been pleased to set aside the conviction of the accused. On the basis of the aforesaid ratio laid down in the case, the accused cannot be held guilty.
21. Medical Evidence: Prosecutrix has categorically deposed that the accused did not establish physical relationship with her and as such she refused for her internal medical examination. There is no conclusive medical evidence on record to establish that accused committed sexual assault on the prosecutrix.
Judgment 12 of 13
SC No: 58453/16 State Vs. Jakir Hussain
19. Nutshell of foregoing discussion is that prosecution has miserably failed to prove that accused kidnapped prosecutrix with intention to compel her to marry him and to force/seduce her to have illicit intercourse with him nor there is any evidence on record to substantiate allegations of commission of sexual assault on prosecutrix.
20. Conclusion: From aforesaid discussions, allegations against accused are not proved. Accordingly, accused stands acquitted. Bail bond of accused stands canceled. Surety stands discharged. He is directed to furnish a personal bond in sum of Rs. 10,000/- under provisions of Section 437-A Cr.P.C with surety in the like amount.
File be consigned to record room.
Announced in the open court on 2nd day of January, 2017.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
Judgment 13 of 13