Delhi District Court
State vs . Sirajuddin S/O Mehndi Hassan on 14 November, 2008
SC No. 167/06
IN THE COURT OF SHRI A.K. PATHAK, DISTT. JUDGE (VI)CUM
ADDL.SESSIONS JUDGE(I/C) (EAST) KARKARDOOMA COURTS, DELHI
Date of Institution : 16.09.2006
Date of Arguments : 18.10.2008
Date of Order : 06.11.2008
SC No. 167/06
FIR No. 391/06
PS Gokul Puri
U/s 363/366/376 IPC
State Vs. Sirajuddin S/o Mehndi Hassan
R/o House of Akbar @ Pappu
Gali No.1, Babu Nagar, Gokul Puri,
Delhi.
J U D G M E N T
1. In brief, prosecution case is that Sh. Islamuddin S/o Sh. Hakimuddin R/o House No.227, Gali No.1, Babu Nagar, Old Mustafabad, Delhi, came to Police Station Gokul Puri on 08.06.06 at about 9.00 pm and informed that his daughter Shaista @ Ballo (hereinafter referred to as 'prosecutrix'), aged about 14 years, was found missing since 06.06.06 from 11.00 am. He also stated that he suspected that one boy, working in 1 SC No. 167/06 the factory of Akbar @ Pappu, situated in front of his house, had taken away his daughter by enticing her. Pursuant to this information, FIR in question u/s 363 of Indian Penal Code (for short 'IPC') was registered and was handed over to SI Ajay Kumar (hereinafter referred to as 'Investigating Officer') for investigation. He made search of the prosecutrix and accused but they could not found. On 09.06.06, the prosecutrix along with accused herself arrived in the Police Station . Investigating Officer recorded her statement U/s 161 Cr.PC. Accused was arrested. Prosecutrix was sent to GTB Hospital for her medical examination. Accused was also sent to the Hospital for his medical examination. Lady Constable, who had taken the prosecutrix and the Constable, who had taken the accused to Hospital, for their medical examination, brought three sealed parcels with sample seal as well as MLCs from the Hospital and handed over to the Investigating Officer, who seized the parcels and deposited the same in the malkhana. Later on, 2 SC No. 167/06 these parcels, which contained pubic hair, vaginal swab and Salwar of the prosecutrix as well as blood sample of the accused, were sent to CFSL Kolkata and report of CFSL was obtained during the investigation.
2. In her statement u/s 161 Cr.PC, prosecutrix stated before the Investigating Officer that on 06.06.06 at about 11.00 am, his neighbour Sirajuddin (accused), who used to work in a factory opposite her house and which was owned by Akbar @ Pappu, took her to his Khala's house after enticing her, on the pretext of marrying her. He kept the prosecutrix there for two days as his wife. Accused did not disclose to his Khala that he had brought her after enticing her. He also threatened her not to tell this fact to his Khala. Accused had told his Khala that he had married prosecutrix. In Village Noorpur, accused raped her and when prosecutrix asked him to not to do so accused gave beating to her. Akbar @ Pappu brought accused and 3 SC No. 167/06 prosecutrix back to Delhi and kept them in Shastri Park in the night. Next day in the morning, prosecutrix brought the accused in the Police Station.
3. Statement of the prosecutrix u/s 164 Cr.PC was also got recorded on 09.06.06 itself before the Ld. Metropolitan Magistrate,wherein prosecutrix stated that on 06.06.06 at about 11.00 am, she had gone to Noorpur along with Sirajuddin, who was living in front of her house. He had done something on her, therefore, she accompanied him. In Noorpur, Sirajuddin kept her in the house of his Khala. Sirajuddin committed rape upon her in the night. They stayed there for two nights and during that period, Sirajuddin (accused) raped her once. Landlord of Sirajuddin came there and brought them back.
4. After completion of investigation, accused was sent 4 SC No. 167/06 up to face trial for having committed offences u/s 363/376 IPC by filing a chargesheet in the Court of Learned Metropolitan Magistrate on 07.08.06, who took cognizance of the offence and after completing the formalities U/s 207 Cr.PC, committed the case to Sessions Court, vide order dated 02.09.06, as the offence U/s 376 IPC is exclusively triable by the Court of Session.
5. My Ld. Predecessor framed charges against the accused u/s 363/366/376 IPC on 03.03.07, to which he pleaded not guilty and claimed trial.
6. In order to prove its case, prosecution examined thirteen witnesses in all. Sh. Islamuddin, father of the prosecutrix, has been examined as PW1. HC Vinod Kumar has been examined as PW2. He is a formal witness. He was working as Duty Officer in Police Station Gokul Puri on 5 SC No. 167/06 08.06.06 between 4.00 pm to 12 midnight. He has deposed that Islamuddin came to the Police Station at 9.00 pm and lodged the report regarding missing of his daughter Shaista since 06.06.06 and on the basis of his statement, he recorded FIR No. 391/06 in his own hand writing and obtained the signatures of Islamuddin. PW2 produced the original FIR in the Court, which was seen and returned and carbon copy thereof was exhibited as Ex.PW1/A. PW2 has corroborated PW1 regarding registration of FIR. PW3 Shaista is the prosecutrix and her testimony will be discussed later. PW4 Dr. Richa Aggarwal of GTB Hospital, had clinically examined the prosecutrix and she has deposed in this regard. She has proved the MLC of PW3, prepared by her as Ex.PW4/A. She has deposed that Undergarments, vaginal smear and pubic hair of prosecutrix were sealed by her. PW4 has further deposed that no external injury was found on the person of prosecutrix. Her testimony has otherwise remained 6 SC No. 167/06 unchallenged on material points.
7. PW5 Ct. Umesh Kumar is the witness to the arrest of the accused and has proved the arrest memo of the accused as Ex.PW5/A and personal search memo as Ex.PW5/B. He has deposed that accused and prosecutrix had come to Police Station on their own. He has also deposed that he took the accused to GTB Hospital for his medical examination and got his MLC, blood sample and sample seal and handed over the same to the Investigating Officer and the same were seized vide memo Ex.PW5/C. His testimony has remained unshattered in the cross examination by Ld. Amicus Curiae for the accused. PW6 Sh. Somesh Kumar is the Subregistrar of Birth and Death, Shahdara, North Zone, MCD and has proved the photocopy of the entry regarding date of birth of prosecutrix in the register as Ex.PW6/A by producing the original register. He has deposed that as per record, date of birth of the prosecutrix 7 SC No. 167/06 was 31.08.91 and the same was entred on record on 10.09.91 at serial number 2181. His testimony has remained unshattered in cross examination. Record was maintained in due course of official business of office of the Municipal Corporation of Delhi and has been proved this witness.
8. PW7 Ct. Parmila had taken the prosecutrix to GTB Hospital for her medical examination. She had collected three sealed parcels along with one sample seal and MLC of the prosecutrix and handed over the same to Investigating Officer. She has proved the seizure memo of these three pulandas as Ex.PW7/A. She has also deposed that she had taken the prosecutrix to the Court where her statement u/s 164 Cr.PC was recorded by the Ld. Metropolitan Magistrate. This witness is also formal in nature Besides this, her testimony on above points has remained unshattered on material points. PW8 HC Om Prakash had taken four sealed pulandas alongwith sample 8 SC No. 167/06 seal to CFSL Kolkata and had deposited the same there on 27.07.06. He further stated that exhibits were not tampered with till the same remained in his custody. His testimony has also remained unshattered in his cross examination and there is no reason to disbelieve him. PW9 Ct. Ashok Kumar had taken the carbon copy of the FIR from the Duty Officer and handed over to Investigating Officer. He had also accompanied the Investigating Officer to the house of Islamuddin. He had also accompanied the Investigating Officer to the factory of Akbar @ Pappu, but the same was found locked. PW9 is also a formal witness. PW10 HC Vinod Singh was working as MHC(M). He has deposed that on 09.06.06, Investigating Officer deposited four pulandas sealed with the seal of GTB hospital along with two sample seals in the malkhana. He has further deposed that on 26.07.06, he sent the sealed pulandas alongwith sample seals to CFSL Calcutta vide RC No. 58/21. He has proved the relevant enteries as Ex.PW10/A by producing the original 9 SC No. 167/06 register no.19 in the Court.
9. PW11 Sh. Amit Kumar, Additional Rent Controller was working as Metropolitan Magistrate in Karkardooma Courts on 09.06.06 and had recorded the statement of prosecutrix u/s 164 Cr.PC. He has deposed in this regard and has proved the statement of prosecutrix as Ex.PW3/A. Prosecutrix PW3 has identified her signatures on Ex.PW3/A at point A. She has confirmed that her statement was recorded by a Judge in the Court, where she was produced by the police. She also deposed that she narrated facts before the Judge. PW11 was not cross examined by the Ld. Amicus Curiae for the accused. PW12 SI Ajay Kumar is the Investigating Officer and has given over all view on the investigation, done by him. PW13 ASI Dharambir Singh got the accused medical examined vide MLC Ex.PW13/A. He has deposed in this regard.
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10. While deposing in the Court, PW3 has corroborated the prosecution version. She has deposed that her date of birth is 31.08.91. It is worth mentioning here that her father has also given her date of birth as 31.08.91. PW3 further deposed that about one year ago, at about 11.00 am, she was present outside her house, when accused Sirajuddin, who was working in the factory of Pappu, opposite her house, made her to smell one Pinni and thereafter, she followed him. Accused took her to the house of his Khala at Muradabad and kept her there for two days. Accused told her not to disclose anything to his Khala. The accused removed her clothes as well as his clothes and put a handkerchief on her mouth. She tried to save herself but accused gave slaps to her. Accused had sexual relations with her by saying that she was his wife. She deposed that relations were maintained by the accused against her wishes. Accused had sexual intercourse with her once. In the morning, Pappu, with whom accused was working, brought them back to 11 SC No. 167/06 Delhi. She was taken to Police Station. PW3 was cross examined at length. Her testimony on material points has remained unshattered. From her testimony, it is proved that accused was working in a factory opposite the house of prosecutrix and it was owned by Pappu. At about 11.00 am, on the fateful day, accused Sirajuddin took her with him to the house of his Khala and kept her there for two days and during this period, he had sexual intercourse with her.
11. Ld. Amicus Curiae for the accused has vehemently contended that PW3 is not a trustworthy witness as she has taken shifting stand at different stages. In her statement u/s 161 Cr.PC, she has stated that accused had taken her to the house of his Khala at Muradabad after enticing her and on the pretext of marrying her, where he kept her for two days as his wife and he had sexual intercourse with her there. Thereafter, she brought the accused Sirajuddin to the Police Station. 12 SC No. 167/06 However, in her statement u/s 164 Cr.PC, she has not stated that accused had taken her with him after enticing her and on the pretext of marrying her. She further stated that landlord of accused came there and brought them back to Delhi. However, in her statement u/s 161 Cr.PC, she has stated that she along with accused came to the Police Station. Thus, according to the Ld. Amicus Curiae for the accused, accused has taken different stands on these two points during the investigation. She has further argued that while deposing in the Court, prosecutrix has introduced altogether a new theory and has given different version. In the Court, she has stated that accused made her to smell a pinni and thereafter, she followed him. Accused took her to his Khala's house at Muradabad. He put a handkerchief on her mouth. Khala of the accused told that Pappu had made a telephone call. These facts were not told by her either in her statement U/s 161 Cr.PC or in the statement u/s 164 Cr.PC. In her statement during the investigation, she stated that she was 13 SC No. 167/06 taken to Noorpur, whereas, while deposing in the Court, she has stated that she was taken to Muradabad. She has introduced a new theory in the Court. Accordingly, the prosecutrix is not a trustworthy and reliable witness and her testimony is liable to be discarded.
12. I have carefully gone through the statements of the proseuctrix u/s 161 Cr.PC, statement u/s 164 Cr.PC as well as her deposition in the Court and I do not find any force in the contentions of the Ld. Amicus Curiae for the accused that prosecutrix has made contradictory statements at different stages of investigation as well as in her deposition in the Court. So far as material points are concerned, her testimony is consistent. Perusal of all the statements clearly show that the statements made by her at different stages are more or less same on material points. In all her statements, she has maintained that accused was working in the factory, opposite to 14 SC No. 167/06 her house. On the fateful day at about 11.00 am, he took her with him to his Khala's house and kept her there for two days and committed sexual intercourse upon her against her wishes. Thereafter, they came to Delhi and went to Police Station. PW3 rd th has hardly studied upto 3 or 4 Class as per the statement of her father PW1. She belongs to lower strata of the society. Accordingly, some minor variations may arise in her statement. It is not necessary for every witness to give a Parrot like version at different stages of investigation and during trial. Minor variations may also arise due to passage of time. Incident took place in the month of June, 2006, whereas, statement of PW3 was recorded in the Court on 19.05.07 i.e. after about one year and for this reason also, some discrepancies may arise. I also do not find force in the contention of Ld. Amicus Curiae that since Akbar @ Pappu has not been examined as witness, uncorroborated testimony of prosecutrix has to be discarded. Accordingly, I am of the view 15 SC No. 167/06 that PW3 is a trustworthy and reliable witness.
13. Ld. Amicus Curiae for the accused has next contended that from the testimony of PW3, it is apparent that she had accompanied the accused of her own free will and she was a consenting party. PW3 has admitted in her cross examination that her house was situated in a populated area but despite this, she did not raise any alarm when accused allegedly took her with him from her house to ISBT in a rickshaw and from there, to the Village of Khala of accused in a bus. She did not raise any alarm on the way. She stayed in the house of Khala of accused for two days and there also, she did not raise alarm and also did not complain to any of the neighbour of Khala of the accused that accused had brought her with him against her wishes. It is contended that prosecutrix was a consenting party. It cannot be said that accused had sexual intercourse with the prosecutrix against her 16 SC No. 167/06 wishes. From her testimony, it is also clear that she had accompanied the accused of her own. Therefore, ingredients of offence u/s 363/366/376 IPC are also not made out, more so when prosecution has failed to prove that accused had taken the prosecutrix with him after enticing her for the purpose to have sexual intercourse with her. Reliance has been placed on the judgments reported in "Madan Lal Vs. State of Punjab 1997 (1) Crimes 561", "Biswanath Ghosh Vs. State AIR 1957 Calcutta 589" and " Arvinder Kaur & anr. Vs. State of Punjab reported in 2007 (3) RCR (Criminal) 818".
14. I have perused the testimony of PW3 and her cross examination and I find force in the contention of Ld. Amicus Curiae for the accused that prosecutrix was a consenting party. In her statement u/s 164 Cr.PC, she has stated that on 06.06.06, at about 11.00 am, she went to Noorpur along with accused, who was residing in front of her house. She had 17 SC No. 167/06 accompanied him meekly. In her examinationinchief, she has deposed that about one year ago, at about 11.00 am, accused Sirajuddin made her to smell a Pinni. Thereafter, she followed him. Accused did not say anything but took her to the house of his Khala. She has also not stated that accused had threatened her with dire consequences, if she refused to accompany him. She has not stated that accused had enticed her in any manner whatsoever. In her statement under section 164 Cr.PC, she has not stated about any force used by the accused nor about the Pinni and this is nothing but improvement. In her cross examination, she has admitted that apart from Khala of the accused, one sister and brother of the accused were also present in the said house. She has also admitted that there was one other houses near the house of Khala of accused. She has also admitted that there was a market near the Village of Khala of accused. She has also admitted that from her house, she had gone to ISBT in a cycle 18 SC No. 167/06 rickshaw and from ISBT to the village of Khala of the accused by a bus. She has further admitted that many persons were present at ISBT, which included bus conductors and drivers. She has also admitted that bus had stopped in between before it reached the Village of Khala of accused. She has admitted that she did not tell anyone all through out that accused had been taking her against her wishes. She did not lodge any complaint to the fellow passengers. It is clear from the testimony of PW3 that she did not raise any alarm nor made any effort to escape. Her this conduct is quite unnatural, more so, when accused was unarmed and alone. In her cross examination, she has also admitted that about two months prior to the incident, she had left her house on account of quarrel with her brothers and sister and scolding of her mother. From the conduct of PW3, it is quite clear that she was a consenting party.
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15. Next question which arises for determination is as to what was the age of the prosecutrix at the time of incident. If the prosecutrix was below 16 years of age at the time of incident, her consent would be immaterial for the offence u/s 376 IPC. Section 375 IPC provides as under:
375. Rape A man is said to commit "rape" who, except in the cases hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six exceptions: First Against her will.
Secondly Without her consent.
Thirdly With her consent, when her consent has been obtained by putting her on any person in whom she is interested in fear of death or of hurt. Fourthly With her consent, when the man knows he is not her husband, and that her consent is given because she believed that he is another man to whom she is or believed 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 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"
16. Perusal of the clause sixthly clearly shows that sexual intercourse with a woman with or without her wishes, when she 20 SC No. 167/06 is under 16 years of age, amounts to rape. Accordingly, if the prosecutrix is found below sixteen years at the time of incident, her consent would be immaterial and accused would be guilty of committing rape upon the prosecutrix.
17. PW1 Islamuddin has deposed that her daughter was 14 years of age at the time of incident and her date of birth is 31.08.91. PW3 has also given her date of birth as 31.08.91. PW6 Sh. Somesh Kumar, SubRegistrar Birth and Death, Shahdara, North Zone, MCD produced the original Birth Register in the Court. Photocopy of the relevant entery has been proved by him as Ex. PW6/A. Original Birth Register was seen in the Court and returned. I have perused the Ex. PW6/A, wherein, date of birth of the prosecutrix has been recorded at serial no.2181. As per Ex. PW6/A, date of birth of the prosecutrix is 31.08.91. The date of birth was registered in the record of MCD within ten days of birth of prosecutrix as the 21 SC No. 167/06 entry has been recorded on 10.09.91. There is no reason to disbelieve the Birth and Death Register maintained by the Municipal Corporation of Delhi in usual course. In my view, prosecution has succeeded in proving that date of birth of the prosecutrix was 31.08.91. Incident took place on 06.06.06. Thus, age of the prosecutrix was below 15 years at the time of incident and, admittedly, she was below the age of sixteen years. The judgments relied upon by the Ld. Amicus Curiae are on different facts. In Arvinder Kaur's case (Supra), School Leaving Certificate was disbelieved as the witness in that case could not give the name of the person, who got the prosecutrix admitted in the School and gave her date of birth as 04.01.1973. The date of birth as mentioned in the School leaving Certificate and Birth register were different. Name of the prosecutrix was also different in the birth register. All these facts weighed in the mind of Court for discarding the School Leaving Certificate. The facts involved in the case titled Rakesh 22 SC No. 167/06 Vs. State of Haryana reported in 2006(4) RCR (Criminal) 505, were also different. In the said case, Birth Certificate was not before the Court. It was held in the said case that the age determined through radiological examination is not conclusive proof as there would be margin of two or three years on either side. In this case, there is conclusive evidence in the shape of Municipal record in the form of Birth and Death Register. Accordingly, I am of the view that the consent of the prosecutrix would be of no consequence and accused is guilty of having committed offence u/s 376 IPC. Reliance is placed on the judgment rendered by the Hon'ble apex Court titled as "Iqbal Vs. State of Kerala reported in AIR 2008 SC 288".
18. I do not find any force in the contention of Ld. Amicus Curiae for the accused that allegations of rape are not corroborated by the medical evidence, therefore, accused is entitled to be acquitted. Merely because no injury was found 23 SC No. 167/06 on the private or any other part of the body of prosecutrix is, in my view, immaterial as testimony of PW3 is trustworthy and reliable.
19. Next question which arises for determination is as to whether accused is guilty of committing offence u/s 363/366 IPC. The offence of kidnapping from lawful guardianship is defined in 361 IPC, which reads as under:
"Kidnapping from lawful guardianship Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any 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, is said to kidnap such minor or person from lawful guardianship.
Explanation The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other preson.
Exception This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose". 24 SC No. 167/06
20. From the bare perusal of this section, it is evident that taking or enticing a minor from the lawful guardianship, is an essential ingredient of the offence of kidnapping. In the present case, there are no allegations of enticing. In her testimony, PW3 has admitted that accused was living opposite to her houses. In her statement u/s 164 Cr.PC, she has not alleged that accused had enticed her in any manner whatsoever. While deposing in the Court also, no allegation of enticement has been levelled against the accused. Her testimony shows that she had accompanied the accused without any enticement or inducement, therefore, ingredients of offence under section 363 IPC are not made out. There are no allegations that accused had taken the prosecutrix with him knowing that she would be compelled to marry any person against her will or that she would be forced to have illicit sexual intercourse with any person. No such allegations of enticement or inducement or marrying her without her will, 25 SC No. 167/06 have been leveled by the prosecutrix against the accused while deposing in the Court. She has not alleged that accused told her to accompany him as he desired to marry her. She was not forced to sexual intercourse with a person other then accused. Accordingly, I am of the view that offence under section 366 IPC is not made out. Reliance is placed on Iqbal's case (supra).
21. In the light of above discussions, I convict the accused Sirajuddin for the offence u/s 376 IPC.
Announced in the open court ( A.K. PATHAK )
th
on 06 November, 2008. DISTRICT JUDGE (VI)CUM ADDL.SESSIONS JUDGEI/C (EAST) KARKARDOOMA COURTS. DELHI 26 SC No. 167/06 IN THE COURT OF SHRI A.K. PATHAK, DISTT. JUDGE (VI)CUM ADDL.SESSIONS JUDGE(I/C) (EAST) KARKARDOOMA COURTS, DELHI Date of Conviction : 06.11.2008 Date of Order on Sentence : 14.11.2008 SC No. 167/06 FIR No. 391/06 PS Gokul Puri U/s 363/366/376 IPC State Vs. Sirajuddin S/o Mehndi Hassan R/o House of Akbar @ Pappu Gali No.1, Babu Nagar, Gokul Puri, Delhi.
ORDER ON SENTENCE
1. Vide judgment dated 06.11.08, accused Sirajuddin was convicted u/s 376 IPC. Arguments on sentence heard.
2. Ld. Amicus Curiae for the convict submitted that the convict is 20 years of age. He is an orphan. Prosecutrix had accompanied him with her own free will. Convict has no past criminal record. There are chances of his rehabilitation in the main stream of society. Convict is 27 SC No. 167/06 in Judicial Custody for last about two years and four months. Accordingly, he may be sentenced to the period he has remained in the judicial custody.
3. As against this, Ld. Addl. PP has contended that prosecutrix was minor at the time of incident. She was less than 16 years of age. Accused had sexual intercourse with a girl below the age of 16 years. The offence of rape is serious in nature and if such like convicts are shown leniency, it would lend encouragement to such like persons to indulge in such acts.
4. I have considered the rival contentions of both the parties. Prosecutrix was less than 16 years of age at the time of incident. Section 376 Indian Penal Code provides that whoever commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven year but which may be for life or for a term which may extend to ten years. Proviso to section 376 Indian Penal Code further provides that a 28 SC No. 167/06 Court may award sentence of imprisonment for a term which may be less than seven years but only in case of special circumstances.
5. In my view, in this case, no adequate reasons could be disclosed in favour of convict for awarding a sentence less than minimum punishment. Accordingly, I sentence convict Sirajuddin to face Rigorous Imprisonment for seven years. I also sentence him to pay fine of Rs.1000/ and in default of payment of fine, further undergo Simple Imprisonment for three months. Benefit of section 428 Cr.PC be given to the convict. File be consigned to Record Room.
Announced in the open court ( A.K. PATHAK )
th
on 14 November, 2008. DISTRICT JUDGE (VI)CUM ADDL.SESSIONS JUDGEI/C (EAST) KARKARDOOMA COURTS. DELHI 29