Delhi District Court
State vs Arman @ Farukh on 20 November, 2014
IN THE COURT OF MS. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI
Unique Case I.D. No.02402R0213092012
SC No.138/13 Date of institution : 25.09.2012
FIR No.143/12 Date on which arguments
PS: Nand Nagri were heard : 09.10.2014
U/S.363/366/366A/376/ Date of judgment : 20.11.2014
323/506 IPC
State Versus Arman @ Farukh
S/o Mohd. Gulam Rasul
R/o village-Sheetal,
PO-Naya Nagar, PS-Mahagama,
Distt. Godda, (Jharkhand)
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet is that on 30.04.2012, ASI Ramesh Singh posted at PS Welcome produced the prosecutrix, a resident of Jharkhand and the accused before SHO police station Nand Nagri. The SHO directed SI Usha to take appropriate action. Thereafter the prosecutrix got registered a complaint against the accused wherein she made following allegations:
(i) She is 16 years of age and was residing at Jharkhand. For the last five to six months, the accused who SC No.138/13 State v. Arman @ Farukh Page 1 of 25 was a resident of village Sheetal near her village and a friend of her cousin (maternal uncle's son) used to come to her house and had bad eye for her.
(ii) About three months back, when the prosecutrix was alone at her home, the accused came to her house. She served him food because her cousin had told her (prosecutrix) that whenever the accused visits her house, she should serve food to him. After serving food to the accused, the prosecutrix went outside. After consuming food, the accused also came outside and asked the prosecutrix to eat the remaining food which the accused had not consumed. The prosecutrix ate the remaining food from the plate of the accused. Thereafter she came under influence of accused. Accused brought the prosecutrix to Delhi and kept her at Kodi Colony, Nand Nagri in a room where he used to do wrong acts with her (prosecutrix) every day against her consent and will.
(iii) For the last 15 days, the accused made the prosecutrix work as a prostitute at Laxmi Nagar. When the prosecutrix objected, accused beat her. Due to fear, the prosecutrix remained silent and did not disclose anything to any person. On 30.04.2012, the accused was taking the prosecutrix from Laxmi Nagar to Nand Nagri in a bus.
When the bus came near Maujpur, the accused tried to get down from the bus. The prosecutrix raised hue and cry and SC No.138/13 State v. Arman @ Farukh Page 2 of 25 the people apprehended the accused and he was handed over to the police.
2. On the complaint of the prosecutrix, an FIR u/s 363/366/376/506 IPC was got registered against the accused on 01.05.2012 at 3.00 AM. The prosecutrix was got medically examined at GTB Hospital on 30.04.2012. The statement of the prosecutrix u/s 164 Cr.P.C was got recorded by the learned MM on 02.05.2012. Accused was arrested and he was also got medically examined at GTB Hospital. Exhibits received from the hospital were seized. Personal search of the accused was conducted and the site plan of the spot was got prepared. During investigation, accused and the prosecutrix were taken to the various places to locate the spots where the accused had taken the prosecutrix but they could not point out these places. The prosecutrix could only identify the place at Tahirpur where she resided with the accused on rent. The sealed exhibits were sent to FSL, Rohini for forensic examination. After completion of investigation, the chargesheet u/s 363/366/366A/376/506 IPC was filed against the accused.
3. Since the offences in this case were triable by the Court of Sessions, vide order dated 11.09.2012, the learned M.M. committed this case to the Court of Sessions SC No.138/13 State v. Arman @ Farukh Page 3 of 25 and on allocation, it was assigned to this court.
4. Vide order dated 22.11.2012, my learned predecessor framed a charge u/s 363/366/376/366A/323/ 506 IPC against the accused to which he pleaded not guilty and claimed trial.
5. In support of its case, prosecution has examined thirteen witnesses i.e. HC Rajbir as PW1, Prosecutrix as PW2, Lady constable Rajni Nagar as PW3, Lady constable Renu as PW4, Ms. Vandana Jain, Metropolitan Magistrate as PW5, ASI Ramesh Singh as PW6, Dr. Parul Aggarwal, Senior Resident, GTB Hospital as PW7, Ct. Amir Singh as PW8, Dr. Parul Aggarwal, Senior Resident, GTB Hospital again as PW9, HC Bhagmal as PW10, Ct. Sanjeev as PW11, SI Usha as PW12, and Dr. B.N. Sharma, Casualty Medical officer, GTB Hospital as PW13.
6. Out of these witnesses, PW2 (prosecutrix) is the material witness of the case whose testimony shall be discussed at a later stage.
7. PW1 HC Rajbir Singh is the duty officer who deposed that on 01.05.2012 he was posted as the duty officer at police station Nand Nagri from 12.00 midnight to SC No.138/13 State v. Arman @ Farukh Page 4 of 25 8.00 AM. WSI Usha produced rukka before him on the basis of which he recorded FIR No.143/12 and proved the computerised copy of the same as Ex. PW1/A.
8. PW3 Lady constable Rajni Nagar deposed that on 30.04.2012 she took the prosecutrix to GTB Hospital where she refused her medical examination. She brought the prosecutrix back to the police station and handed over to the IO.
9. PW4 Lady constable Renu deposed that on 01.05.2012 she took the prosecutrix to GTB Hospital where she was medically examined. Sexual assault kit alongwith sample seal received from the hospital were seized by the IO vide seizure memo Ex. PW4/A.
10. PW7 Dr. Parul Aggarwal, Senior Resident, GTB Hospital deposed that she examined the prosecutrix and prepared her MLC. This witness proved the MLC of the prosecutrix as Ex.PW7/A. This witness also deposed that on 30.04.2012 the prosecutrix was medically examined by Dr. Manisha, Senior Resident. She deposed that Dr. Manisha had left the services of the hospital and she can identify the handwriting and signature of Dr. Manisha as she had seen Dr. Manisha writing and signing during the course of SC No.138/13 State v. Arman @ Farukh Page 5 of 25 her duties. She proved the findings of Dr. Manisha as Ex.PW9/A.
11. PW5 Ms. Vandana Jain, learned Metropolitan Magistrate had recorded the statement of prosecutrix u/s 164 Cr. P.C and proved the same as Ex. PW2/C.
12. PW8 Ct. Amir Singh deposed that on 01.05.2012 he was posted at police station Nand Nagri. On that day he joined investigation with the IO. Accused was interrogated by the IO vide memo Ex. PW2/B. Personal search of the accused was conducted vide memo Ex. PW2/C. Disclosure statement Ex.PW8/A of the accused was recorded. Accused led them to the place of offence and IO prepared the pointing out memo Ex. PW8/B. Thereafter the accused was taken to the hospital for his medical examination. The sealed parcels alongwith sample seal received from the hospital were seized vide memo Ex.PW8/C.
13. PW10 HC Bhagmal is the MHC(M) who deposed that on 01.05.2012 WSI Usha had handed over three sealed parcels alongwith two sample seal of GTB Hospital which were deposited in the malkhana vide entry no.4862 in register no.19. He proved the said entry as Ex.PW10/A. He also deposed that on 07.05.2012 all the sealed parcels SC No.138/13 State v. Arman @ Farukh Page 6 of 25 were sent to FSL, Rohini through Ct. Sanjeev vide RC No. 18/21 and proved the said RC as Ex. PW10/B.
14. PW11 Ct. Sanjeev deposed that on 07.05.2012 he took the sealed exhibits of the present case to FSL, Rohini and deposited the sealed exhibits at FSL, Rohini vide RC No.18/21.
15. PW13 Dr. B.N. Sharma, Casualty Medical Officer, GTB Hospital, Delhi deposed that she had seen the MLC dated 30.04.2012 of prosecutrix who was medically examined by Dr. Mohd. Parvez, Junior Resident who had left the services of the hospital and his whereabouts are not known. This witness identified the handwriting and signature of Dr. Mohd. Parvez and proved the MLC of the prosecutrix as Ex.PW13/A.
16. PW6 ASI Ramesh Singh has deposed that on 30.04.2012 at about 6.30 pm, a PCR call vide DD No.30A was received at the police station Welcome. This witness reached the spot i.e. Kabir Nagar, near Maujpur, Chowk where the prosecutrix and the accused were present. PW6 recorded the statement Ex. PW2/A of prosecutrix. As per the statement of the prosecutrix, the place of incident was within the jurisdiction of police station Nand Nagri thus the SC No.138/13 State v. Arman @ Farukh Page 7 of 25 prosecutrix and the accused were taken to police station Nand Nagri and produced before the SHO. The investigation of the case was marked to SI Usha.
17. PW12 SI Usha deposed that on 30.4.2012 the investigation of this case was handed over to her. This witness made endorsement Ex. PW12/A on the statement of the prosecutrix and got the case registered on 01.05.2012. The prosecutrix was got medically examined through lady constable Rajni. The accused was arrested vide arrest memo Ex.PW2/B and personal search of accused was conducted vide memo Ex.PW2/C. The accused was also medically examined at GTB Hospital and the exhibits received from the hospital were seized vide memo Ex. PW8/C and Ex. PW4/A. The police was granted one day police custody remand of accused on the application Ex.PW12/B moved by the IO before the court. Accused led the police party to the place of occurrence where the prosecutrix was kept and at his instance, pointing out memo Ex.PW8/B was prepared. Accused was unable to identify the place at Laxmi Nagar where the prosecutrix was kept for the purpose of prostitution. This witness further deposed that the prosecutrix was produced before court for her statement u/s 164 Cr.P.C. IO prepared the site plan Ex.PW12/C and recorded the statements of witnesses SC No.138/13 State v. Arman @ Farukh Page 8 of 25 u/s 161 Cr.P.C.
18. After closing of prosecution evidence, statement of accused u/s 313 Cr.P.C was recorded in which accused claimed himself to be innocent. He stated that he had never committed any offence. He further stated that about five months before the day of his arrest, a quarrel had taken place between the father of the prosecutrix and the accused when the tractor of accused got into the agricultural land of the father of the prosecutrix which was being driven by the driver of accused. A scuffle took place between him and the father of the prosecutrix. Mother of the prosecutrix threatened the accused of dire consequences. He also stated that thereafter he left Jharkhand and came to Delhi. He further stated that on the day of incident, prosecutrix alongwith two or three boys was present at the bus stop at Babarpur. The prosecutrix and those boys caught hold of him and started raising hue and cry. People gathered there and the matter was informed to the police station. The accused did not lead any defence evidence.
19. I have heard learned Addl. PP for the State and the learned defence counsel.
SC No.138/13 State v. Arman @ Farukh Page 9 of 2520. PW2 (prosecutrix) who is resident of Jharkhand has deposed that the accused was working as a helper on the tractor of the cousin brother of the prosecutrix. Once her cousin brother brought the accused to her house. At that time she had gone to the coalfields. Her mother was present at the house. Her younger brother came and informed her that her cousin brother and the accused had come to their house. The prosecutrix returned to her house and she enquired from her cousin brother about the accused who had accompanied him. Cousin brother of the accused told the prosecutrix that accused is like her brother. The prosecutrix offered tea, snacks and food to the accused. Accused thereafter stated coming to her house once in a week or 15 days. She also deposed that whenever he used to come, he used to look at her with bad eyes (galat nazar). One day the accused came to her house. At that time her parents were not present and the prosecutrix was in the coalfield. Brother of the prosecutrix called her to the house. She returned to her house and enquired from the accused as to why he had come. The accused replied that cousin brother of prosecutrix has gone somewhere and he is looking for him. The prosecutrix offered food to the accused on which he said that he had already taken the food. When the prosecutrix insisted, the accused agreed to eat food. Prosecutrix went to get water SC No.138/13 State v. Arman @ Farukh Page 10 of 25 for him. In the meantime, the accused mixed some intoxicating substance in the food. The prosecutrix ate the food which was left by the accused and was containing intoxicating substance. She further deposed that the accused went away and he again came to the house of the prosecutrix the next day. The prosecutrix asked the accused about the reason of his coming back. Accused told her that bhabhi (sister in law) of her cousin is admitted at a hospital at Patna and the prosecutrix has been called. The prosecutrix told the accused that her mother was not at home and she will not be able to go as all her brothers and sisters are young. However, the accused insisted and thus the prosecutrix accompanied the accused. Accused told her that he will take her to Patna but in fact the accused bought the ticket for Delhi and brought the prosecutrix to Delhi.
21. The prosecutrix further deposed that the accused took a room at Kodi Colony, Seemapuri where he kept the prosecutrix for 10-15 days. The accused used to beat her and used to have sexual intercourse with her by force despite her saying no. The accused raped the prosecutrix everyday for about three months.
22. The prosecutrix further deposed that thereafter SC No.138/13 State v. Arman @ Farukh Page 11 of 25 the accused put her (prosecutrix) for prostitution somewhere in Laxmi Nagar by force. She tried her best to get out from that prostitution racket but she was unable to do so. She further deposed that accused kept her at Laxmi Nagar for about one month. On 30th of the month, accused was taking her to Kodi Colony and she accompanied the accused in a bus. Accused was abusing the prosecutrix in the bus and threatening her that she would have to work as a prostitute otherwise he will kill her. She raised alarm and the people gathered asked her as to what had happened. Those persons helped the prosecutrix and informed the police. Police officials reached there and the prosecutrix narrated the entire incident to the police officials. Thereafter the police officials recorded the statement Ex. PW2/A of the prosecutrix. The accused had been apprehended by the public persons when she had raised alarm in the bus. The police arrested the accused vide arrest memo Ex.PW2/B and his personal search Ex.PW2/C was conducted. The prosecutrix proved her statement made before learned MM as Ex. PW2/C. The prosecutrix deposed that at the time of incident she was 16 years of age. Prosecutrix further deposed that she does not know the date, month and year of her birth. She stated that she had studied upto 6th standard. She left her education when she was in 7th class. She also deposed SC No.138/13 State v. Arman @ Farukh Page 12 of 25 that she had studied at a village Kheraiya, Jharkhand but she does not remember the name of the school. She deposed that she does not have any document regarding her date of birth.
23. The prosecutrix was cross examined on behalf of the accused.
24. The accused is facing trial for the commission of offences punishable u/s 363/366/376/366A/323/506 IPC. The period of commission of alleged offences is about three months ending on 01.5.2012.
25. Section 376 IPC stipulates punishment for the offence of rape. The offence of rape has been defined in section 375 IPC. The relevant portion of 375 IPC at that time was 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.
Thirdly.---- With her consent, when her consent has been obtained by putting her or any person in SC No.138/13 State v. Arman @ Farukh Page 13 of 25 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."
26. The first issue that arises for consideration is as to what was the age of the prosecutrix at the relevant SC No.138/13 State v. Arman @ Farukh Page 14 of 25 time. The prosecutrix in her evidence has deposed that she was about 16 years of age but she did not know the date, month and year of her birth. She has also deposed that she had studied upto 6th standard in a village school at Jharkhand but she did not remember the name of the school nor had any certificate regarding her date of birth. The accused during her cross examination challenged that the prosecutrix was minor at the time of incident. Parents of the prosecutrix who are resident of Jharkhand have not been made witnesses in this case. IO SI Usha appeared as PW12. In her cross examination, IO deposed that prosecutrix during investigation did not disclose that she had studied upto 7th class. IO also deposed that she did not collect any school record of the date of birth of the prosecutrix as the prosecutrix was thought to be illiterate. Thus, apart from a bald statement of the prosecutrix that she was about 16 years of age, there is no other substantive ocular evidence to that effect.
27. Perusal of record shows that during investigation, the prosecutrix was subjected to X-ray bone age test. The doctor after examining the X-ray sheet of the proseuctrix opined that the age of the prosecutrix was between 16 and 18 years. The X-ray test of the prosecutrix was conducted on 23.07.2012. I am of the opinion that in SC No.138/13 State v. Arman @ Farukh Page 15 of 25 absence of any other evidence this court should be guided by the opinion of the doctor based on the bone X-ray of the prosecutrix.
28. In case of State of NCT of Delhi vs. Shiva & Ors. (Crl. L.P. No. 172/2008 decided on 16.03.2012 by a Division Bench of the Hon'ble Delhi High Court), the doctor on the basis of ossification test had opined that the age of the prosecutrix in that case was between 14 to 16 years. In the circumstances taking note of the judgment of Hon'ble Supreme Court in Jaya Mala v. Home Secretary, Govt. of J & K [(1982)SCC 1296], the Hon'ble Delhi High Court held that there can be two years margin either way in radiological examination and thus it cannot be concluded with certainty that the prosecutrix was 16 years of age on the day of incident. In the said judgment it was also observed that if the two opinions are possible, one favouring the accused need be taken.
29. In the present case, the bone age test report dated 23.7.2012 has determined the age of the prosecutrix between 16 to 18 years. In absence of documentary and ocular evidence and taking note of the judgment of the case of Shiva & Ors (supra), the age of the prosecutrix at the relevant time is held to be above 18 years.SC No.138/13 State v. Arman @ Farukh Page 16 of 25
30. The prosecutrix in her deposition has stated that the accused brought her to Delhi and hired a room on rent at Kodi Colony, Seemapuri, Delhi. Accused kept her in that house for about 10-15 days. He used to beat her and used to have sexual intercourse with her despite her saying no. She also deposed that the accused used to rape her everyday for about three months and thereafter he put her for prostitution at Laxmi Nagar. The prosecutrix tried to get out from prostitution but was unable to do so. The prosecutrix has also deposed that on 30th of the month, accused was taking her in a bus. He was abusing her and asking her to work as a prostitute otherwise he will kill her. The prosecutrix raised alarm and the people asked her as to what had happened. She narrated the incident to them. Police was informed and the accused was arrested.
31. Evidence on record shows that the prosecutrix was taken to hospital for her gynecological examination in the night of 30.04.2012 but at that time she refused her internal medical examination on that day. Thereafter she was again taken to the hospital on 01.05.2012. This time she showed her willingness for her gynecological examination and sample collection of evidence. She was examined by PW7 Dr. Parul Aggarwal. PW7 Dr. Parul SC No.138/13 State v. Arman @ Farukh Page 17 of 25 Aggarwal has deposed that on 01.05.2012 at the time of her medical examination, the prosecutrix was mensurating and thus her per vaginal test could not be got recorded. The required samples were taken and handed over to Ct. Renu. Unfortunately, the prosecutrix was not taken to the hospital again for her internal medical examination for reasons which are not apparent. As per statement of the prosecutrix as recorded by PW7 Dr. Parul Aggarwal, the last act of sexual intercourse was on 26.04.2012. The prosecutrix was examined on 01.05.2012 and by that time she had changed her clothes, taken bath and had passed urine etc.
32. There is no reason to disbelieve the deposition of the prosecutrix that the accused used to have sexual intercourse with her. During cross examination of the prosecutrix, it was not disputed on behalf of the accused that the prosecutrix and the accused stayed at Kodi Colony, Seemapuri, Delhi in a rented room. The location of residence where the accused kept the prosecutrix is shown in site plan Ex.PW12/C. In view of the deposition of the prosecutrix which has remained unchallenged in cross examination to the extent that the prosecutrix and the accused shared the same room for a period of three months and accused had sexual intercourse with her, I am SC No.138/13 State v. Arman @ Farukh Page 18 of 25 of the opinion that it stands established that the accused used to have sexual intercourse with the prosecutrix.
33. I have held above that at the relevant time the prosecutrix was above 18 years of age. Since the prosecutrix at the relevant time was above 16 years of age, she was legally capable to give consent for sexual intercourse with any person. Thus sexual intercourse between the accused and the prosecutrix perse would not amount to the offence of rape. However, the same shall constitute an offence if the sexual intercourse was without consent or against her will or by use of force or deception.
34. During the course of cross examination, it was suggested to the prosecutrix that she had joined the company of the accused of her own free will. Even if it be presumed that there was no use of force by the accused at the time of prosecutrix coming to Delhi, it would be clear from the subsequent events that the accused subjected the prosecutrix to sexual intercourse against her will and consent. Prosecutrix in her evidence has stated that the accused used to have sexual intercourse with her against her will and by use of force and even made her indulge in prostitution. There is no reason to disbelieve the testimony of the prosecutrix. This also finds support from the conduct SC No.138/13 State v. Arman @ Farukh Page 19 of 25 of the prosecutrix raising hue and cry in the bus which led to apprehension of the accused by public persons and the intimation to police. The incident of hue and cry as narrated by the prosecutrix finds corroboration from the evidence of PW6 ASI Ramesh Singh of police station Welcome who deposed that on 30.04.2012 at about 6.30 pm on receipt of a PCR call recorded vide DD No.30A, he reached the spot at Kabir Nagar near Maujpur Chowk where the prosecutrix and the accused were found. The accused was a married person and had children out of the wedlock. There is no evidence that the accused had informed the prosecutrix about her previous existing marriage earlier.
35. In his statement u/s 313 Cr.P.C. the accused has stated that about five months prior from his arrest, a quarrel had taken place between him and the father of the prosecutrix when his tractor entered in the agricultural land of father of the prosecutrix. A scuffle took place between him and the father of the prosecutrix. The mother of the prosecutrix threatened the accused of dire consequences. Thereafter he shifted to Delhi. He further stated that on the day of alleged incident, the prosecutrix alongwith 2-3 boys were present at the bus stop of Babarpur. The prosecutrix and those boys picked him and SC No.138/13 State v. Arman @ Farukh Page 20 of 25 started raising hue and cry. Public persons gathered there and matter was reported to the police. He stated that he has been falsely implicated in this case. However, no reliance can be placed on this contention of accused. It is clearly an afterthought as no such suggestion was given to the prosecutrix during her cross examination. On the other hand it was suggested that prosecutrix joined the company of accused of her own free will. In view of above discussion, I am of the opinion the offence punishable u/s 376 IPC against accused stands established. Thus, accused is liable to be convicted for the said offence punishable u/s 376 IPC.
36. Further case of the prosecution is that the accused made the prosecutrix indulge in prostitution somewhere at Laxmi Nagar and on her resistance she was beaten by the accused. This fact was also stated by the prosecutrix in the FIR Ex.PW1/A. The prosecutrix was taken for medical examination to GTB Hospital on 01.05.2012 and her MLC Ex.PW13/A also records that she had stated to the doctor (PW7) that she had been subjected to sexual intercourse by about twenty persons. Names of those persons have not come on record. IO SI Usha appeared as PW1 stated that the accused was unable to identify the place at Laxmi Nagar where the prosecutrix was kept for SC No.138/13 State v. Arman @ Farukh Page 21 of 25 the purpose of prostitution. In her cross examination, the IO deposed that she had also taken the prosecutrix on 1/2.5.2012 to Laxmi Nagar alongwith other police officials but she did not remember their names. IO has also deposed that prosecutrix was unable to point out the places where she was forced to indulge in prostitution. The allegations in this case were very serious. A young girl from Jharkhand working at coalfields was brought to Delhi and made to indulge in prostitution. The evidence of the prosecutrix cannot be rejected on the ground of her inability to identify the places where she was forced to work as a prostitute.
37. The accused is also facing trial for the commission of offences punishable 363/366/366A IPC.
38. Section 363 IPC provides punishment for offence of 'kidnapping of minor' as defined under section 361 IPC. Section 361 IPC stipulates that 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 guardian of such minor or person of unsound mind, without the consent of the such guardian, is said to kidnap such minor or person from lawful guardianship. Section 366 IPC SC No.138/13 State v. Arman @ Farukh Page 22 of 25 stipulates punishment for aggravated form of offence of kidnapping. Section 366 IPC stipulates that whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Section 366A IPC stipulates that whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.
39. I have held above that the prosecution has not been able to establish that the prosecutrix was below 18 years of age at the relevant time. Thus, commission of offence punishable under section 363 IPC is not proved. Further there is no evidence on record to show use of force or deception by the accused at the time of her coming to Delhi. Thus, commission of offence u/s 363 IPC is not SC No.138/13 State v. Arman @ Farukh Page 23 of 25 proved. As as consequence, offneces u/s 366 and 366A IPC are also not proved. Thus it must be held that prosecution has not been able to establish that the accused committed offences punishable u/s 363/366/366A IPC.
40. The accused is also facing trial for the commission of offence punishable u/s 323/506 IPC. The prosecutrix has deposed that the accused used to beat her. Her testimony is corroborated with her statement recorded u/s 164 Cr. P.C wherein she stated that accused used to beat her and sometimes he used to beat her so severely that she used to loose her consciousness and once he had broken her hand. The allegations of beating the prosecutrix by the accused find corroboration with her statement Ex.PW2/A (on the basis of which FIR was registered) and the statement of PW7 Dr. Parul Aggarwal to whom the prosecutrix at the time of her medical examination had stated that the accused used to physically assault her. Under these circumstances, I am of the view that the prosecution has been able to establish that the accused used to beat the prosecutrix. Thus, he is liable to be convicted u/s 323 IPC.
41. As far as offence punishable u/s 506 IPC is concerned, the prosecutrix has deposed that the accused SC No.138/13 State v. Arman @ Farukh Page 24 of 25 used to threat her of death. Her testimony finds corroboration with the contents of FIR wherein she stated that accused used to threat her and due to his terror she used to remain silent. Raising of hue and cry in the bus by the prosecutrix is also indicative of the fact that the prosecutrix was being threatened by the accused. Thus, I do not find any reason to disbelieve the case of prosecution that accused used to extend threat to the prosecutrix of death. Hence accused is liable to be convicted for the offence punishable u/s 506 IPC.
42. In view of above discussion, it is held that the prosecution has not been able to prove its case against accused for the commission of offences punishable u/s 363/366/366A IPC. Thus accused is acquitted of the offences punishable u/s 363/366/366A IPC. However, the prosecution has been able to prove its case against the accused for the commission of offences punishable u/s 376/323/506 IPC. Thus, the accused is convicted for the offences punishable u/s 376/323/506 IPC.
Announced in the open court on 20.11.2014 (Sarita Birbal) Additional Sessions Judge, (SFTC), Karkardooma Courts, Delhi SC No.138/13 State v. Arman @ Farukh Page 25 of 25