Delhi District Court
State vs Rizwan S/O Mohd. Iliyas on 16 October, 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.02402R0004182012
SC No.136/13 Date of institution : 09.01.2012
FIR No.340/11 Date on which arguments
PS: Gokalpuri were herd : 24.09.2014
U/S. 363/366 IPC Date of judgment : 16.10.2014
State Versus Rizwan S/o Mohd. Iliyas
R/o E-222, Gali No.8, 25 feet
road, Chand Bagh, Delhi.
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet is that on 26.9.2011 the complainant (father of the prosecutrix) came to the police station Gokalpuri and lodged a police complaint wherein he stated that his daughter (prosecutrix) aged about 16 years 6 months is missing from his home with Rs. 2 lacs in cash and jewellery and she is not traceable despite his best efforts. He also stated that he has come to know that his neighbour Kalan has kidnapped her.
SC No.136/13 State v. Rizwan Page 1 of 222. On this complaint, a case u/s 363/366 (A) IPC was got registered against the accused. WT messages were flashed. During investigation, accused was apprehended alongwith prosecutrix on the identification of the complainant. Accused was arrested but nothing was recovered from the accused. However, from the possession of the prosecutrix a sum of Rs.48,500/-, lady's and gent's clothes, artificial jewellery, two mobile phones (make LG and Nokia) were recovered. The prosecutrix was got medically examined. The statement of the prosecutrix u/s 164 Cr.P.C was got recorded by the learned MM. Offence punishable under section 376 IPC was added to the FIR. Accused was also got medically examined. The sealed exhibits were sent to FSL, Rohini for forensic examination. After completion of investigation, the chargesheet u/s 363/366/376 IPC was filed against the accused.
3. From the record it is seen that after the chargesheet was filed, a contention was raised on behalf of the accused that he is a juvenile and thus he is liable to be tried by the Juvenile Justice Board. Accordingly, the file was sent to the Juvenile Justice Board. Vide order 19.07.2012, the Juvenile Justice Board on the basis of medical evidence concluded that on the date of alleged offence i.e. on 26.09.2011, the accused was not a juvenile.
SC No.136/13 State v. Rizwan Page 2 of 22Thus, the case was sent back to the concerned court.
4. Vide order dated 05.01.2012, the learned M.M. committed this case to the Court of Sessions and on allocation, it was assigned to this court.
5. Chargesheet in this case was filed u/s 363/366/376 IPC against the accused. However, the prosecutrix during the course of investigation had maintained that she had got married with the accused of her free will. She had also made statement u/s 164 Cr.P.C to the same effect before the learned MM. Accused had also filed certain documents including Nikahnama to show that the prosecutrix had got married with him. Section 375 IPC stipulates that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. In this case the prosecutrix was above 16 years of age on the date of alleged offence. Hence, vide order dated 03.02.2012, my learned predecessor framed a charge u/s 363/366 IPC against the accused to which he pleaded not guilty and claimed trial.
6. In support of its case, prosecution has examined sixteen witnesses i.e. prosecutrix as PW1, Ct. Rakesh Kumar as PW2, Dr. Esha Sharma as PW3, mother of SC No.136/13 State v. Rizwan Page 3 of 22 prosecutrix as PW4, Ms.Poonam Baa from Govt. Girls Senior Secondary, School B- Block No.2, Yamuna Vihar, Delhi as PW5, Ms. Savitri, learned Metropolitan Magistrate as PW6, W/Ct. Kanta as PW7, Dr. Nitasha Gupta, Senior Resident, GTB Hospital as PW8, father of prosecutrix as PW9, HC Surender Singh as PW10, Ct. Mukesh as PW11, Inspector Karan Singh Rana as PW12, Dr. Sanjeeta Behera, CMO, GTB Hospital as PW13, SI Rano Devi as PW14, ASI Ram Kishore as PW15 and Sh. A.K. Shrivastava, Deputy Director Biology, DNA Finger Print Unit, FSL, Rohini as PW16.
7. Out of these witnesses, PW1 (prosecutrix), PW4 (mother of prosecutrix) and PW9 (father of prosecutrix) are the material witnesses of the case whose testimonies shall be discussed at a later stage.
8. PW15 ASI Ram Kishore deposed that on 26.9.2011 he was posted as ASI in police station Gokalpuri. On that day, complainant (father of the prosecutrix) came to the police station Gokalpuri and lodged a missing report regarding his daughter (prosecutrix). The complainant named one Kalan who had enticed and taken his daughter with intention to marry him. The statement of complainant Ex.PW9/A was recorded and he made endorsement Ex.PW15/A on the statement and produced the rukka SC No.136/13 State v. Rizwan Page 4 of 22 before duty officer for registration of FIR. After registration of FIR, the investigation was handed over to Inspector Karan Singh Rana.
9. PW12 Inspector Karan Singh Rana deposed that on 26.9.2011, he was posted at police station Gokalpuri as SHO. On that day investigation of this case was handed over to him. WT message Ex. PW12/A, NCRB Ex. PW12/B, SCRB Ex.PW12/C were flashed to search the prosecutrix but she could not be found.
10. PW2 Ct. Rakesh Kumar deposed that on 08.10.2011, accused alongwith one girl was found present at red light Bhajanpura Chowk at the Majar of Peer Baba. The girl was having one bag containing Rs. 48,500/-, three mobile phones out of which one mobile phone of make LG and two mobiles were of Nokia make and lady's clothes. Accused was arrested vide arrest memo Ex. PWPW9/B and his personal search Ex.PW10/A was conducted. The accused and the prosecutrix were taken to GTB Hospital for their medical examination and three sealed parcels received from the hospital were seized by the IO vide seizure memo Ex.PW2/A. This witness has identified the photocopy of currency notes of Rs.48,500/- Ex.P1 (collectively), two mobile phones of make Nokia and LG SC No.136/13 State v. Rizwan Page 5 of 22 Ex. PW9/P2, Ex. PW9/P3 and one charger Ex. PW9/P4.
11. PW7 W/Ct. Kanta deposed that on 08.10.2011 on the direction of senior officers, she alongwith Ct. Rakesh reached near Peer Baba Dargah, Bajanpura red light where IO SI Rano Devi and SHO were present. Accused Rizwan and prosecutrix were also present there. The custody of the prosecutrix was handed over to her and she took the prosecutrix to GTB Hospital for her medical examination. After medical examination, doctor handed over one parcel sealed with the seal of GTB hospital and MLC to her which were seized by the IO vide seizure memo Ex. PW7/A.
12. PW3 Dr. Esha Sharma, Senior Resident, GTB Hospital, Delhi deposed that she had seen the MLC of prosecutrix who was medically examined by Dr. Nitasha Gupta who had left the services of the hospital and her complete particulars are not available. This witness has identified the handwriting and signature of Dr. Nitasha Gupta and proved the MLC of the prosecutrix as Ex. PW3/A.
13. PW8 Dr. Nitasha Gupta, Senior Resident, GTB Hospital also appeared as a witness and deposed that she examined the prosecutrix and prepared her MLC. This witness proved the MLC of the prosecutrix as Ex.PW3/A. SC No.136/13 State v. Rizwan Page 6 of 22
14. PW5 Ms. Poonam Baa, TGT Hindu Govt. Girls Senior Secondary School, B-Block No.2, Yamuna Vihar, Delhi brought the summoned record pertaining to the admission record of prosecutrix and stated that prosecutrix was admitted in the school on 01.4.2008 in 6th class. She proved the relevant entry of admission register as Ex.PW5/A and admission form as Ex.PW5/B. She also proved the school leaving certificate of the prosecutrix as Ex. PW5/C.
15. PW6 Ms. Savitri, learned Metropolitan Magistrate recorded the statement of prosecutrix u/s 164 Cr. P.C and proved the same as Ex. PW6/C.
16. PW13 Dr. Sanjeeta Behera, CMO, GTB Hospital deposed that she had seen the MLC of accused Rizwan who was medically examined by Dr. Abhinav, Junior Resident who has already left the services of the hospital and his whereabouts are not known. This witness has identified the handwriting and signature of Dr. Abhinav and proved the MLC of the accused as Ex. PW13/A.
17. PW16 Sh. A.K. Shrivastava, Deputy Director Biology, DNA Finger Print Unit, FSL, Rohini deposed that on SC No.136/13 State v. Rizwan Page 7 of 22 01.5.2012 four sealed parcels were received in the office which were handed over to him. He examined the sealed parcels of this case and prepared his report Ex. PW16/A.
18. PW10 HC Surender Singh deposed that on 08.10.2011, W/SI Rano Devi handed over four sealed parcels to him and he deposited the same in the malkhana. He made entry Ex. PW10/A in register no. 19 at serial no.
313. He further deposed that on 02.12.2011 he sent all the sealed parcels to FSL, Rohini through Ct. Mukesh vide RC No.155/12 and proved the entry Ex. PW10/B in this regard.
19. PW11 Ct. Mukesh deposed that on 02.12.2011 he received the sealed parcels of this case from MHC(M) for depositing the same at FSL, Rohini and deposited the same at FSL, Rohini.
20. PW14 SI Rano Devi deposed that on 08.10.2011 she was posted at police station Jyoti Nagar. On the asking of duty officer of PS Jyoti Nagar she went to police station Gokalpuri and met the SHO. She accompanied SHO as he had received secret information regarding the present case and they reached Chand Bagh where the father of the victim met them. Father of victim disclosed that accused SC No.136/13 State v. Rizwan Page 8 of 22 and his daughter would reach at Peer Baba Majar situated at Chand Bagh. IO further deposed that they reached there and at about 6.10 am, accused alongwith prosecutrix came there. Accused was apprehended on the pointing out of the complainant. Arrest memo Ex.PW9/B and personal search memo Ex.PW12/A were got prepared. One lady constable was called from the police station. The accused and the prosecutrix were taken to GTB Hospital where they were got medical examined and the sealed exhibits received from the hospital were seized vide memo Ex.PW7/A and PW2/A. The accused was produced before the court from where he was sent to judicial custody. Statement of the prosecutrix u/s 164 Cr.PC was got recorded by the learned MM on 10.10.2011 and the prosecutrix was sent to Snehalaya. Case property was seized vide memo Ex.PW9/D. The case property was sent to FSL, Rohini for examination and the result Ex. PW14/B was obtained. Section 376 IPC was added in the FIR after medical examination of the prosecutrix. She obtained the date of birth documents of the prosecutrix from her school.
21. After closing of prosecution evidence, statement of accused u/s 313 Cr.P.C was recorded. He stated that he is innocent and has been falsely implicated in the present case. He also stated that some disputes had occurred SC No.136/13 State v. Rizwan Page 9 of 22 between his family and the family of the prosecutrix. He further stated that he and the prosecutrix got married on 07.10.2011 with free will and consent of the prosecutrix as they were in love with each other. He stated that he has filed a nikahnama on record. He also stated that the prosecutrix herself came to him for their marriage. He stated that he has not committed any offence.
22. I have heard learned Addl. PP for the State and the learned defence counsel/amicus curiae and perused the record.
23. PW1 (prosecutrix) has deposed that in the year 2011, she was studying at Sarvodaya Bal Vidhalaya No.2 at Yamuna Vihar. Accused was residing in her neighbourhood alongwith his parents. In the intervening night of 24-25.9.2011, she went with accused to Agra where they resided in a hotel as husband and wife. She deposed that they made physical relations. She further deposed that on 26.9.2011 she alongwith the accused was apprehended from outside the court complex. From her possession a sum of Rs.48,500/-, artificial jewellery items, two mobile phones, charger, black colour bag, clothes were recovered. She deposed that she had gone with the accused without the consent of her parents. She further SC No.136/13 State v. Rizwan Page 10 of 22 deposed that she did not know the date, month and year when she was born. However, at the relevant time, she was 16 years 5 months old. She deposed that she was taken to GTB Hospital for her medical examination and her clothes were seized in the hospital. She deposed that her statement u/s 164 Cr.P.C Ex.PW1/A was got recorded by the learned Metropolitan Magistrate. The prosecutrix identified the photocopies of currency notes of Rs.48,500/- in the denomination of Rs.500/- which were released on superdari to her father. She also identified two mobile phones of LG and Nokia make as Ex.PW9/P2 and Ex.PW9/P3 which were on superdari. This witness also identified one charger Ex.PW9/P4.
24. The prosecutrix further deposed that the accused asked her to accompany him and take some money as he wanted to pay the same to someone. She has also deposed that the accused enticed to marry her and took her to Agra where she was kept at the flat of the sister of accused. The family members of the accused were also present in that flat. Mother of the accused told her not to go to house of her parents as they were in anger and they will not allow her (prosecutrix) to visit them. Prosecutrix also deposed that sister of accused told her that police is searching for them and she advised the prosecutrix and SC No.136/13 State v. Rizwan Page 11 of 22 accused to appear in the court. The prosecutrix and the accused were called by their advocate through telephone and when they reached the court premises, they were got apprehended by the police.
25. Prosecutrix was cross examined on behalf of accused.
26. PW4 mother of the prosecutrix has deposed that her daughter ( prosecutrix) aged about 17 years was taken away by accused alongwith Rs. 2 lacs in cash and jewellery items. She deposed that accused used to entice her daughter and used to say that he will start business with her daughter out of this money but he did not start the business and kept her daughter in confinement. She further deposed that for one day her daughter was kept at Dilshad Garden. Thereafter one day at Nangloi and for one day at Bhopura. She further deposed that her daughter tried to contact her family members during this period but the accused did not allow her to do so. She deposed that Rs.48,500/- in cash and some jewellery were recovered from the accused and the complete jewellery could not be recovered as the same were misappropriated by him. She deposed that her daughter was medically examined at GTB Hospital.
SC No.136/13 State v. Rizwan Page 12 of 2227. PW9 father of the prosecutrix deposed that on 26.9.2011 his daughter (prosecutrix) aged about 16 years and 6 months was found missing from his house with Rs.2 lacs, mobile phone of her brother, some artificial jewellery and some clothes. This witness searched the prosecutrix but she could not be found. He deposed that on enquiry, he found that one Kalan had kidnapped his daughter. He went to police station and lodged a complaint Ex. PW9/A. He further deposed that after 10-12 days, he found his daughter with accused near Bhajanpura Dargah. He immediately informed the SHO Gokalpuri who alongwith his staff reached near Dargah and apprehended the accused. Accused was arrested vide arrest memo Ex. PW9/B. After medical examination of his daughter she was handed over to him vide handing over memo Ex. PW9/C. After recovery of his daughter, her bag was searched and Rs. 48,500/-, two mobile phones, some jewellery, charger and some clothes were recovered which were seized by the police vide memo Ex.PW9/D. This witness identified the case property i.e. currency notes of Rs.48,500/-, two mobile phones and two chargers as Ex. PW9/P1 to Ex. PW9/P5.
28. The accused is facing prosecution u/s 363/366 IPC.
SC No.136/13 State v. Rizwan Page 13 of 2229. 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. Thus, in order to establish that a person has committed the offence of kidnapping, the prosecution is required to show:
(a) victim was a minor;
(b) taking or enticing such minor out of the lawful guardianship;
(c) without the consent of the guardian.
30. In oder to establish the age of the prosecutrix, the prosecution has summoned the school record pertaining to the prosecutrix from her school namely Govt. Girls Senior Secondary School, B-Block No.2, Yamuna Vihar, Delhi. The witness from the school appeared as PW5 and produced the relevant admission register Ex.PW5/A of the school and the admission form Ex.PW5/B submitted by the father of the prosecutrix on 01.04.2008. These documents SC No.136/13 State v. Rizwan Page 14 of 22 record the date of birth of the prosecutrix as 14.03.1995. PW5 also produced the school leaving certificate Ex.PW5/C of the earlier school of the prosecutrix namely Standard Public School, Chand Bagh, Delhi wherein the prosecutrix had studied between 04.04.2005 to 31.03.2008. This document Ex.PW5/C also records the date of birth of prosecutrix as 14.03.1995. PW4 mother of the prosecutrix also deposed that prosecutrix was 16½ years of age at the time of incident. In the circumstances it stands established that the prosecutrix was below 18 years of age on the day when she left her home with the accused.
31. In the instant case, the prosecutrix has deposed that the accused had asked her to accompany him and also carry some money as he wanted to pay someone. Accused enticed her to marry him and he took her to Agra. In her cross examination, the prosecutrix stated that the accused had assured her that they will live together and therefore she left with him and did not raise any alarm when he came to take her on the day of incident. She also deposed that the accused used to follow her prior to the date of incident when she used to go to school and market.
32. PW4 mother of the prosecutrix has also deposed that the accused had taken away the prosecutrix alongwith SC No.136/13 State v. Rizwan Page 15 of 22 Rs. 2 lacs in cash and jewellery items. PW4 also deposed that she had kept Rs. 2 lacs cash in the house to purchase a plot which was on sale in adjoining area. She has deposed that she had arranged Rs. 2 lacs i.e. Rs. 1 lac from brother in law (bahnoi), Rs. 50,000/- was taken from a chit fund and Rs.50,000/- from her savings. In her evidence she has also given the particulars of the chit fund. The amount of Rs.48,500/- was recovered from the bag which the prosecutrix and the accused were carrying at the time when the prosecutrix and accused were apprehended at Delhi on 08.10.2011.
33. There is no reason to disbelieve the prosecutrix and her mother. The evidence of PW4 (mother of the prosecutrix) finds support from the evidence of PW9 (father of the prosecutrix), deposition of PW14 (IO SI Rano Devi), PW2 Ct. Rakesh Kumar and the seizure memo Ex.PW9/D of recovered articles. PW4, PW9, PW14 and PW2 have deposed that on 08.10.2011 at the time of apprehension of the accused, the prosecutrix was with him and she was carrying a sum of Rs.48,500/-. Nothing substantial has come out in the cross examination of these witnesses in favour of accused.
34. In these circumstances, I am of the opinion that SC No.136/13 State v. Rizwan Page 16 of 22 the prosecution has been able to establish that the prosecutrix was taken and enticed by the accused out of the lawful guardianship of her father.
35. The contention on behalf of the accused that the present is not a case of taking or enticing but that of prosecutrix voluntarily leaving her house cannot be accepted. Even if it is presumed that the prosecutrix had left her house of her own wish, the evidence on record would show that this wish was brought about by inducement of marriage and cohabitation extended by the accused to the prosecutrix. May be the accused and the prosecutrix at that time were in love with each other but the offence of kidnapping would still be made out as the leaving of the guardianship of the prosecutrix was a result of the inducement and enticement on the part of accused. In Thakorlal D. Vadgama vs. The State of Gujarat (AIR 1973 SC 2313), the Hon'ble Supreme Court has observed as follows:
"The word "entice" seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle depending for their success on the mental state of the person at the time when the inducement is intended to operate.SC No.136/13 State v. Rizwan Page 17 of 22
This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words "takes" and "entices", as used in Section 361, I.P.C. are, in our opinion, intended to be read together so that each takes to some extent its colour and contents from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty partly, then the latter cannot be considered to have committed the offence as defined in Section 361, I.P.C. But if the guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian's custody or keeping and going to the guilty party, then prima facie it would be difficult for him to plead innocence on the ground that the minor had voluntarily come to him. If he had at an earlier stage solicited or induced her in any manner to leave her father's protection, by conveying or indicating an encouraging suggestion that he would give her shelter, then the mere circumstance that his act was not the immediate cause of her leaving her parental home or guardian's custody would constitute no valid defence and would not absolve him."SC No.136/13 State v. Rizwan Page 18 of 22
36. The taking of prosecutrix from the lawful guardianship of her father (PW9) was obviously without the consent of PW9. This is otherwise apparent from the conduct of PW9 i.e. father of the prosecutrix immediately going to the police station and lodging complaint Ex.PW9/A regarding missing of his daughter.
37. In these circumstances, the commission of offence of kidnapping by the accused stands established and thus accused is liable to be convicted u/s 363 IPC.
38. The accused is also facing trial for the commission of offence punishable u/s 366 IPC. Section 366 IPC 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.
39. In order to establish an offence punishable u/s SC No.136/13 State v. Rizwan Page 19 of 22 366 IPC, it is essential that victim must have been kidnapped for compelling her to marry any person or for forcing or seducing her for illicit intercourse. However, I am of the opinion that evidence on record does not indicate that the accused kidnapped the prosecutrix with intention to marry her against her will or in order to that she may be compelled or seduced to illicit sexual intercourse. There is no evidence to the effect that the accused had forced the prosecutrix to marry him. On the other hand, it would appear from the evidence on record that at that time the accused and the prosecutrix were in love with each other though now they have mentally separated.
40. The charge framed by my learned predecessor vide order dated 03.02.2012 against the accused was confined to offences punishable under section 363/366 IPC. No charge was framed for the commission of offence of rape punishable u/s 376 IPC.
41. The prosecutrix stated that the accused and she had made physical relations. This fact is otherwise apparent from FSL report dated 23.8.2012 Ex.PW16/A wherein the DNA profile obtained from vaginal secretion of prosecutrix was found similar with the DNA profile obtained SC No.136/13 State v. Rizwan Page 20 of 22 from the blood sample of the accused. The prosecutrix at the end of her cross examination stated that there was no marriage between her and the accused and the accused made physical relations with her by force. She also stated that her statement u/s 164 Cr.P.C before the learned Metropolitan Magistrate was not correct as she was scared.
42. During investigation, accused was in custody and the prosecutrix has not stated that as to what was the cause of her fear. To my mind, statement of prosecutrix on this aspect in court is only indicative of the fact that the prosecutrix and the accused have now mentally separated. Bald explanation of prosecutrix that she had stated in her statement u/s 164 Cr.P.C about her marriage with accused due to fear in the facts and circumstances of this case cannot be accepted.
43. The prosecutrix did not dispute her marriage with the accused during the investigation of the case. In her statement u/s 164 Cr.P.C (Ex.PW1/A) the prosecutrix had stated that on the intervening night of 24-25.9.2011, she left her house with accused. She got married with the accused and they lived together as husband and wife. She also stated that no rape was committed on her and she got married out of her own free will. Perusal of record would SC No.136/13 State v. Rizwan Page 21 of 22 further show that during the proceedings before the learned Metropolitan Magistrate dated 14.2.2012, 16.2.2012 and 22.2.2012 the prosecutrix was reluctant to go with her parents after making her statement u/s 164 Cr.PC as she had apprehension that she would be forced to marry elsewhere against her wish.
44. In view of above discussion, I am of the opinion that the prosecution has not been able to prove the commission of offence punishable u/s 366 IPC against the accused and he is liable to be acquitted of the charged offence punishable u/s 366 IPC.
45. In view of above, it is held that the prosecution has not been able to prove its case against accused for the commission of offence punishable u/s 366 IPC. Thus accused is acquitted for the offence punishable u/s 366 IPC. However, the prosecution has been able to prove its case against accused for the commission of offence punishable u/s 363 IPC. Thus, the accused is convicted for the offence punishable u/s 363 IPC.
Announced in the open court on 16.10.2014 (Sarita Birbal) Additional Sessions Judge, (SFTC), Karkardooma Courts, Delhi SC No.136/13 State v. Rizwan Page 22 of 22