Delhi District Court
Sc No: 26/15 State vs . Muntiyaz on 4 August, 2015
SC No: 26/15 State Vs. Muntiyaz
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 26/15
FIR No. 666/14
Police Station Bhalswa Diary
Under Section 363/376/295 A IPC
4 POCSO Act
ID No. 02404R0-059512015
State
Versus
Muntiyaz
S/o Sh. Mohd Asgar
R/o E-90, Gali No.6,
Swami Shardanand Colony,
Bhalswa Diary, Delhi. ......Accused
Date of institution 12/02/15
Judgment reserved on 04/08/15
Judgment Pronounced on 04/08/15
Decision Acquitted
Judgment 1 of 14
SC No: 26/15 State Vs. Muntiyaz
JUDGMENT
1. Briefly stated the case of the prosecution is that prosecutrix 'P' , aged about 17 years went missing from her house on 06.12.2014. Her father alleged that his daughter has been kidnapped by the some one and prayed that she be traced out. On the basis an FIR u/ 363 IPC was registered.
2. Efforts to search for the victim through publicity and publication in electronic and printed media but she could not be found. On 23.12.2014, the prosecutrix and the accused were apprehended from Mangal Bazar Road, Near Masjid , Bhalswa Diary Delhi. The prosecutrix in her statement recorded u/s 164 Cr P C claimed that accused enticed her to go along with him. He forcibly committed rape on her. She also alleged that the accused forcibly changed her religion from Hindu to Muslim and married her as per Muslim religion and rites. The prosecutrix medically examined. The accused was arrested. After completing investigations, charge sheet was filed.
Judgment 2 of 14 SC No: 26/15 State Vs. Muntiyaz
3. The charges for the offences under Section 363/295 A IPC & Section 4 POCSO (Protection of Children from Sexual Offences)Act in alternative u/s 376 IPC were framed against accused. Accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
4. The prosecution has examined 7 witnesses in support of its case.
5. PW1 is the prosecutrix. She testified that her age is 17 years. She developed friendship with the accused and voluntarily went with him. She denied that the accused developed physical relations with her. Prosecutrix further deposed that she attained majority on 15.12.2014 and thereafter she voluntarily married the accused as per Muslim rites and religion. She was taken to Hospital for medical examination. She proved her statement Ex. PW1/A recorded U/s 164 Cr. PC , she also proved the execution of affidavits of name change and conversion of her Judgment 3 of 14 SC No: 26/15 State Vs. Muntiyaz religion to Muslim as Ex PW1/B & C and the marriage certificate as Ex PW1/D. The Ld Addl PP put some leading questions to the prosecutrix wherein she admitted that as per School records her date of Birth is 10.06.2000 but clarified that her parents had got mentioned her date of birth on lesser side. She denied that accused forced her into this relationship or raped her.
6. PW2 is the father of the prosecutrix. He lodged the missing report of her daughter. He testified that on 23.12.2014 he got recovered her daughter from Mangal Bazar and the accused was arrested vide memo Ex PW2/A the personal search of accused was taken vide memo Ex PW2/B. He also proved the pointing out memo prepared at the instance of the accused of the place where the accused and the prosecutrix stayed together as Ex PW2/C.
7. PW3 Ct Dushyant proved the arrest of the accused and seizure of the exhibits of the accused after his medical examination as per seizure memo Ex PW3/A. Judgment 4 of 14 SC No: 26/15 State Vs. Muntiyaz
8. PW4 Ms. Kamla Sharma, Principal, M.C. Primary School, who deposed that prosecutrix was admitted in first class in their School on 07.07.2005 vide admission number 7152 and her date of birth is mentioned as 10.06.2000. The copy of the relevant record is Ex. PW4/A. The admission form and the certificate submitted by the brother of prosecutric in respect of date of birth of child is Ex. PW4/ B & C.
9. PW5 SI Roshni is the IO of the case. She got recorded the statement of the victim u/s 164 Cr.P.C as per her application Ex PW5/A. She proved the arrest of accused and the site plan Ex. PW1/E prepared by her of the place of occurrence. She also proved the pointing out memos prepared by her at the instance of the accused as Ex. PW2/C and PW5/D. She also proved the seizure of vehicle in which the prosecutrix was abducted as Ex. PW5/F. She obtained the age proof of the prosecutrix from her School as per the record Ex. PW-4/A-C wherein the date of birth of Judgment 5 of 14 SC No: 26/15 State Vs. Muntiyaz the prosecutrix is mentioned as 10.06.2000. During her cross- examination, the IO deposed that the prosecutrix mentioned her date of birth more than 18 years on the date of incident in the documents which she got prepared for the purpose of her marriage with the accused and the parents of the prosecutrix could not produce any Government record in respect of the age proof of the prosecutrix.
10. PW6 Dr. Meet Kumar proved the MLC of the prosecutrix as Ex. PX-4.
11. PW7 Dr. R.S. Mishra proved the MLC of the prosecutrix as Ex. PX-3.
12. In the present case, the prosecution cited 20 witnesses in order to prove its case against the accused. After framing of the charge the accused gave a statement wherein he admitted the DDNo.24B as Ex. PX-1, FIR in question as Judgment 6 of 14 SC No: 26/15 State Vs. Muntiyaz Ex. PX-2, MLCs of prosecutrix as Ex. PX-3 & 4, his own MLC as Ex. PX-5 and his potency report as Ex PX-6. In view of the same the concerned Duty Officer and police witnesses were not summoned for examination. The remaining witnesses were examined as PW1 to PW7 and their testimonies have already been discussed as above.
13. In these circumstances PE was closed. Statement of accused was dispensed with as no incriminating evidence came on record against the accused from the statements of material witnesses and of the prosecutrix.
14. Arguments have been addressed by learned Additional PP as well as learned defence counsel.
15. I have heard the arguments and also perused the case file carefully.
Judgment 7 of 14 SC No: 26/15 State Vs. Muntiyaz
16. Age of the prosecutrix: In the present case, accused is alleged to have kidnapped victim P, a minor aged about 17 years and took her to his house with intent that she may be compelled to marry him and/or be forced/seduced for illicit intercourse with him. In order to prove that the victim was a "Child" less than 18 years of age, as on the date she went missing from her house, prosecution collected the School record Ex PW4/A-C of the prosecutrix wherein, the date of birth of the victim is 10.06.2000. However, no government record in respect of the date of birth of the prosecutrix has been produced.
17. The Juvenile Justice (Care and Protection of Children) Act, 2000 has laid down the guidelines to arrive at a finding about the age of a juvenile. These are contained in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. The procedure to be followed in the determination of the age is contained therein. The Supreme Court in 2013 11 SCC 637 Mahadeo Vs. State of Maharashtra & Anr. has held that this Judgment 8 of 14 SC No: 26/15 State Vs. Muntiyaz procedure will also apply for determination of age of a rape victim. Rule 12 (3) clearly states that the age inquiry would conducted by the Court by obtaining matriculation or equivalent certificate in the absence of which the date of birth certificate from the school first attended or the next option being the birth certificate issued by the municipal authorities be obtained. Documents relied upon by the prosecution to establish that the victim was born on 10.06.2000 does not fit into any of the afore-noted category. In such an anomaly, Rule 12 states that a Medical Board will be constituted to determine the age of a victim. This would only be a relevant fact and needless to state, would not be a conclusive evidence about the age of the victim.
18. The stand of the prosecution that the prosecutrix was a minor is not established by the documents relied upon by the prosecution. In terms of Rule 12 if the first three parameters contained in Rule 12 (3) are not made available, the next step would be to subject the victim to an ossification test. This has to be Judgment 9 of 14 SC No: 26/15 State Vs. Muntiyaz coupled with the fact that the prosecutrix in her affidavit executed for the purpose of marriage, Ex PW1/B, prosecutrix claimed her age to be 19 years. Therefore, there is no conclusive evidence on record to establish that the prosecutrix was a child within meaning of POCSO Act, the day when she eloped with the accused.
19. Testimony of victim: The victim categorically deposed that she fell in love with the accused and ran away with him. She performed Nikah with the accused as per her wish and will and after the marriage they have been living together as husband and wife. It is evident that the prosecutrix was consenting party when she voluntarily eloped with the accused. The prosecutrix has deposed that she had voluntarily gone with the accused and solemnized marriage with him as per Muslin Rites & Customs and that she was not enticed by the accused, in any manner, to go with him. Thus, the factum of forcible marriage or taking away of the prosecutrix for the purpose of said marriage is concerned, there is not even an iota of evidence on record.
Judgment 10 of 14 SC No: 26/15 State Vs. Muntiyaz
20. 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. ...."
21. 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)",wherein 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:
Judgment 11 of 14 SC No: 26/15 State Vs. Muntiyaz
" There is a distinction between " taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it 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."
22. In the present case also, the element of 'taking away' or 'enticement' is found to be lacking. In view of the material on record, it appears that victim was willing and consenting party and it seems that everything has happened with her will. In these circumstances, the factum of kidnapping of prosecutrix does not stand proved.
Judgment 12 of 14 SC No: 26/15 State Vs. Muntiyaz
23. The nutshell of foregoing discussion is that from the testimony of the prosecutrix as well as other material witnesses examined by it, the prosecution has miserably failed to prove that accused had kidnapped prosecutrix, with intention to compel her to marry him and to force/seduce her to have illicit intercourse with him.
24. Moreover, the victim has categorically deposed that the accused did not establish physical relationship with her . There is no conclusive medical evidence on record to prove the factum of physical relationship between the accused and the prosecutrix. The prosecutrix categorically deposed that she of her own will converted to Islam and married the accused as per Muslim rites. Hence, the accused cannot be held to be guilty of hurting the religious sentiments/ beliefs of the prosecutrix in manner. Thus, the prosecution is unable to prove the guilt of the accused of Judgment 13 of 14 SC No: 26/15 State Vs. Muntiyaz committing rape or sexual assault on the prosecutrix and of insulting the religious beliefs of the prosecutrix as punishable under Section 4 POCSO Act/363/ 376 IPC and 295-A IPC.
25. Accordingly, I acquit accused Muntiyaz of the charged offence. The accused 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 open Court on Day of 04th August, 2015.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
04.08.2015
Judgment 14 of 14