Delhi District Court
Para No.17 Of The Judgment "State Vs ... vs . Krishnappa Air on 6 November, 2013
1
IN THE COURT OF SHRI SANJEEV KUMAR: ASJ01: NORTH:ROHINI
DELHI
SC NO:48/12.
FIR NO.155/12.
PS :PRASHANT VIHAR.
U/S: 363/376 IPC.
STATE
VERSUS
MOHD. AZAD S/O. SAFFUDDIN
R/O. HOUSE OF JAMAL, VILLAGE RAJAPUR,
SECTOR9, ROHINI, DELHI. ... Accused
Date of Institution:04.08.2012
Date of Argument:15.10.2013
Date of Decision:06.11.2013
JUDGMENT
1. The prosecution story in brief is that on 21.04.12 an information was received in PCR from telephone No. 8780817553 that one girl of Sector 9 Rohini, Razapur Gaon, Ram Chowk, near Shiv Mandir had not returned from school. On that basis of said information from PCR, DD No. 68 B recorded in PS Prashant Vihar and it was assigned to SI Kailash. SI Kailash reached at the spot and recorded statement of complainant Mohd. Mustak who stated that his daughter H had not gone to school and is missing since 21.04.12 at about 2.30 pm. State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 1 of 30 2 SI made endorsement on the said statement and prepared rukka and recommended the same for registration of FIR U/s 363 IPC and accordingly FIR of the present case was registered.
On 30.04.12 on secret information IO SI Kailash apprehended prosecutrix H accused Moh.d Azad from Japanese Park. He arrested the accused Mohd. Azad. He got the prosecutrix examined from BSA Hospital, seized the exhibits handed over to him by doctor. He got recorded the statement of prosecutrix u/s 164 Cr.P.C and recorded statement of witnesses u/s 164 Cr.P.C during investigation. IO sent the exhibits to FSL Rohini, collected age proof of the prosecutrix 'H' and after completion of investigation filed charge sheet u/s 363/376 IPC and put forth the accused for trial.
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 31.08.12 charge u/s 363/376 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 witness. State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 2 of 30 3
5. PW1 H is the prosecutrix, her testimony will be discussed later on.
PW2 Devender Singh is the school teacher and proved school admission record of H to prove her date of birth.
PW3 Mohd. Mustak is the maternal uncle/mosa of the H and is the complainant. He deposed that prosecutrix H is the daughter of her sali (sister in law) and was residing with him, and he deposed that prosecutrix H has gone to school on 21 and did not return to home and he reported the matter to police on 100No. and his statement ExPW3/A was recorded and FIR was registered.
PW4 SI Anita Sharma is last IO and a formal witness and she only prepared charge sheet and filed it in the court, PW5 Sh. Deepak Wasson Ld.MM recorded the statement of H u/s 164 Cr.P.C. and proved the proceeding as ExPW5/A to ExPW5/C. PW6 Ct. Rahul participated in the investigation with IO Kailash and he deposed in his presence IO recorded statement of Mohd. Mustaq and prepared rucca which he took to PS and got registered FIR PW7 Vijay Dhankar proved the ossification test report of the State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 3 of 30 4 prosecutrix, Ex. PW7/A PW8 Dr. Jaya Mishra came in place of Dr. Vidya Sinha who medically examined the prosecutrix and prepared MLC Ex. PW8/A. PW9 W/Ct. Rachna participated in the investigation with IO and is witness of recovery of the prosecutrix and proved her recovery memo as ExPW6/A. PW10 Renu is the school teacher proved the school admission record containing date of birth of the prosecutrix H of her first class.
PW11, HC Prabhu Lal is the DO recorded the FIR Ex. PW11/A. PW12 Dr. Dinesh Varshney had examined the accused and proved his MLC Ex. PW12/A, PW13 Ct. Mahesh is the DD writer who recorded the DD No. 68 B Ex. PW13/A, PW14 Ct. Praveen participated in the investigation with IO and took rukka to PS and got the FIR registered, PW15 Dr. Rajiv Ranjan also is a member of board who conducted ossification test of prosecutrix H and proved report as Ex. State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 4 of 30 5 PW17/A. PW16 HC Karan Singh is the MHCM who proved the entry of deposit of case property Ex. PW16/A and road certificate of sending of case property to FSL as Ex. PW16/B and receipt of deposit of case property as Ex. PW16/C. PW17 SI Kailash Kumar is the IO.
PW18 Ct. Yogesh deposited the sample in FSL Rohini. PW19 ASI Rani Jassal is a formal witness and got recorded the statement of prosecutrix u/s 164 Cr.P.C and also collected the record of age of the prosecutrix from her school PW20 Ms. Seema Scientific Officer, FSL Rohini and proved the DNA report Ex. PX and PY.
6. After completion of evidence, statement of accused was recorded u/s 313 Cr.P.C and all the incriminating evidence were put to him. He denied the same, however, he did not lead any evidence in his defence.
7. I have heard Sh. A.K.Gupta APP for State and Sh.
Narender Kumar counsel for accused.
8. The accused has been charged for kidnapping, which is State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 5 of 30 6 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.
9. Further accused has also 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.
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.
State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 6 of 30 7 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.
Section 376 (2)(f) IPC: commits rape on a woman when she is under twelve years of age.
10. Hence from the definition of kidnapping it is evident that the consent of a female is immaterial for offence u/s 363 IPC if she is less than 18 years of age and in case of rape, if she is less than 16 years of age. Hence age of prosecutrix is quite relevant in such cases.
11. As per judgment of Jarnail Singh V State of Haryana, 2013 VII AD (SC) 313 it is held that the rule 12 of the 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 State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 7 of 30 8 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 herein above 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 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 State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 8 of 30 9 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 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 State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 9 of 30 10 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 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 subrule (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 sub rule (3) and the Act, requiring dispensation of the State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 10 of 30 11 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 first class in school, is to be given most preference, if same is 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.
State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 11 of 30 12
13. As per prosecution the 'H' was born on 07.01.2001. To prove the same, the prosecution has relied upon the school record of the prosecutrix and examined PW2 Devender SinghPGT Vocational Education, Sarvodya Vidyalaya, Sector9, Rohini. PW2 deposed that 'H' was admitted in their school vide admission no.M4950 on 30.3.11 in VI class and she was admitted in their school on the basis of school leaving certificate issued by Principal MC Primary School, Razpur village. He proved the admission register as ExPW2/A, copy of SLC as ExPW2/B and copy of admission form as ExPW2/C. In cross examination PW2 has stated that no birth certificate issued by MCD was filed in their school at the time of admission of prosecutrix and he do not know on what basis her date of birth was mentioned in the MC Primary School.
14. Further the prosecution has relied upon testimony of PW10 Renu Assistant Teacher MCD Primary School Sector 9 Razapur Kalan, Delhi. PW10 has deposed that 'H' was admitted in their school vide admission no.M4056 on 28.4.06 in class Ist B and her State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 12 of 30 13 date of birth is 07.01.2001 and she proved the admission register as ExPW10/D and admission form filled by uncle of 'H' namely Mohd. Mustaq as EXPW10/A and his declaration as EXPW10/B and his affidavit as EXPW10/C. In cross examination PW10 has stated admitted that no birth certificate issued by any Govt. Agency was filed.
15. I do not find any reason to disbelieve the entry of school record which was made in the year 2006. However I am agree with the contention of Ld. Defense counsel that since there is no basis for recording the age of H in school except the affidavit of father of 'H' it cannot be ruled out that lower age might have been given by parents at the time of admission in school. In this regard I rely upon Birad Mal Singhvi V Anand Purohit 1988 AIR 1796. It is known fact that lower age is given at the time of admission in school if child is above the prescribed age for admission in a particular class. The PW1 H herself and PW3 stated age of H as 14 years. Their testimonies were recorded on 07.11.12.
16. As per ossification report ExPW7/A of the prosecutrix State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 13 of 30 14 proved by PW7 Dr. Vijay Dhankar as per which the age of prosecutrix is between 14 years to 16 years on the date of examination. The incident of kidnapping as per PW1 is of 21.4.12 where as ossification test was conducted on 11.05.12. Hence even on the date of ossification test she was more than 14 years of age, if I take lower side of the age as mentioned in the ossification test. But from the ossification test report also it is proved that on the day of incident prosecutrix is less than 18 years of age and more than 12 years of age. Though as per school certificate his age comes even less than 12 years which make accused liable for higher punishment but considering the fact that since no document was filed on the basis of which her age was mentioned in the school and prosecutrix herself in her testimony had stated that she is 14 years of age which corroborate her age mentioned in ossification test hence I give benefit to accused and held that she was above 12 years of age but held she was less than 16 years of age on the day of incident.
State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 14 of 30 15
17. Hence, now if prosecution is able to prove that accused had entice the 'H' and took her away from the lawful guardianship without the consent of her lawful guardian and had sexual intercourse with the prosecutrix then accused is liable to be convicted for offence u/s 376/363 IPC.
18. PW1 prosecutrix in her testimony deposed that on 21.04.12 she along with her friend Sonia were going to school and when they reached near the shop of iron in Mangal Bazar, accused Azad met them and asked her to accompany but she refused. Thereafter he started scolded her but she did not obey his command and thereafter he put a handkerchief on her mouth and she become unconscious and thereafter she did not know what had happened. She regained consciousness, she found herself in the house of her mother. She did not know what accused has done with her. She was declared hostile by Ld. APP and was cross examined. In cross examination she admitted that she was medically examined in the hospital. She also admitted that her statement ExPW1/A is correct. She stated that she was not State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 15 of 30 16 knowing the name of the accused at the time of incident and when her statement ExPW1/A was recorded. She came to know the name of accused when the case against him started. She further stated that accused present in the court had taken her on the day of incident. She further stated that police did not make inquiry from her and recorded her statement on their own. She came to know that accused has committed wrong act with her when she was medically examined as she become unconscious when accused put handkerchief on her mouth. She further stated that she know the meaning of galat kaam and it means sexual intercourse which is to be performed by husband and wife after marriage. In her cross examination, she stated that she had given statement ExPW1/A to the earlier Judge voluntarily. She further stated that accused had taken her to India Gate by Metro train and then voluntarily stated that she did not accompany with him voluntarily. She further stated that they had boarded the metro train from the station which is near Sai Baba Chowk and she has not cried for help as accused has already threatened her that he State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 16 of 30 17 will kill her if she would shout. She further stated that there were two other boys including Sonia when she was taken to India Gate. She further stated that her parents had taken her to police station but she did not know the date and denied the suggestion that she was caught by the police from Japanese Park, Rohini. She further stated that accused had given her juice and shikanji at India Gate.
19. Thus on appreciation of the testimony of PW1, I am agree with contention of Ld. Counsel for accused that 'H' has taken contradictory stands in her statements given to police ExPW19/DX, in her statement ExPW1/A u/s 164 Cr.P.C. and in her testimony recorded in the court. In her statement u/s 161 Cr.P.C. he has stated that accused has took her from her house after enticing her (behlaphusla kar) and committed wrong act on the point of knife whereas in her statement u/s 164 Cr.P.C. she had stated that one person force her to sit on scooter and took her to Nizamuddin and did not do forceful act (jabardasti). Further in her testimony recorded in the court, she had stated that accused has took her after putting handkerchief on her nose and mouth. There are also State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 17 of 30 18 contradictions in her statement ExPW1/A and in her testimony recorded in the court as in her examination in chief she has stated that accused put handkerchief on her mouth and thereafter she become unconscious and in her statement u/s 164 Cr.P.C. she has stated that accused has gave her andabread and shikanji and thereafter she become unconscious whereas in her cross examination she stated that accused had given shikanji as well as put handkerchief on her mouth. All these contradictions though make her testimony unreliable to the extent that she was forcibly taken by the accused from the lawful guardianship of her parents but one common thing is appearing from all her different statements that she was taken by the accused from the lawful guardianship of her parents on 21.4.12. It appear prosecutrix has given different version in her different statements because she is confused whether to save the accused or not. It appear she accompanied with the accused with her own consent but since she is less then 18 years of age therefor her consent is immaterial. Therefore I am of the view that her testimony cannot be discarded State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 18 of 30 19 due to the contradictions in her statements.
20. Testimonies of PW1 that she went missing on 21.4.12 is further corroborated from the testimony of PW3 Mohd. Mushtaq. He had testified that 'H' was residing with him since she was 1 ½ year old. He further testified that on 21.4.12, H daughter of his sister in law had gone to school and she did not returned from school and she was not found despite search and at about 11.30 pm he made a call to police on no.100 about the missing of H. Police came and he narrated the facts of missing of H. On inquiry from girl from the school told that she had seen H with Mohd. Azad. Police recorded his statement ExPW3/A. He further stated that after 34 days, he received call from father of H that H has reached at their house. PW3 went there and inquired from H who told that she do not know anything as she was given some juice due to which she become unconscious. H told that accused had taken her. Police was informed and H was taken to hospital for her medical examination. In cross examination PW3 stated that his statement was recorded in PS at about 11/11.30 pm and his State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 19 of 30 20 statement was recorded twice or thrice. He further stated that on 22.4.12, he received phone from his Sadoo (brother in law) Mohd. Rustam from Nizamuddin about the arrival of H and then he went there in night time at around 9/9.30 pm after returning from his work. On that night H was not taken back to his house by him. PW3 denied the suggestion that he had quarreled with the accused many times prior to the incident. Hence nothing much has come out in his cross examination which could lead to disbelieve his testimony that PW1 H was not from his custody on 21.04.12.
21. The DD no.68B ExPW13/A recorded by PW13 on the information received from PCR also corroborated the fact that PW3 has made call to the police on 100 number. Further the testimony of PW3 that he made complaint for missing of H is proved from his statement ExPW3/A recorded by PW17 SI Kailash who prepared rukka on the basis of said statement. On the rukka ExPW17/A the timing of sending the rukka is mentioned as 1.15 am on 22.4.11. The timing of recording of FIR ExPW11/A is mentioned State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 20 of 30 21 as 2.05 hours. Hence from these facts it is evident that H was missing from her house on 21.4.12. Further from testimonies of PW1 and PW3 it is proved that 'H' returned to her parents home on 22.4.11.
22. Hence from the aforesaid facts and circumstances in my view, it is proved that accused had taken the prosecutrix from the lawful guardianship of PW3 in whose custody PW3 was residing. It is not the case of accused that he took permission from the PW3.
23. As far as the contention of Ld. Counsel for accused that Mohd. Mushtaq is not the father of prosecutrix, in my view same is also immaterial as it is undisputed fact that prosecutrix was residing with PW3 therefore even if he is not the father of prosecutrix and prosecutrix is daughter of his sister in law, still he was the lawful guardian of prosecutrix.
24. Another contention of ld.Counsel for accused that prosecutrix has stated that she was left at the house of her parents and denied that she and accused were apprehended from the State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 21 of 30 22 Japanese Park as claimed by the IO PW17 SI Kailash Kumar, same is also immaterial as prosecution has to only prove that prosecutrix was taken out from the lawful guardianship. It is seen that police officials in order to take credit creates false evidence. But merely on this ground entire case of the prosecution cannot be thrown away. Hence considering the facts and circumstances of the case, I held that prosecution has been able to prove that accused has taken the 'H' from the custody of her lawful guardian a minor girl less than 18 years of age and thus kidnapped the prosecutrix H.
25. As far as commission of rape by accused is concerned, as stated above prosecutrix PW1 'H' has testified that accused has put handkerchief on her mouth and thereafter she does not know what had happened. In her statement u/s 164 Cr.P.C. she had categorically denied that accused has committed rape with her (koi jor jabardasti nahin ki). But she had stated in her statement u/s 164 Cr.P.C that after consuming shikanji she become unconscious. Again in her statement u/s 164 Cr.P.C. she had State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 22 of 30 23 categorically denied that accused has committed rape with her. But in her cross examination she stated that she came to know that the accused has committed wrong act with her when she was medically examined. Hence as per her testimony accused have committed sex with her, if any when she was unconscious. As stated above prosecutrix is appeared to be confused because in my view from her testimony it appears that she was in love with accused, therefore, it cannot be ruled out that to save her honour and probably to avoid scolding from her parents she stated that no sex is committed by accused or she is not aware whether rape has been committed with her as she was unconscious.
26. Hence, from the other evidence, it is to be seen whether accused had committed sex with her or not. As per testimony of PW8 Dr. Jaya Mishra who has come to depose in place of Dr. Vidya Sinha. H was examined by Dr. Vidya Sinha vide MLC ExPW8/A and Dr. Vidya Sinha had given findings that on local examination hymen was found ruptured. Though in her cross examination she stated that without having sexual intercourse State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 23 of 30 24 hymen can ruptured due to falling or in physical sports activity like horse riding etc. However since no suggestion has been given to prosecutrix that she was either a sports person or used to do horse riding, therefore, it cannot be ruled out that her hymen might have been ruptured due to sexual intercourse which is further proved from her DNA report.
27. The DNA report is most scientific as chances of error is quite low. In this respect, I rely upon Pantangi Balarama Venkata Ganesh V State Of A.P. Crl.Appl.174/2009 decided on 23 July, 2009 Hon'ble judges of Supreme Court held that "46.Submission of Mr.Sachar that the report of DNA should not be relied upon, can not be accepted. What is DNA?It means :(Deoxyribonucleic Acid), which is found in the chromosomes of the cells of living beings is the blueprint of an individual. DNA decides the characteristics of the person such as the colour of the skin, type of hair, nails and so on. Using this genetic fingerprinting identification of an individual is done like in the traditional method of identifying fingerprints of offenders. The identification is hundred percent precise, experts State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 24 of 30 25 opine. There cannot be any doubt whatsoever that there is a need of quality control. Precautions are required to be taken to ensure preparation of high molecularweight DNA complete digestion of the samples with appropriate enzymes, and perfect transfer and hybridization of the blot to obtain distinct bands with appropriate control. (See Article of Lalji Singh, Centre for Cellular and Molecular Biology, Hyderabad in DNA Profiling and its applications) But in this case there is nothing to show that such precautions were not taken. Indisputably the evidence of the experts is admissible in evidence in terms of Section 45 of the Evidence Act, 1872. In crossexamination PW46 had stated as under : If the DNA fingerprint of a person matches with that of a sample, it means that the sample has come from that person only. The probability of two persons except identical twins having the same DNA fingerprint is around 1 in 30 billion world population."
28. The various samples of prosecutrix have been taken during her medial examination is proved from her MLC ExPW8/A. As in the MLC it is mentioned that exhibits i.e Sample No.4Nail State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 25 of 30 26 scrapping/ in between fingers, Sample 5 breast swab, Sample 6 combing of pubic hair 6, sample 7 clipping of pubic hair, sample 8 not taken no matting of pubic hair, sample 9 vaginal and cervical mucus secretion, sample 10 culture, sample 11 washing from vagina, sample 12 rectal examination, Sample 14 blood sample, Sample 15 urine sample were collected after her medical examination.
29. Further from the testimony of PW12 Dr. Dinesh Varshney who examined the accused and proved the MLC as ExPW12/A. It is proved that blood sample, blood and gauge, pubic hair sample, scalp hair sample and underwear were taken of the accused.
30. DNA report ExPY and ExPX prepared by PW20 Ms. Seema Nain. From the DNA report, it is proved that DNA of accused taken from his blood sample Ex1B found mixed in the DNA profile of Ex2e (cotton wool swab of victim) kept in tube described as 'Cervical Mucus collection', Ex2h1 cotton wool swab on stick kept in tube described as Rectal swab and Ex2h2 faint State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 26 of 30 27 smear described as 'Rectal Examination' of the victim. The report of DNA analysis is reproduced as under : Conclusion : DNA profiling (STR analysis) were performed on the source of exhibits '1b' (Blood sample of accused), '2e' (cotton wool swab of victim), '2h1 (cotton wool swab of victim), '2h2' (Micro slides of victim) is sufficient to conclude that DNA profile from the source of exhibit '1b' (Blood Sample of accused), is accounted in mixed DNA profile of source of exhibits 2e (Cotton wool swab of victim), '2h1 (Cotton wool swab of victim)', '2h2 (Microslides of victim)'.
Genotype AnalysisI
LOCI Exhibit 1b (Blood Sample of accused) Exhibit 2e, 2h1, 2h2
Allele data (Victim) Allele data
D8S1179 14 17 10,12,14,17
D21S11 30 28,29,30,31.2
D7S820 8 12 8,10,12
CSF1PO 10 10,12
D3S1358 17 14,15,16,17
TH01 8 9 6,7,8,9,10
D13S317 8 8,11,12
State V Mohd. Azad
FIR no.155/12
PS Prashant Vihar Page No. 27 of 30
28
D16S539 9 12 9,11,12
D2S1338 19 19
D19S433 13 15.2 12,13,15,15.2
vWa 16 17 14,16,17,18
TPOX 8 10 8,10,11
D18S51 14 19 14
X Y X Y
D5S818 10 13 10,11,12,13
FGA 24 25 24,25
31. Hence in view of DNA report, in my view, it is proved that accused has committed sexual intercourse with the prosecutrix otherwise there was no question his DNA would have find the vaginal swab of 'H'.
32. The contention of the Ld. Counsel for accused that in the DNA report the date of FIR 155/12 is mentioned 22.02.12, therefore the sample examined is not the sample of accused and H. But in my view, it appears to be a typographical mistake State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 28 of 30 29 because date of FIR is 22.04.12 and it appears that inadvertently 22.02.12 has been typed. There cannot be same FIR number 155/12 in the same PS. Hence there can be no FIR no.155/12 dt. 22.01.12. Further the exhibits of this case were sent to FSL as proved from the testimony of PW18 Ct. Yogesh has testified that on 14.5.12 he collected the exhibits from MHC(M) vide RC ExPW16/B and deposited the same in the FSL and FSL authority issued him receipt ExPW16/C. The FSL report shows that exhibits have been received by the letter of SHO dt. 14.05.12 which corroborated that the report pertains to the exhibits of this case.
33. Therefore, in these facts and circumstances, the findings of DNA of the accused in the vaginal swab of victim categorically proved that accused had committed sexual intercourse with the victim H.
34. Even, if I admit the such contention of the ld. Counsel for the accused that accused had taken the prosecutrix with the consent of prosecutrix and committed sexual intercourse with her consent same is immaterial because it is proved that H was less State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 29 of 30 30 than 16 years of age and sex with a female less than 16 yearsa is rape. Hence, I held that prosecution has been able to prove that accused has committed the rape with the prosecutrix.
35. In view of aforesaid facts and circumstances of the case and considering the testimony of PWs, I held that accused has kidnapped the prosecutrix and then committed sexual intercourse with her. Therefore, I convict him for offence u/s 363/376 IPC.
ANNOUNCED IN OPEN COURT (SANJEEV KUMAR) On 06.11.2013. ASJ01 (NORTH), ROHINI:DELHI. State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 30 of 30 31 IN THE COURT OF SHRI SANJEEV KUMAR: ASJ01: NORTH:ROHINI DELHI SC NO:48/12.
FIR NO.155/12.
PS :PRASHANT VIHAR.
U/S: 363/376 IPC.
STATE
VERSUS
MOHD. AZAD S/O. SAFFUDDIN
R/O. HOUSE OF JAGMAL, VILLAGE RAJAPUR,
SECTOR9, ROHINI, DELHI. .... Convict
ORDER ON SENTENCE
27.11.2013.
Present: Shri A.K. Gupta, ld. Addl. PP for the State.
Convict is in JC.
Shri Narender Kumar, Advocate for convict.
1. Vide Judgment dated 06/11/2013, Convict Mohd. Azad was convicted for offence u/s. 363/376 IPC.
2. It is submitted by Convict that, he is aged about 25 years State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 31 of 30 32 and he has old aged parents and four marriageable sisters and is married and having wife and two young children of age 2 yrs. and second of age two months old to look after. He further submits that he is the only bread winner of his family and previously he is not involved in any crime. Hence lenient view be taken.
3. On the other hand, it is argued by the ld. Addl. PP for the State that convict has kidnapped the prosecutrix who was just 14 yrs. of age and thereafter committed rape with her and thus he has ruined her life. Hence, the convict deserves no leniency and he should be convicted for maximum sentence under the statute.
4. I have considered the rival submissions.
5. It has been held by the Hon'ble Supreme Court of India in para no.17 of the Judgment "State vs Karnataka Vs. Krishnappa AIR 2000 SC 1470"
"........The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the stage and age of sexually assaulted female and gravity of the criminal act. Crimes of violence upon women State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 32 of 30 33 need to be severelly dealt with. Socio economic, status, religion, race, caste or creed of the accused or the victim are irrelevant consideration in sentencing the policy. Protection of society and deterring the criminal is the avowed object of law that is required to be achieved by imposing an appropriate sentence. The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in the heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection, therefore, imposition of proper sentence by the court......."
6. The convict has misguided prosecutrix a girl of just 14 years of age and took her from the lawful guardianship of her parents without their consent and then committed sexual intercourse with her. The consent of the prosecutrix is immaterial when she is below 16 years of age in a case of rape and below 18 years in a case of kidnapping. Section 376 IPC provides minimum punishment of seven years rigorous State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 33 of 30 34 imprisonment and maximum up to life.
7. Therefore, taking into all the facts and circumstances, in my view proper sentence in this case would be Seven years Rigorous Imprisonment under Section 376 IPC with fine of Rs.5,000/, in default of payment of fine, he shall further undergo Simple Imprisonment for Three months.
8. Further he is sentenced for two years RI u/s. 363 IPC with fine of Rs.2000/, in default of payment of fine, he shall further under SI for two months.
9. Both the sentences shall run concurrently.
8. The convict shall be entitled for benefit of Section 428 Cr.P.C. A copy of Judgment and that of order on sentence be provided to the Convict free of cost. Case property is confiscated to the State. File be consigned to record room.
Announced in open court (SANJEEV KUMAR) Dt.27.11.13 ASJ01, NORTH, ROHINI, DELHI State V Mohd. Azad FIR no.155/12 PS Prashant Vihar Page No. 34 of 30