Delhi District Court
State vs . Parvez Jamal on 19 November, 2013
State Vs. Parvez Jamal
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 45 of 2013
ID No. 02401R0060752013
FIR No. : 129/12
Police Station : Kamla Market
Under Section : 363/366A/376 IPC
State
Versus
Parvez Jamal
S/o Zameel @ Janual Ahmed
R/o D-21, New Seelampur Market,
Seelampur, Delhi
.............Accused
Date of Institution : 08.02.2013
Date of committal of case : 16.02.2013
Date of Judgment reserved on : 12.11.2013
Date of judgment : 19.11.2013
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State
Sh. S. N. Khan, Advocate, counsel for accused
SC No. 45/13 Page 1 of 17
State Vs. Parvez Jamal
J U D G M E N T:-
1. Briefly stated facts of prosecution case are that on November 8, 2012, complainant (since he is the father of victim of sexual assault, in order to withhold the identity of victim, his identity is also withheld and hereinafter he is referred to as complainant or father of the victim) lodged a report Ex. PW3/A at police station Kamla Market alleging that his daughter aged about 15 years was missing from yesterday and he had apprehension that she had been kidnapped by some unknown person. Upon his complaint, an FIR for the offence punishable under Section 363 IPC was got registered. It was alleged that on November 9, 2012, complainant informed the investigating officer that his daughter i.e. victim had made a call to him from mobile phone bearing No. 9999636467 and informed him that she was all right. On the basis of location of mobile phone, victim and accused Parvez Jamal were apprehended from Seelampur, Delhi. During medical examination of victim, it was revealed that she was subjected to sexual intercourse.
(i) It was alleged that in her statement, victim alleged that on November 7, 2012 accused had kidnapped her on the pretext that he would marry with her and thereafter, he took her to his native village Ratole, District Bagpat. It was further alleged that on November 8, 2012 accused brought her to Delhi at Nizamuddin Dargaha and solemnized Nikha with her after disclosing her age as 20 years. It was further alleged that thereafter, accused had maintained physical relations with her stating that now they had become husband and wife. Thereafter, in the night of November 9, 2012, accused brought her to Seelampur, Delhi. Police rescued the victim on November 10, 2012. During investigation, her statement under Section SC No. 45/13 Page 2 of 17 State Vs. Parvez Jamal 164 Cr.P.C was got recorded. But she did not support the prosecution case in her statement recorded under Section 164 Cr.P.C. During investigation, investigating officer also collected the documents relating to the age of victim and as per her school record, she was born on November 1, 2001.
2. After completing investigation, challan was filed against the accused for the offence punishable under Section 363/376/366A IPC.
3. After compliance of provisions of Section 207 Cr.P.C, case was committed to the Court of Sessions on February 12, 2013, thereafter, case was assigned to this Court on February 16, 2013. Accordingly, case was registered as SC No. 45/13.
4. Vide order dated July 4, 2013, a charge for the offence punishable under Section 363/376 IPC was framed against accused to which he pleaded not guilty and claimed trial.
5. In order to bring home the guilt of accused, prosecution has examined as many as following 6 witnesses:-
PW1 HC Rati Ram, duty officer, proved the FIR
PW2 Ms. Nazra Begum, Prinicipal of school, proved the
date of birth of victim as per school record
PW3 Complainant, father of victim
PW4 Victim, herself
PW5 SI Asha, formal witness
PW6 Insp.Gaurav Tiwari, investigating officer
6. On culmination of prosecution evidence, accused was SC No. 45/13 Page 3 of 17 State Vs. Parvez Jamal examined under Section 313 Cr. P.C. wherein he denied all the incriminating evidence led by the prosecution and submitted that he and victim were in love and victim had married to him of her on volition without any pressure or inducement from any corner and thereafter, they started living as husband and wife and they had physical relations. However, accused failed to lead any evidence in his defence.
7. Learned counsel appearing for accused sagaciously contended that there is no iota of evidence to prove that accused had either kidnapped the victim or he had committed any rape upon her. It was contended that victim was above 15 years of age at the time of alleged incident and she also admitted that at the time of marriage, she had disclosed her age as 20 years to the Maulvi. It was submitted that PW4 also admitted that they (victim and accused) had maintained physical relations after marriage, thus it was contended that the case of accused falls within the exception to Section 375 Pre-Amended. It was argued that though in her school record, her date of birth is mentioned as January 11, 2001, but submitted that from her birth certificate, it is proved that her date of birth is January 19, 1997, thus, she was above 15 years at the time of above incident. It was further contended that she was at the age of puberty and this fact is proved from her statement under Section 164 Cr.P.C. It was contended that under Mahomedan law, marriage at the age of puberty is valid marriage and in support of his contention he relied upon the judgment Mrs. Tahra Begum vs. State of Delhi & ors. (Crl. No. 446/2012 decided by the Hon'ble High Court of Delhi on May 09, 2012). Thus, it was contended that since accused and victim had maintained physical relations after their marriage, accused had not committed any offence.
SC No. 45/13 Page 4 of 17State Vs. Parvez Jamal 8 Per contra, learned Additional Public Prosecutor for the State refuted the said contentions by arguing sagaciously that since victim was below 15 years of age, accused is liable for the offence punishable under Section 376 IPC. It was submitted that since her age in school is mentioned as January 11, 2001, there is no reason to disbelieve the same. However, he conceded that victim has not supported the prosecution case in her deposition.
9. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
10. Pivotal point emerges from their submissions for adjudication is what was the age of victim at the time of alleged incident?
11. Criminal law was set in motion on the complaint Ex. PW3/A lodged by the father of victim wherein he categorically alleged that the age of his daughter is 15 years. When he graced the witness box as PW2, he deposed that date of birth of his daughter (victim) is January 19, 1997. Prosecution has not disputed his testimony, thus, his testimony to that extent remained unrebutted on the part of prosecution. In other words, prosecution admitted that the date of birth of victim was January 19, 1997. PW4 victim of the crime also deposed in her examination-in-chief that her date of birth is January 19, 1997. Even investigating officer PW6 in his cross-examination deposed that as per the record furnished by the parents of victim, victim was about 15 years 10 months old at the time of incident. It is admitted case of the prosecution that during investigation, parents of the victim had furnished the copy of her birth certificate (Ex. PW3/B) wherein her date of birth is mentioned as January 19, 1997. Thus, from the SC No. 45/13 Page 5 of 17 State Vs. Parvez Jamal deposition of above said witnesses and documents, it is proved that the date of birth of victim is January 19, 1997.
12. However, PW2 Smt. Nazra Begum, Principal of Primary school deposed that at the time of admission of victim, her parents disclosed her date of birth as January 11, 2001. But in her cross- examination, she admitted that at the time of her admission, her parents had not furnished the birth certificate of the victim. Thus, it becomes clear that at the time of getting the victim admitted in the school, her parents had not furnished the birth certificate of victim. Since, it has already been proved that as per the birth certificate issued by MCD, date of birth of the victim is January 19, 1997, it becomes clear that the parents of the victim had withheld the said document deliberately while getting admitting the victim in the school.
13. No doubt, under Rule 12 of Juvenile Justice (Care & Protection of Children) Rules 2007, it is stated that the findings in support of age of a child or the evidence specified in clause (a)(i), (ii), (iii) or in absence where of clause (b) shall be the conclusive proof of age of child or juvenile. The relevant portion of Rule 12 is reproduced as under:
(3) In every case concerning a child or juvenile in 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;SC No. 45/13 Page 6 of 17
State Vs. Parvez Jamal
(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 the juvenile or child. In case exact assessment of the age for the reasons to be recorded by them, may, if considered necessary, give 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, record a finding in respect of his age and either of the evidence 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 regards such child or the juvenile in conflict with law.
(emphasis supplied)
14. Bare perusal of clause (b) to Rule 12 proves that the Medical Board will be constituted if there is no document about the age of child as mentioned in clause (a) (i), (ii) or (iii). Further perusal of the clause
(b) establishes that where any Medical Board is constituted and Court has taken into consideration any evidence, Court shall record a finding in support of the age of child and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence of clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. There is nothing in clause (b) to sub Rule 3 that the Court shall give any preference to the documents mentioned in clause a(i), (ii) or (iii) despite the fact that there is cogent evidence on record.
15. As already discussed that complainant had categorically alleged that his daughter was above 15 years at the time of lodging the SC No. 45/13 Page 7 of 17 State Vs. Parvez Jamal complaint and thereafter, on oath he deposed that the date of birth of his daughter is January 19, 1997 and he proved the birth certificate Ex. PW3/B. Victim also admitted that her date of birth is January 19, 1997 and the said document and their deposition is not rebutted by the prosecution during trial, thus, this Court has no reason to disbelieve their testimony. Mere fact that date of birth of victim is mentioned in school record as January 11, 2001 is not sufficient to discard the birth certificate of victim and the deposition of PW3 & PW4 especially when there is no iota of evidence on record to establish on what basis, her date of birth was got recorded in the school as January 11, 2001.
16. In view of the above discussion, I am of the considered opinion that date of birth of victim is January 19, 1997 and not January 11, 2001. Since, the alleged incident had taken place on November 7, 2012, thus victim was 15 years 9 months and 16 days old at the time of incident.
17. Next question arises as to whether there is any evidence on record to prove that the accused had enticed the victim in any manner?
18. In this regard, the testimony of PW4 is relevant. In her deposition she categorically deposed that she loved the accused and on November 7, 2012, she went to Zakir Hussain College where accused met her and she told him that she wanted to marry him and asked him to take her. Thereafter, they went to village Ratole. She further testified that on the next day, they solemnized Nikha at Kotla Firozshaha, Delhi and thereafter, went to the house of accused at Seelampur, Delhi. Though PW4 was cross-examined at length by learned Additional Public Prosecutor but nothing could be extracted in her cross-examination which may help the prosecution to prove that accused had enticed or induced the victim in any SC No. 45/13 Page 8 of 17 State Vs. Parvez Jamal manner. In her cross-examination, she categorically admitted that accused did not induce her in any manner and she accompanied the accused on her own volition. Rather she deposed that she had forced the accused to take her from Delhi. She further clarified that her parents were restraining her from living with the accused. This shows that parents of the victim did not like the accused and victim had eloped with the accused against their wishes.
19. No doubt victim was much below 18 years when she eloped with the accused on November 7, 2012, thus a question arises as to whether the act of accused to take the victim from the lawful guardianship amounts kidnapping as defined under Section 361 IPC or not?
20. In order to prove the guilt of accused for the offence punishable under Section 363 IPC, prosecution is duty bound to fulfil the requirements of kidnapping as defined under section 361 IPC and same runs as under:-
"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 such guardian, is said to kidnap such minor or person from lawful guardianship."
(emphasis supplied) Taking or enticing away a minor out of keeping of lawful guardian is an essential ingredient of the offence of kidnapping.
21. In case S.Varadarajan v. State of Madras AIR 1965 SC 942, it was held:-
SC No. 45/13 Page 9 of 17State Vs. Parvez Jamal Para7 : ".....It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to "taking" out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Natarajan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law "taking". There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub-Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompany him the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was of course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back SC No. 45/13 Page 10 of 17 State Vs. Parvez Jamal to her father's house or even of telling her not to accompany him."
Para-9: "It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian."
"It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking".
(emphasis supplied)
22. In Case Parkash v. State of Haryana, AIR 2004, SC 277, it was held:-
Para 6...."The object of this section seems as much to SC No. 45/13 Page 11 of 17 State Vs. Parvez Jamal protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor . . . . . . . . . . . . . . . . . . . . . . . . out of the keeping of the lawful guardian of such minor" in Section 361, are significant. The use of the word "Keeping" in the context connotes the idea of charge, protection, maintenance and control; further the guardian's charge and control appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial : it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuation by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the Section . Para 7: "In State of Haryana v. Raja Ram (1973 (1) SCC
544) English decisions were noticed by this Court for the purpose of illustrating the scope of the protection of minor children and of the sacred right of their parents and guardians to the possession of minor children under the English Law. The decisions noticed were Reg v. Job Timmins (169 English Reports 1260); Reg v. Handley and another, (175 English Reports 890) and Reg v. Robb (176 English Reports 466). In the first case Job Timmins was convicted of an indictment framed upon 9 Geo. IV, Clause 31, Section 20 for taking an unmarried girl under sixteen out of the possession of her father, and against his will. It was observed by Erle, C. J. that the statute was passed for the protection of parents and for preventing unmarried girls from being taken out of possession of their parents against their will. Limiting the judgment to the facts of that case it was said that no deception or forwardness on the part of the girl in such cases could prevent the person taking her away from being guilty of the offence in question. The second decision is authority for the view that in order to constitute an offence under 9 Geo. IV, Clause 31, Section 20 it is sufficient if by moral force a willingness on the part SC No. 45/13 Page 12 of 17 State Vs. Parvez Jamal of the girl to go away with the prisoner is created; but if her going away with the prisoner is entirely voluntary, no offence is committed. The last case was of a conviction under the Statute (24 and 25 Vict. Clause 100, Section
55). There inducement by previous promise or persuasion was held sufficient to bring the case within the mischief of the State. In the English Statutes the expression used was "take out of the possession" and not "out of the keeping"
as used in Section 361, I. P. C. But that expression was construed in the English decisions not to require actual manual possession. It was enough if at the time of the taking the girl continued under the care, charge and control of the parent : See Reg v. Manketelow (6 Cox Criminal Cases 143). These decisions were held to confirm the view that Section 361 is designed also to protect the sacred right of the guardians with respect to their minor wards. Para8: "The position was again reiterated in Thakorlal D. Vadgama v. The State of Gujarat (AIR 1973 SC 2313) wherein it was, inter alia, observed as follows : "The expression used in Section 361, I.P.C. is "whoever takes or entices any minor". The word "takes" does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, "to cause to go," "to escort" or "to get into possession". No doubt it does mean physical taking, but not necessarily by use of force or fraud. 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. 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 content 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 party, then the latter cannot be considered to have committed the offence as defined in Section 361, I. P. C."
(emphasis supplied) SC No. 45/13 Page 13 of 17 State Vs. Parvez Jamal
23. In the light of above settled proposition of law, I am of the opinion that mere fact that accused had acceded to the request of victim and took her to his native village as desired by PW4 does not fulfil the ingredients of Section 361 IPC, thus, I am of the view that prosecution has miserably failed to bring home the guilt of accused for the offence punishable under Section 363 IPC.
24. Now question arises as to whether there is any evidence to fulfil the ingredients of Section 375 IPC or not?
25. Since, the alleged incident of taken place on November 7, 2012, the provisions of Section 375 IPC Pre-Amended will be applicable in the present matter. Rape is defined under Section 375 IPC and relevant portion is reproduced 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:-
Firstly- ..........
Secondly- .........
Thirdly-.................
Fourthly-................
Fifthly-..................
Sixthly- With or without her consent, when she is under sixteen years of age.
Explanation-................
Exception:- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
(emphasis supplied) SC No. 45/13 Page 14 of 17 State Vs. Parvez Jamal
26. Admittedly, victim was below 16 years at the time of incident. But question arises as to whether the case of accused falls under exception to Section 375 or not?
27. In this regard, the testimony of PW4 is relevant.
28. PW4 in her deposition categorically deposed that they (victim and accused) solemnized Nikha on November 8, 2012 at Kotla Firozshaha and thereafter, they went to the house of accused at Seelampur, Delhi. She further deposed that after marriage, they lived as husband and wife and they had maintained physical relations. Though PW4 was cross-examined in depth by learned Additional Public Prosecutor but nothing could be extracted during her cross-examination which may help the prosecution to prove that accused had maintained physical relations with victim prior to marriage. In her cross-examination, she admitted that she had maintained physical relations with the accused after marriage with her own volition without any inducement or influence from the accused. Thus, it proves that victim had maintained physical relations with the accused only after marriage with her own volition, consent and without any influence from any corner and not prior to marriage.
28. In case Tahra Begum (supra), it has been held by the Lordship :-
4. This Court notes that according to Mohammedan Law a girl can marry without the consent of her parents once she attains the age of puberty and she has the right to reside with her husband even if she is below the age of 18.
The Patna High Court in case of Md. Idris vs. State of Bihar & Ors. 1980 Crl.L.J 764 observed that:
SC No. 45/13 Page 15 of 17State Vs. Parvez Jamal "Whether respondent No.5, who was below 18 years of age, could have married without the consent of her parents is another question which was seriously contended before us. But, as I shall immediately indicate, under the Mohomedan Law a girl, who has attained the age of puberty, can marry without the consent of her parents. In this connection reference can be made to Article 251 of Mulla's Principles of Mahomedan Law which says that every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage. The explanation to the said Article says that puberty is presumed. In absence of evidence, on completion of the age of 15 years. Even in Tyabji's Muslim Law under Article 27 is mentioned that a girl reaching the age of puberty can marry without the consent of her guardian. Article 268 of Mulla's Principles of Mahomedan Law says that the marriage will be presumed, in the absence of direct proof, by mere fact of acknowledgement by the man of he woman as wife. Article 90 of Tyabji's Muslim Law also says that a marriage is to be presumed on the acknowledgement of either party to the marriage. As such, he has to be held that under Mahomedan Law a girl, who has reached the age of puberty i.e. in normal course at the age of 15 years, can marry without the consent of her guardian.
.................
................
................
5. In view of the above judgment, it is clear that a Muslim girl who has attained puberty i.e. 15 years can marry and such a marriage would not be a void marriage. However, she has the option of treating the marriage as voidable, at the time of her attaining the age of majority, i.e. 18 years.
(emphasis supplied)
29. In the preliminary interrogation conduced by leaned Metropolitan Magistrate at the time of recording the statement of victim SC No. 45/13 Page 16 of 17 State Vs. Parvez Jamal under Section 164 Cr.P.C, she stated that she used to perform Roja but could not perform continuously as in some days, she could not recite Kuran as it would be a sin to recite Kuran. This shows that she had attained the age of puberty. Moreover, it has already been held that victim was above 15 years at the time of marriage.
30. In view of the aforesaid judgment, she was competent to perform marriage with the accused. Since, she had maintained physical relations with the accused after marriage, the present case falls within the exception to Section 375 IPC.
31. Pondering over the ongoing discussion, I am of the opinion that prosecution has miserably failed to bring home the guilt of accused for the offence punishable under Section 363/376 IPC, thus, I hereby acquit the accused Parvez Jamal from all charges.
Announced in the open Court on this 19th day of November, 2013 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI SC No. 45/13 Page 17 of 17