Delhi District Court
State vs . 1. Nazma Khatun on 3 July, 2009
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE04 (NORTH) : DELHI
SC No. 49/2008
FIR No. 434/03
PS : Kotwali
U/s 372/373/354/363/366A/376/34 IPC
State Vs. 1. Nazma Khatun
W/o Mohd. Azad
R/o Jhuggi No. C9C210,
Bihari Basti, Yamuna Pushta,
Delhi.
2. Mohd. Azad
S/o Mohd. Abir
R/o Jhuggi No. C9C210,
Bihari Basti, Yamuna Pushta,
Delhi.
3. Attar Singh
S/o Ram Saran
R/o Village Raji Khera,
PS Sayeed, Nagnli,
Distt. Muradabad (UP).
4. Rajesh Kumar Tyagi @ Chotu
S/o Ranbir
R/o Village Bhura Begum Pur,
Distt. Muradabad, U.P.
Case assigned to Sessions on : 09.01.2004
Arguments concluded on : 02.07.2009
Date of pronouncement of judgment : 03.07.2009
: J U D G M E N T :
1. All the above named accused persons were booked by SHO PS State Vs. Nazma Khatun etc. Page No. 1 of pages 52 Kotwali U/s 372/373/354/363/366A/376/34 IPC with the allegations of having committed various offences like kidnapping and rape of minor girls etc. Accused Rajesh Kumar Tyagi was charged with offence punishable u/Sec. 373/376 IPC whereas, accused Nazma Khatun and Mohd. Azad were charged with the offence punishable u/Sec. 363/366A/372/34 IPC and accused Attar Singh was charged with the offence punishable u/Sec. 373 IPC.
2. FACTUAL MATRIX: It is the case of the prosecution that on 21.07.2003 Rehana and Hasina were found missing from her home in Jahangirpuri. The parents of these girls searched for them but in vain. They were reportedly seen with one Gulabi. It was informed that the girls had gone with the accused Nazma Khatoon. On 24.07.2003, the father of Rehana namely Jahangir went to the police station concerned i.e. Kotwali and lodged a complaint there. On the basis of his complaint, the police registered the FIR bearing no.434/03 u/Sec. 363 IPC. The father of the girl Rehana also contacted with the NGO STOP's Office of Yamuna Pushta and social worker. Then the NGO workers Nagina and Shaboo alongwith police officials went to Village Basia, Distt. Muradabad and girls were rescued and were brought to Delhi. They were medically examined and State Vs. Nazma Khatun etc. Page No. 2 of pages 52 their statements were recorded by the police.
In her statement u/Sec. 161 Cr. P. C Rehana stated that on 21.07.2003 her father had rebuked her and she was weeping in the gali. The accused Nazma Khatoon approached and asked her as to why she was weeping. The minor girl told the accused that her father often used to rebuke her, on this Nazma told her that she knows one girl Haseena, whose father also used to rebuke her and told her that she would take both of them to some other place and keep along with her. In the manner the girl was allured and taken by said Nazma. On reaching the house of Nazma, her husband and one Haseena were found present there. First of all, Nazma took both the girls to the house of her sister in Jahangirpuri and from there on next day to Moradabad (UP) there they kept the girls in the hotel and on next day they took the girls to the village Basai. In Basai village in the house of Sheela, who was present with two other persons. One of them had given Rs.7,000/ to Nazma and purchased Haseena and another person Chhotu purchased her for Rs.5,000/. When she refused to go with him, she was beaten up and was taken at a lonely place in the house where Munni and Asma were present. As she was weeping, she was taken to a jungle by a person, and from there she ran away and went to a house which happened to be the State Vs. Nazma Khatun etc. Page No. 3 of pages 52 house of Pradhan. The pradhan had taken her address and she was kept there for 1015 days. The pradhan had sent one person to Delhi who was rikhshaw puller and the whereabouts of her house was traced and her parents were informed. Her father alongwith the police officials reached there and she was brought to Delhi. She alongwith the police officials went to village Basia but accused Nazma was not found in her house. Thereafter, they met one Halwadar and he took them to one another house where accused Nazma and Mohd. Azad were found residing with Chhotu and Haseena. Accused Chhotu was not found there. He was already fled away from the spot and as such he could not be apprehended but other accused persons were apprehended from the spot. Haseena in her statement recorded u/Sec.161 Cr.P.C made specific allegations that accused Md. Azad met her in her jhuggi and offered her to come to his sisters house at Nand Nagri with him, when she refused to accompany him, he threatened her to kill her parents. She was taken alongwith Rehana to Basia village, where the accused Mohd. Azad and accused Nazma sold her to accused Chhotu (Rajesh) in Rs.5,000/. Rajesh raped her 2/3 times a day up to 6/7 days against her will and without her consent while threatening her to kill her parents. One minor girl Asma (12 years) also stated that Nazma is her chachi and she State Vs. Nazma Khatun etc. Page No. 4 of pages 52 took her also to village Basia and sold her for Rs.5,000/ to the accused Attar Singh. She stated that when Nazma visited the house of Attar Singh, she requested her to sent her back to her parents but the accused Nazma replied that Attar Singh had already purchased her and given Rs.5,000/ for her.
On the basis of the statements of girls, Section 354/372/373/ 366A/376/34 IPC were added. The statements of girls were also got recorded u/Sec. 164 Cr.P.C by the Magistrate. Thereafter, on completion of the investigation the charge sheet was filed before the court of Ld. Metropolitan Magistrate concerned. As the offence is exclusively triable by the court of sessions, so the case was committed to sessions and than by way of assignment the case was received in this court.
3. After hearing respective submissions of the counsels for the parties and on finding sufficient prima facie material for farming of charge, a charge u/Sec.363/366/372/34 IPC was framed against the accused Nazma and Mohd. Azad both. Further a charge u/Sec.373/376 IPC was also framed against accused Rajesh Kumar Tyagi and also a separate charge u/Sec. 373 IPC was framed against accused Attar Singh. All the accused persons pleaded not guilty and claimed trial.
4. In support of its case, prosecution has examined 23 witnesses.
State Vs. Nazma Khatun etc. Page No. 5 of pages 52 Out of them PW8, PW10, PW11, PW15, PW19, PW20, PW21 & PW23 are formal witnesses, PW9, PW14 & PW16 are medical/expert witnesses and PW1, PW2, PW3, PW4, PW5, PW6, PW7, PW12, PW13, PW17, PW18 & PW22 are the material witnesses.
5. FORMAL WITNESSES: PW 8 ASI Ram Kumar is the formal witness, who had recorded the FIR Ex.PW8/A in this case and made endorsement on rukka as Ex.PW8/B. He proved the said document by bringing the originals.
PW10 is Ct. Sanjeev Kumar, who was in the team of investigation alongwith IO SI Khushal Singh. In his presence, disclosure statement of accused Azad Ex.PW10/A was recorded. He further deposed that had taken accused to Muradabad village alongwith SI Khushal Singh, SI Sudesh Nain and Ct. Virender and at his pointing out accused Attar Singh was arrested vide memo Ex.PW10/B. The pointing out memo was Ex.PW10/C and Personal search memo was Ex.PW10/D. Thereafter, they were told that both the girls namely Asma and Munni had agreed to get marry to two boys and they will return after two days. The girls could not be traced and they came back to Delhi and brought accused Attar Singh to Delhi. Thereafter, accused Attar Singh and Azad got medically examined from JPN Hospital and State Vs. Nazma Khatun etc. Page No. 6 of pages 52 then sent to J/C. PW11 HC Vinod is also a formal witness, who received a missing report vide DD no.57 Ex.PW11/A and flashed that message vide message Ex.PW11/B regarding missing of Rehana. He filled the form of missing person and was sent to missing person squad vide Ex.PW11/C & Ex.PW11/D. He further testified that on 01.08.2003, he was informed by NGO STOP that Rehana was seen at Satpura, Muradabad and he took the permission from higher authorities and went along with Shabbo and Nagma, both the members of NGO STOP and went to Satpura, Muradabad and Rehana was recovered from the custody of Rakshay Pal Sharma, pardhan of village. Statement of Pardhan was recorded by him. They came back to Delhi and handed over the custody of girl to ASI Lallan Prasad, who recorded the statement of Rehana and got the case registered. The witness further testified that on 06.08.2003, he along with SI Khushal Singh and the members of STOP and other police officials went to Village Begampur, Muradabad for recovery of other girl Haseena on the information of STOP and Haseena was recovered from the custody of accused Azad and Nazma. IO arrested accused Azad and Nazma vide arrest memos Ex.PW1/E and F. State Vs. Nazma Khatun etc. Page No. 7 of pages 52 PW15 Ct. Dharam Pal is a formal witness, who testified that on 13.09.2003 he was posted as constable at PS Nakasa, Distt. Muradabad, UP and on that day at about 3.00 p.m. Pradhan of Sambhal village, Distt. Muradabad came to PS with a girl aged about 12 years, whose name was informed as Asma D/o Chhotua R/o Dholakwali Basti, Yamuna Pushta, Delhi and produced her before SO Sh. Praveen Singh Chauhan. The said Pradhan also informed that the girl was sold by some lady namely Nazma in some nearby village. He was sent to Delhi alongwith the girl for her handing over to her parents and he brought her to Delhi and produced before the IO at PS Kotwali.
During cross examination, he stated that he has no personal knowledge about the sale of that girl by accused Nazma to someone in nearby village. He denied the suggestion that Pradhan of Sambhal village did not mention the name of accused Nazma to be the lady who sold Assma.
PW19 Sh. R.K. Singh, Ld. MM proved the statement of prosecutrix Aasma Ex.PW6/A and the same was recorded vide application Ex.PW19/A. Certificate for correctness of the statement of the prosecutrix Aasma is at point X to X which bears his signature at point C. One copy of the statement was given to the IO vide Ex.PW19/B. State Vs. Nazma Khatun etc. Page No. 8 of pages 52 PW20 Sh. Gurdeep Singh, Ld. AD & SJ (the then Ld. MM) proved the statements of girls Rehana, Hasian and Munni @ Sunaina Ex.PW20/B, Ex.PW20/E and Ex.PW4/A respectively and the same were recorded vide applications Ex.PW20/A, Ex.PW20/D and Ex.PW20/G respectively. Certificates for correctness of the statements of the aforesaid girls are at point X to X which bears his signature at point C. One copy each of the statements of aforesaid girls was given to the IO vide Ex.PW20/C, Ex.PW20/F and Ex.PW20/H respectively.
PW21 Sh. B.S. Bhati is the record clerk from LNJP Hospital, Delhi, who brought the original MLCs no.10330 dated 18.09.2003 and no.10203 dated 14.09.2003 in respect of Munni and Aasma Ex.PW21/A and Ex.PW21/B respectively and identified the signatures and handwriting of Dr. Anita and Dr. Deepti Upadhyay on Ex.PW21/A and Ex.PW21/B both at point A. PW23 Sh. Ishwar Singh is an official witness i.e. Record Clerk from Maulana Azad Medical College, who brought the summoned record i.e. office copy of age estimation report Ex.PW22/A in respect of Haseena and identified the signature at point A and handwriting of Dr. D.V. Saharan.
6. MEDICAL/EXPERT WITNESSES: State Vs. Nazma Khatun etc. Page No. 9 of pages 52 PW9 is Dr. P.K. Jain, who had examined the Xray plates pertaining to ossification test of patient Munni on 19.09.2003 and had given his report that Munni was above 18 years. His detailed report is Ex.PW9/A. He also examined Xray plates pertaining to ossification test of patient Asma on 15.10.2003 and was of the opinion that Asma was between 1215 years. His detailed report is Ex.PW9/B. During cross examination, he conceded that there can be a margin of error of two years on either side in the ossification test report.
PW14 Dr. Sumita Mehta in her testimony has deposed that MLC No.6691 is in her handwriting and the said MLC, Ex.PW14/A pertains to Haseena.
PW16 Ms. Roma Debabrata the Senior Professor Delhi University and President of STOP, testified that on 21.07.2003, one child called Rehana D/o Jahangir got missing from Yamuna Pusta. While searching of her daughter, Jahangir came to know that Haseena D/o Hussain was also missing and during search they came to know that both these girls were lastly seen with one lady namely Gulabi and when they contacted the said lady, she informed that two girls were friendly with the lady called Nazma W/o Azad, their neighbour and that the girls would return after twothree days. On 24.07.2003, Jahangir State Vs. Nazma Khatun etc. Page No. 10 of pages 52 lodged the missing report at PP Yamuna Pusta and also contacted STOP office at Yamuna Pushta alongwith copy of complaint, in which the name of suspects Nazma and Gulabi was not mentioned. On 28.07.2003, Jahangir reported the matter at PS Kotwali and she also contacted the local ACP and DCP and on 28.07.2003 police took the action and started searching for the girls. She also deposed that on 31.07.2003 upon receiving a phone call from the Pradhan of village Satpura, Distt. Muradabad, UP regarding presence of Rehana there, Delhi Police sent a rescue team alongwith the Social Worker Nagina and Shabbo to village Satpura, which reached there on 01.08.2003 at 2.00 a.m. and recovered the girl and brought her to Delhi and produced before her. She also testified that on 17.08.2003 Munni was produced in their office at Yamuna Pusta but not before her, however, she was informed that Munni was found roaming in Yamuna Pusta and her community worker dealt with that case.
Upon the request of Ld. Addl. PP for the state, as the said witness was resiling from her earlier statement made before the police, she was cross examined and during cross examination she denied of having made any statement MarkPW16/A before the police. She also denied of having stated that on 17.08.2003 Munni was produced before State Vs. Nazma Khatun etc. Page No. 11 of pages 52 her by Nagina and Shabbo, Social Worker at office situated at Green Park or that she directed to keep Munni at office Narayan Mali Wali Gali, Yamuna Pusta and directed to produce before the police on 18.08.2003.
7. MATERIAL WITNESSES: PW1 (the prosecutrix, on whose statement the investigation was carried out) testified that on 21.07.2003 his father Mohd. Jahangir had rebuked her and she started weeping after going in the gali. There accused Nazma met her and asked why she was weeping. On this, witness told that her father used to rebuke her. On this Nazma told her that another girl Haseena, who was also known to her, was also rebuked by her father and that she would take both of them to some other place and would keep them alongwith her. She further testified that on reaching at house of Nazma, her husband was also found present there alongwith one girl Haseena. First of all, Nazma took her to her sister's house at Jahangir Puri. There, they were kept for one day and on the next day, she alongwith Haseena was taken to bus stop in a TSR from where they were taken to Muradabad and were kept in a hotel and on the next day Nazma had taken them to Basai Village. On reaching there, they were taken to house of one lady whose name was State Vs. Nazma Khatun etc. Page No. 12 of pages 52 Sheela, where alongwith Sheela (the sister of Nazma) two other persons were also found present. One of them gave Rs.7000/ to Nazma towards the purchase of Haseena and she (witness) was purchased for Rs.5000/. The accused Chotu, present in the court, had purchased her for Rs.5000/, but she refused and resented and told them that she wanted to go to her parent's house. She was beaten and was taken to one lonely place in a house where one Munni and Asma met her. She started weeping there and was taken to a jungle by one person. From the jungle she ran away and reached in the house of one Pardhan where she was kept for 1015 days. Pardhan took her address and sent one person to Delhi, who was a rickshaw pullar, and there whereabouts of her house were traced and her parents were informed. Her father alongwith the police persons reached there and she was brought to Delhi and her statement was recorded by the police which is Ex.PW1/A. She further testified that Haseena had not come with her as she was residing in the village at that time. She was inquired by the mother of Haseena and she disclosed whatever she knew. She further testified that she alongwith police went to the Village Basia but the house was shifted by accused Nazma and no accused was found there. Thereafter, one hawaldar met her and told that he could lead them to the house State Vs. Nazma Khatun etc. Page No. 13 of pages 52 where Nazma, her husband, Haseena and Chotu were residing. Then, he led them to the house where all of them were found present except accused as he had already fled away from the spot. However, rest of the accused persons were apprehended from the spot. She further testified that she was produced before the Ld. MM where her statement was recorded and she identified her signatures on the statement recorded by the Ld. MM which was Ex.PW1/B. During cross examination, she claimed that accused Chotu gave Rs.7,000/ to Nazma to buy her in her presence. The house of sister of Chotu was far away from house of Nazma and it took about 22½ hours by bus in reaching there. She was kept there for 15 days, however, she was kept properly. She further stated that she was kept in the house of the sister of Nazma for 7/8 days. From the house of sister of Nazma, she was taken to an another house of Nazma which was situated in the city. She claimed that Haseena took her to the house of Nazma on 21.07.2003 at about 9.30 a.m. From there she was taken to the house of sister of Nazma, where they stayed for over night and next morning they went to Mooradabad. She was accompanied by Azad, Haseena, Nazma and Rehana. They went in village Basai in the house of Sheela. They remained there for 8/9 days. At the house of Sheela her husband State Vs. Nazma Khatun etc. Page No. 14 of pages 52 children and one Chotu and Hawaldar were present.
PW2 Nagina (a Social worker from STOP organization) testified that one day father of Rehana Mohd. Jahangir had come to their organization and had requested them to trace out her daughter Rehana, who had been taken away by one Nazma. Thereafter, she alongwith one Shabbo had taken the father of prosecutrix Rehana to police chowki. A complaint was lodged against Nazma. Thereafter, a person who was the resident of village Basia and was a rickshaw pullar came to their organization and informed that Rehana was with one Pardhan at village Basia. Thereafter, she alongwith Shabbo, father of Rehana and one person Kushan Singh from their organization and police went to village Basia where Rehana was recovered from the house of one Pardhan at Basia. She further testified that in the year 2003, she along with one another social worker Shabbo and an other staff member and the police official went to village Basai, Distt. Muradabad, from where accused Azad, Nazma and Chotu were arrested. The prosecutrix Haseena was also recovered from that place. They were brought to the police chowki at Delhi. Prosecutrix was taken to hospital and after her medical examination, she was sent to Nirmal Chhaya. The prosecutrix disclosed the incident to her mother in her State Vs. Nazma Khatun etc. Page No. 15 of pages 52 presence.
During cross examination, she could not tell the date of arrest of accused persons or the date of lodging of report with the police.
PW3 Shabbo (an another social worker from STOP organization) also confirmed that the girl Rehana was recovered from the house of Pradhan in Basai village in Moradabad. The accused Nazma, Azad, Chotu were also arrested in his presence.
During cross examination, he too could not specify the date when he had gone to village. He also could not tell the name of Pradhan or the date of arrest of accused.
PW4 is Munni, who testified that she was living happily with her husband Satender Tyagi and she was having pregnancy from Satender Tyagi. Accused Attar Singh was his maternal father in law but she had no grievances against him. Earlier she was residing in the jhuggies and before her marriage with Satender Tyagi, she asked accused Nazma to get her married. She stated that she was not taken to any place by accused Nazma Khatun and she got married with Satender at her own free will. She came to Delhi after getting married in the court with Statender Tyagi. The members of STOP organization met her and she was taken to PS from where she was sent to Nari Niketan State Vs. Nazma Khatun etc. Page No. 16 of pages 52 and was produced before the court and her statement Ex.PW4/A was recorded. She conceded that she was taken to Muradabad by accused Nazma.
During cross examination she added that she had handed over her marriage certificate Mark 4A to the police vide seizure memo Ex.PW4/D1.
PW5 Jahangir Sheikh (the father of prosecutrix Rehana) testified that in the year 2003, he alongwith his family members was residing at Sanjay Amar Colony, Dholakwala Basti. Her daughter Rehana, who was married at that time, was found missing from the house along with her friend Haseena and he lodged the missing report at PS which is mark 5A. He came to know from one boy that her daughter was present in the village Basia, Muradabad and accordingly, he informed the police and he alongwith them went to the village Basia in search of his daughter and his daughter was found in the house of Pardhan there. He brought his daughter to the PS alongwith police. His daughter was sent to Nari Niketan. He claimed that in the year 2003, her daughter was 16/17 years old but he could not tell her date, month and year of birth.
PW 6 Asma (an another victim) who was a minor and before State Vs. Nazma Khatun etc. Page No. 17 of pages 52 recording of her statement, few questions were asked from her to ascertain her competency to depose and than her statement was recorded wherein she stated that she was 12 years old at the time of her deposition in the court she stated that about two years prior to the date of her deposition her chachi Nazma took her some where to an unknown village in a bus. She had taken her for the purpose of selling her. She was alone when she had taken her to the village. Accused Nazma sold her for Rs.5000/ to accused Attar Singh. After selling her, Nazma had left her in that village. The wife of accused Attar Singh told her that she would be married with one person, but she did not know the person. She further deposed that accused Nazma had visited the house of accused Attar Singh and she requested her that she wanted to go to her parent's home, but due to the objection of Attar Singh, she had not brought her back to her parent's house. She further deposed that after 24 days of her taking to the house of accused Attar Singh, police reached there and she was taken to some other place by wife of accused Attar Singh. On finding the opportunity to run away from the house of accused Attar Singh, she reached at Railway Station and there she met with the police and she was brought to Delhi at PS Darya Ganj. She denied that she was not taken to the hospital by the police for any medical examination.
State Vs. Nazma Khatun etc. Page No. 18 of pages 52 She claimed that she was sent to Nari Niketan by the police where she was medically examined. She was also produced before the Ld. MM where her statement Ex.PW6/A was recorded. She claimed that in her said statement, she had clearly stated that she was taken by accused Nazma and her husband Azad Singh.
During cross examination, she could not tell the date, month and year of recording of her statement u/Sec. 164 Cr.P.C. She denied the suggestion that she was not sold by Nazma to accused Attar Singh.
PW7 is Haseena, the other prosecutrix. She deposed that accused Azad Singh had met her in her jhuggi in the year 2003. He offered her to take his sister's house at Nand Nagri and had taken her there. Thereafter, he had asked her to stay with him at the house of his sister and also threatened her that if she refused he will kill her parents. Rehana was also taken alongwith her by accused. Thereafter, he had taken her and Rehana in a bus to Basia. Accused Nazma, wife of accused Azad had also accompanied them to Basia. Thereafter, she was sold by Mohd. Azad and Nazma to Chotu @ Rajesh for Rs.5000/. Thereafter, accused Mohd. Azad had forced her to sexual intercourse against her consent with accused Chotu failing which her parents would be killed. Thereafter, she was kept against her consent for 67 days with State Vs. Nazma Khatun etc. Page No. 19 of pages 52 Chotu at Basia. She further testified that accused Chotu had committed rape upon her for 67 days. Thereafter, Nagina, Shabbo along with police persons reached there and she along with accused persons i.e. Mohd. Azad, Nazma Khatun and Chotu was brought to Delhi. She was taken to the hospital where she was medically examined. She was also produced before the court where her statement mark7A was recorded. She further deposed that her clothes were not seized by the police and by the doctor.
During cross examination, she claimed that Rs.5,000/ were received by accused Mohd. Azad from Chotu in her presence. She was forced to sleep with Chotu in one separate room, who had committed rape upon her daily for 34 times for 6/7 days. She was married to Chotu only by putting sindoor by him in her "Maang". She could not tell the date of recording of her statement by the police or the date when she was sold by accused persons to Chotu or even the date of her medical examination.
PW12 Ct. Virender Singh in his testimony has deposed that on 01.08.2003 prosecutrix Rehana alongwith HC Vinod, Ct. Naresh came to the police post Yamuna Pushta, where her statement was recorded by ASI Raman Parsad and after preparing the Rukka he was sent to the State Vs. Nazma Khatun etc. Page No. 20 of pages 52 police station for registration of case and after registration of case he came back to police post and handed over the Rukka and copy of FIR to the IO. He also deposed that he alongwith Chowki Incharge, HC Vinod, Ct. Sanjeev Kumar and two ladies namely Nagma and Shaboo belonging to the STOP Institution had gone to PS Asroli, Distt. Muradabad from where local police personals also joined them and then they reached at the house of Chhotu S/o Ranbir Singh. On reaching there, prosecutrix Haseena was saved from the possession of Mohd. Azad and his wife Nazma Khatoon, who were found present there. Then, IO recorded the statement of Haseena. Accused Mohd. Azad and Nazma Khatoon were interrogated and arrested in the present case vide arrest memos Ex.PW11/E & Ex.PW11/F respectively. Personal Search Memo of both the accused were got conducted vide memos Ex.PW12A & Ex.PW12/B respectively. Then both the accused persons alongwith the prosecutrix were brought to JPN Hospital for their medical examination and six pullandas were received from the hospital and were seized vide memo Ex.PW12/C. Disclosure Statements of both the accused are Ex.PW12/D & Ex.PW12/E. The accused Attar Singh was arrested in the present case on the identification of accused Mohd. Azad vide arrest memo Ex.PW10/B and his personal search was conducted vide memo State Vs. Nazma Khatun etc. Page No. 21 of pages 52 Ex.PW10/E. He also deposed that on 15.11.2003, on receiving the warrant for the accused Chhotu @ Subhash S/o Ranbir Singh, he reached at PS Asmoli, Distt. Muradabad but on that day he was not present in his house and was arrested on the next day i.e. 16.11.2003 vide arrest memo Ex.PW12/F. His personal search was conducted vide Personal Search Memo Ex.PW12/G. PW12 correctly identified the accused Mohd. Azad, Nazma Khatoon, Attar Singh and Chotu, who were present in the court.
PW13 ASI Lallan Parsad in his testimony has deposed that on 01.08.2003 copy of DD No.57 dated 24.07.2003 P.P. Yamuna Pusta was handed over to him by HC Vinod and Ct. Naresh. One Rehana alongwith two ladies from NGO "STOP" were also produced before him and then he recorded the statement of Rehana Ex.PW1/A and he made his endorsement Ex.PW13/A on the said statement. He handed over the Rukka to Ct. Virender for being taken to police station for registration of FIR. Thereafter, he recorded the statements of Jahangir (father of Rehana) and of one lady namely Shibu of the NGO. After registration of FIR, Ct. Virender returned back to police post and handed over the rukka and copy of FIR to him. He also recorded the statement of HC Vinod. Then they went to the spot alongwith Jahangir, where at his State Vs. Nazma Khatun etc. Page No. 22 of pages 52 instance he prepared site plan Ex.PW13/B. Jahangir handed over Rehana to the NGO "STOP" and then he recorded the statement of one Nagina of NGO. On 02.08.2003, Rehana was produced before the court for getting recorded her statement u/Sec.164 Cr.P.C, same is Ex.PW13/C. Application for obtaining copy of statement is Ex.PW13/D. After her statement u/s 164 Cr.P.C, Rehana was produced before the Illaqa Magistrate and was sent to Nirmal Chhaya and on 04.08.2003 she was handed over to her father. He also deposed that on the directions of SHO, further investigation of the case was marked to SI Khushal Singh.
During cross examination he expressed his ignorance as to whether Nagina and Shabbo or other members of STOP had joined investigation of other cases of PS Kotwali or of any other Police Station. He also could not tell since when Rehana had been in custody of Nagina and Shabbo. He conceded that Rehana was kept in "STOP" office from 01.08.2003 till 02.08.2003, on which date she was produced in court. He also conceded that he had not recorded the statement of Incharge of STOP regarding Rehana being kept there overnight. He denied the suggestion that Rehana alongwith Shabbo and Nagina had never been produced before him on 01.08.2003 or that STOP was hand in glove State Vs. Nazma Khatun etc. Page No. 23 of pages 52 with PS Kotwali for showing cases having been solved by the police.
PW17 SI Rajinder Kumar is an official witness, who testified that on 01.10.2003 the further investigation of the case was entrusted to him and in compliance of order of Ld. MM, he went to the house of Munni to drop her there after getting her statement recorded u/s 164 Cr.P.C. On 15.10.2003 and 22.10.2003, he got the ossification test of Km. Aasma and Km. Rehana conducted at Hindu Rao Hospital and at DDU Hospital respectively and thereafter, he filed the charge sheet before the court. He also testified that on 17.11.2003 on NBW accused Rajesh @ Chotu was arrested by him in this case vide arrest memo Ex.PW12/F. His Personal Search Memo is Ex.PW12/G. He prepared the supplementary charge sheet against him and filed before the court.
PW18 Insp. Khushal Singh is one of the Investigation Officers of the case, who testified that on 06.08.2003 the investigation of this case was entrusted to him and he alongwith the staff proceeded for the investigation and on the way, complainant Ms. Rehana and public witness Smt. Shabbo joined the investigation. During investigation, they reached at Distt. Muradabad and tried to find out the whereabout of another missing girl Ms. Hasina and on receipt of secret information, raid was conducted in village Bahu Begumpur and on the pointing out State Vs. Nazma Khatun etc. Page No. 24 of pages 52 of informer, house of accused Chotu was raised and missing girl Hasina was recovered from there. At that time accused Chotu was not present in his house and coaccused Mohd. Azad and Nazma were apprehended from the same house. Accused Mohd. Azad and Nazma, who were present in the court, were correctly identified by the witness. Statement of Ms. Hasina was recorded and accused Mohd. Azad and Nazma were interrogated and arrested vide memos Ex.PW11/E & Ex.PW11/F. Their personal search was also conducted vide memos Ex.PW12/A and Ex.PW12/B. Disclosure statements of accused Mohd. Azad and Nazma Ex.PW12/D and Ex.PW12/E were also recorded. He also deposed that search for accused Chhotu was also made but he could not be traced out. He also recorded the statements of Smt. Shabbo and Ct. Virender. Thereafter, they along with the arrested persons and recovered girl returned to Delhi and thereafter, as per the directions of SHO, further investigation of the case was entrusted to SI Sudesh Nain. He also stated that on 08.08.2003, he again joined the investigation of this case. IO/SI Sudesh Nain brought accused Mohd. Azad to the police post and in his presence, he was interrogated. His disclosure statement Ex.PW10/A was recorded. Then he accompanied the IO, accused and other staff for the investigation of the case and reached at village Raji State Vs. Nazma Khatun etc. Page No. 25 of pages 52 Khera, Distt. Muradabad and on the pointing out and identification of accused Mohd. Azad, raid was conducted at the house of accused Attar Singh, who was present at the home and he was arrested vide memo Ex.PW10/B. His personal search was conducted vide memo Ex.PW10/D. His disclosure statement Ex.PW18/A was also recorded. Identification memo by accused Mohd, Azad of the house of accused Attar Singh is Ex.PW10/C. Thereafter they came back to Delhi and his statement was recorded by SI Sudesh Nain. Accused Attar Singh, who was present in the court, was correctly identified by the witness.
During cross examination he denied the suggestion that neither the local police was informed nor taken for assistance and that is why nobody from that police station has been made as a witness to the search and recovery proceedings. He also denied the suggestion that they have not gone to the house of Chotu and Attar Singh nor Hasina was recovered from the house of Chotu. He conceded that neighbours of Chotu or Attar Singh have not been cited as a witnesses, however, he denied the suggestion that no such effort was made to join public witnesses. He also denied the suggestion that none of the accused made any disclosure statement to the police and the thump impressions were obtained forcibly.
State Vs. Nazma Khatun etc. Page No. 26 of pages 52 PW22 SI Sudesh is also one of the Investigating Officers of the case, who testified that on 06.08.2003, he received the investigation of this case from SI Khushal Singh, who handed over him the case file and two accused namely Nazma and Azad and produced the victim Haseena before him and he got the Haseena medically examined at LNJP Hospital, where the doctor handed over him one sealed envelop containing vaginal smear slide and sample seal which he seized vide memo Ex.PW12/C. He also recorded the statement of witnesses. He further deposed that on 07.08.2003 he obtained police remand of accused Azad and on the same day he got the statement of Haseena recorded U/s 164 Cr.P.C. On interrogation, accused Azad made disclosure statement Ex.PW10/A and thereafter accused led the police party consisting of himself, SI Khushal, HC Vinod, Ct. Virender, Ct. Sanjay to Muradabad and firstly they reached at PS Said Nangli, Distt. Muradabad from where one constable was joined in the investigation and thereafter accused led them to the house of Attar Singh at Village Raji Khera, Distt. Muradabad, from there he was also arrested vide memo Ex.PW10/B. His Personal Search Memo Ex.PW10/D was prepared and disclosure statement Ex.PW18/A was also recorded. Accused Azad also informed that about 2025 days ago, he had sold State Vs. Nazma Khatun etc. Page No. 27 of pages 52 Munni and Aasma for Rs.5,000/ each. Pointing out memo Ex.PW10/C to this effect was also prepared. He also recorded the statement of witnesses and thereafter they returned back to Delhi. On 09.08.2003, accused Azad and Attar Singh were produced before the court and then sent to judicial custody. He also deposed that on 18.08.2003, he got conducted the ossification test of victim Haseena and collected the report, same is Ex.PW22/A. On 14.09.2003, when he was present in the police station, HC Dharam Pal, PS Nakasa, Distt. Muradabad alongwith victim Aasma came to the PS, where statements of both of them were got recorded by him and thereafter he also got conducted the medical examination of victim Aasma at LNJP Hospital. Then, on 15.09.2003 upon moving of an application by him Ex.PW22/B, statement of victim Aasma U/s 164 Cr.P.C Ex.PW6/A was recorded and a copy of the same was provided to him on an application Ex.PW19/B. He also deposed that on 18.09.2003, NGO workers Nagina and Shabbo produced the victim Munni at PS before him, where he recorded their statements and that of Munni. Munni produced the photocopy of marriage certificate before him and the same was seized vide memo Ex.PW4/D1. Thereafter, her medical examination was got conducted by him at LNJP Hospital and then she was produced before the court, from State Vs. Nazma Khatun etc. Page No. 28 of pages 52 where she was sent to Nari Niketan. On 19.09.2003, ossification test of Munni was got conducted by him and he collected the report which is Ex.PW9/A. Thereafter, statement of Munni was also got recorded u/s 164 Cr. P. C, which is Ex.PW4/A and on 23.09.2003 he handed over the case file to MHC(M) and he proceeded on medical rest.
During cross examination, he could not tell the time when Haseena was medically examined but he stated that it was in the evening. He conceded that he did not record any statement of Haseena. He also could not tell the exact time when accused Azad was interrogated. He confirmed that no public person was joined at the time of his interrogation. He also stated that statement of Munni was recorded in the police station. He denied the suggestion of having not conducted the investigation fairly and properly. He also denied the suggestion that no disclosure statement was made by the accused Azad Singh or that accused Azad did not lead the police party to Muradabad nor pointed out the house of Attar Singh.
8. After conclusion of prosecution evidence, statements of the accused persons u/s 313 Cr. P. C were recorded separately.
In their respective statements, Mohd. Azad and Nazma Khatoon have vehemently denied the story of the prosecution and the State Vs. Nazma Khatun etc. Page No. 29 of pages 52 evidence brought up by the prosecution and claimed that they have been roped in the false case and the witnesses are tutored, interested and false. They have however, produced no evidence in support of their said claim.
The accused Rajesh also denied the case of the prosecution and took the similar defence of false implication in this case by the police. He claimed that the witnesses are interested witnesses. He specifically claimed that he had married to Haseena in 2003 through Azad and Nazma Khatoon and at the time of the marriage, Haseena was introduced as the 19 years old daughter of coaccused Azad and Nazma Khatoon. He has, however, produced no evidence in support of his defence.
Accused Attar Singh has also claimed innocence on the plea of false implication by the police. He particularly stated that all the the prosecution witnesses are interested and police witnesses. However, he too opted not to lead any evidence in his defence.
9. I have carefully heard the rival submissions of both the sides. I have also perused the entire material placed on record.
10. In the instant case the accused Nazma and Azad have been charged with the offences U/s 363/366A/372/34 IPC whereas the accused State Vs. Nazma Khatun etc. Page No. 30 of pages 52 Rajesh and Attar Singh have been charged u/s 373/376 IPC and u/s 373 IPC respectively.
To constitute an offence u/s 363 IPC:
(i).The person kidnapped must be a minor or a person of unsound mind;
(ii).there must be taking or enticing of a minor or a person of unsound mind;
(iii).the taking or enticing must be from the keeping of a lawful guardians of a minor or person of unsound mind; and
(iv).the taking or enticing must be without the consent of such guardian.
The minor means under 16 years in the case of a male or under 18 years in the case of female. In the case of minor girls the section is attracted irrespective of the question whether she is married or unmarried. The offence of kidnapping consists solely of taking a minor from the keeping of her lawful guardian and no intention need be established.
The word "take" means to cause to go, to escort, or to get into possession. The taking need not be by force, actual or constructive.
The expression "enticing" in the section, involves that while the person kidnapped might have left the keeping of the lawful guardian State Vs. Nazma Khatun etc. Page No. 31 of pages 52 willingly still the state of mind that brought about the willingness must have been induced or brought about in some way by the accused. It involves an idea of inducement by exciting hope or desire in the other.
A minor is not competent to give her consent to her taking because it is the consent of the guardian which is material. However, a minor is certainly competent to leave the protection of her guardian of her own accord.
The aim of the provisions of Sec. 366A, Penal Code, is to prevent immorality and the provisions are framed more with the desire of safeguarding the public interest of morality than the chastity of one particular woman.
There are three principal ingredients of the offence contemplated by Sec. 366A:
(a). that a minor girl below the age of 18 years is induced by the accused;
(b). that she is induced to go from any place or to do any act, and
(c). that she is so induced with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person.
This section makes it an offence in the case of a minor girl if State Vs. Nazma Khatun etc. Page No. 32 of pages 52 she is induced by a person to go from any place with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person.
In order to attract this section it must be proved that the girl induced was below eighteen years of age. The fact that the accused bonafidely believed or had reasonable grounds for believing that the girl was over the prescribed age is no defence to a charge under this section, nor is the fact that the accused did not know that the girl was married, a valid defence.
In case of offence under sec.366A, Penal Code, the question of age is the crucial one and strict and exact evidence of age is essential.
It is also essential to prove that the accused intended that the girl would be forced or seduced to illicit intercourse with someone other than himself; or that the accused knew that it was likely that she would be so forced or seduced. The existence of this specific intention or knowledge is a most important element in the constitution of an offence under Sec.366A. Merely giving shelter to a girl or carrying her from place to place without knowing that she was married and without any intention or knowledge that she was likely to be forced or seduced to illicit State Vs. Nazma Khatun etc. Page No. 33 of pages 52 intercourse does not amount to an offence under Sec.366A. In AIR 1962 SC 1908 their Lordships observed that, "Seduction implies surrender of her body by a woman who is otherwise reluctant or unwilling to submit herself to illicit intercourse in consequence of persuasion, flattery, blandishment or importunity whether such surrender is for the first time or is preceded by similar surrender on earlier occasion."
The expression "illicit intercourse" in sec.366A means sexual intercourse between a man and a woman who are not husband and wife.
Section 372 and 373 relate to the same subject matter and should be read together. They are correlative of each other, being aimed against what may be broadly described as trafficking in girls under the age of eighteen. On this view the words "otherwise obtains possession"
must be construed ejusdem generis with "buying" and "hiring". The wording of the two sections is extremely close. The word "sells" in sec.372 corresponds with "buys" in sec.373. Similarly "lets to hire"
corresponds with "hires".
The essential ingredients of the section are:
(1). Selling, or letting to hire or otherwise disposal of a State Vs. Nazma Khatun etc. Page No. 34 of pages 52 person under the age of eighteen years; (2). Such selling or letting to hire, or other disposal was with the intent, or knowledge that it was likely that the person would at any age be employed or used for
(a). the purpose of prostitution, or
(b). illicit intercourse with any person, or
(c). any unlawful and immoral purpose.
An offence under this section, which is aimed at disposing of a girl necessarily involves two parties to the transaction.
The word "disposal" in sec.372 of the Penal Code necessarily connotes some control by the person disposing over the minor disposed of. The mere direction of the minor or recommendation to her to go to a brothel does not constitute a "disposal" of the minor within the meaning of sec.372 of the Penal Code.
The idea underlying prostitution is that a woman should surrender for a monetary consideration to some one who is not in law entitled to have sexual intercourse with her.
In order to attract this section, the purpose of employment or use of a minor girl must be unlawful as well as immoral. The word 'unlawful' is to be construed ejusdem generis with the word "immoral".
The offence under this section consists in the intentional or conscious exposure of the minor to the danger of degradation. The State Vs. Nazma Khatun etc. Page No. 35 of pages 52 requisite intention or knowledge must exist at the time of the disposal. The intention or knowledge may be gathered from the facts and circumstances of the case and from the consequences flowing from the Act.
Section 373 IPC deals with the person who "buys, hires or otherwise obtains possession of" a person below eighteen years of age.
The essential ingredients of the section are: (1). Buying, hiring or otherwise obtaining possession of a person under the age of eighteen years (2). Such buying, hiring or otherwise obtaining possession must be with the intent or knowledge of likelihood that such person will at any age be employed or used:
(a). for the purpose of prostitution, or
(b). illicit intercourse, or
(c). any unlawful and immoral purpose.
The person under the age of eighteen years may be married or unmarried and need not be in the keeping of a lawful guardian.
The word "buys" is used in the same correlative sense as the term "sells" in sec.372. The term "hires" does not refer to a casual connection had no payment.
Under section 372 & 373 IPC, there must be making over of State Vs. Nazma Khatun etc. Page No. 36 of pages 52 possession of the minor girl either by sale or by hire or by some similar arrangement in order that a case may come within the mischief of the law.
The requisite intention or knowledge must exist at the time of buying, hiring or obtaining possession of the minor. As the section speaks of employment or use "at any age", therefore, it is not necessary that the intention should be to use the minor girl immediately for the purposes of prostitution.
Proof of intention or knowledge, such as are mentioned in Sec.373, of the Penal Code must be almost entirely a matter of inference from circumstances.
Section 375 defines the offence of rape. Section 376 prescribes the punishment for the said offence.
Section 375 requires two essentials:
(1).Sexual intercourse with a woman by a man (2).Such sexual intercourse was under circumstances falling under any of the five clauses in the section.
The depth of penetration is immaterial as far as the offence under Sec. 376 is concerned.
Partial penetration of the penis within the labia majora of the State Vs. Nazma Khatun etc. Page No. 37 of pages 52 vulva or pudendum with or without emission of semen or even an attempt at penetration is quite sufficient for the purposes of the law. Thus, to constitute the offence the evidence of the lady doctor that there was rupture of the hymen and that there was injury inside the vagina, is sufficient.
To have sexual intercourse with a woman against her will or without her consent is rape.
Sexual intercourse with a woman who is asleep would be against her will.
Under Sec.375, the law requires that the victim must be under 16 years of age or that sexual intercourse was made against her will and consent. Where the victim is below 16 years of age, the question of consent does not arise. Consent on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent. Submission of her body under the influence of fear or terror is no consent.
There is difference between submission and consent. Every consent involves a submission but the converse does not follow and a State Vs. Nazma Khatun etc. Page No. 38 of pages 52 mere act of submission does not involve consent.
A mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be "consent" as understood in law.
Consent should have been obtained before the act. That the victim consented after the act is no defence.
Sexual intercourse with a woman under the influence of drink cannot be said to be with consent.
A consent obtained under fear of death or of hurt is no consent at all.
A consent obtained by fraud would be a consent under a misconception of fact and as such would not amount to 'consent'.
The consent must be free, real and previous. It must not be tainted with fear or fraud and must not have been obtained under fear of death or hurt. How is it to be proved?
In Sultan Vs. Emperor 1972 (Cri. LJ) 270:1971 All WR (HC) 565, it was observed:
"The fact that the girl was virgo intacta upto the date of occurrence is very strong proof to State Vs. Nazma Khatun etc. Page No. 39 of pages 52 the contrary."
Consent, or the absence of it, can be presumed from the attendant circumstances of each case.
Mere presence of semen on the loin cloth of the victim cannot lead to the presumption of consent. Where a woman who has been kidnapped and raped had raised an alarm when she was being kidnapped and had raised an alarm again after she was dropped back in her village after being raped and had told a story of rape to a witness immediately on her being released by the miscreants go to show that she could never have been a consenting party.
Sexual intercourse with a woman under the age of 16 years is rape and in such a case consent is immaterial and does not absolve the accused from his guilt.
In rape cases it is only when consent is the defence pleaded that the question would arise at to whether the girl was of an age to give consent in law. The question of the age of the prosecutrix should be examined more closely where the medical evidence shows that she was used to sexual intercourse and there was old rupture of the hymen.
The only conclusive piece of evidence of the girl's age may be the birth certificate.
State Vs. Nazma Khatun etc. Page No. 40 of pages 52 It is true that a doctor is in a better position to for an opinion about the age of a person than a layman, but the statement of a doctor is no more than an opinion. When from his statement it does not appear that he brought any scientific knowledge to bear upon his opinion, where the doctor has relied entirely on certain physical peculiarities, such as teeth, etc., his statement is not a legal proof but a mere opinion.
In books on Medical Jurisprudence a distinction has been made between vulval penetration and vaginal penetration and it is remarked that vulval penetration with or without violence is an much rape as vaginal penetration. It is not necessary that the hymen be ruptured in every case. "To constitute penetration it must be proved that some part of the virile member of the accused was withing the labia of the pudendum of the woman, no matter how little."
Emission of semen is not by itself a conclusive proof of penetration.
Evidence of non rupture of hymen is not conclusive of the fact that there was no sexual intercourse. The presence of spermatozoa indicating semen found in the woman's genitals or on her clothes is by no means final in the case of a married woman. Similarly, semen stain on the langot of a young man can exist because of a variety of reasons State Vs. Nazma Khatun etc. Page No. 41 of pages 52 and would not necessarily connect him with the offence of rape.
The absence of the smegma is not necessarily a conclusive proof of the fact of recent cohabitation or sexual intercourse, but it can also lead to inference that the parts had been washed and kept clean by the persons. So, the absence of smegma on the private parts of the accused is not sufficient to raise a inference of guilt.
In rape cases if the gland of the male organ is covered by uniform layer of smegma it negatives the possibility of recent complete penetration. If the accused is not circumcised, the existence of smegma round the corona gland is proof against penetration, since it is rubbed off during the act of sexual intercourse. The smegma accumulates if no bath is taken for twenty four hours. In rape cases, therefore, the prosecution must get the male organ of the accused examined.
It is only when the glans penis is covered by a uniform layer of smegma that the possibility of recent complete penetration is negatived. The presence of a small quantity of smegma is not sufficient to negative such possibility since a negligible amount of smegma may be present even if a person has intercourse.
11. It is the case of the prosecution herein that the accused Nazma and Mohd. Azad had after alluring taken away the minor girls Rehana State Vs. Nazma Khatun etc. Page No. 42 of pages 52 and Haseena (the prosecutrixs) to Basia village where they sold them to other persons. Coaccused Rajesh had purchased Haseena for the sum of Rs.7,000/ and also committed rape upon her for 2/3 times in a day upto 6/7 days. An another minor girl namely Asma was also got recovered during the raids by the police party who was sold by the accused Nazma and Mohd. Azad to co accused Attar Singh for Rs.5,000/.
Per contra, according to the accused persons, they were falsely implicated in this case and the prosecution has not been able to prove its case against them and as such they deserve an order of acquittal in their favour.
12. To bring home the guilt of the accused Nazma and Mohd. Azad, the prosecution was required to establish (i) that they had allured the prosecutrix(s) (ii) the prosecutrix(s) were minor at the relevant time (iii) the accused persons had taken them away from the lawful guardianship of their parents (iv) they had procured the minor girls with intend that they would be forced or seduced to illicit intercourse with another person
(v) they had sold the girls with the intend or knowledge that it was likely that the person would at any stage would employee or use them for the purpose of prostitution or illicit intercourse with any person or any unlawful or immoral purpose, and in my view the prosecution has State Vs. Nazma Khatun etc. Page No. 43 of pages 52 successfully achieved its mission.
PW1, the prosecutrix Rehana is the star witness, who while corroborating with the story of prosecution has testified that accused Nazma after alluring had taken her to her house, where accused Mohd. Azad was also found present along with the other prosecutrix Haseena. From there, they both were taken to Basia village where she was sold by them to another person. She has also specifically stated that Haseena was also sold by the said accused persons for Rs.7,000/ to accused Chottu @ Rajesh. This fact has also been corroborated by PW7 Haseena.
PW7 Haseena while corroborating the version of PW1, specifically stated that the accused Mohd. Azad forcibly took her with them on the threats that if she does not accompany them her parents would be killed. She was taken alongwith Rehana to Basia village, where the accused persons Mohd. Azad and Nazma sold her to accused Chhotu (Rajesh) in Rs.7,000/. Accused Rajesh raped her 2/3 times a day upto 6/7 days against her will and without her consent while threatening her to kill her parents.
PW6, a minor girl Asma aged 12 years, has also corroborated them. She has testified that Nazma is her chachi and she took her to State Vs. Nazma Khatun etc. Page No. 44 of pages 52 village Basia and sold her for Rs.5,000/ to the accused Attar Singh and wife of accused Attar Singh told her that they were getting her married to some other person. She further stated that when Nazma visited the house of Attar Singh, she requested her to sent her back to her parents to which the accused Nazma turned down while saying that Attar Singh had already purchased and given Rs.5,000/ for her.
PW2 & PW3 Nagina and Saboo, the social workers from STOP organization has also supported the story of prosecution. They have stated that the father of victim Rehana had approached the organization and requested to trace their daughter. They alongwith the father of Rehana and police officials went to village Basia Distt. Muradabad where Rehana was found and recovered from the house of village Pradhan. The accused Mohd.Azad, Nzama and Chottu were also arrested and later on proseuctrix Haseena was also rescued from the house of accused Chhotu. Both these witnesses with stood the cross examination without any contradiction. In their respective statements recorded u/s 164 Cr.P.C, the prosecutrix(s) had supported their statements given U/s 161 Cr.P.C. They had also withstood their cross examination without any contradiction and nothing material had come up to disbelieve their testimony in their cross examination. They had State Vs. Nazma Khatun etc. Page No. 45 of pages 52 clearly named all the four accused persons and the roles played by each of them. The MLC of the Haseena shows that hymen was torn and there was alleged history of rape which corroborates with the testimony of the said witness. The ossification test reports shows that the prosecutrix Rehana and Haseena were 17 years of age, whereas Asma was of 10 years of age and the accused persons have been failed to bring any evidence in contrary and thus it is established that the prosecutrix(s) were minor. These girls, in their respective testimonies, have also specifically deposed that they have been sold and were sexually assaulted without their consent. Thus it is established that the accused Nazma and Mohd. Azad had procured the minor girls Rehana, Asma and Haseena from the lawful guardianship of their parents with the intention to force them to illicit intercourse and they were also sold for the said purpose. The said fact has been corroborated by the medical evidence. Further, there is no motive to falsely implicate the accused persons by the victim or by their parents as in the tradition bound non permissive society of India the parents would be more conscious of the danger of being ostracized by the society or being looked down by the society and would want to avoid publicity on account of the fear of social stigma on the family name and family honour. Thus, accused Nazma State Vs. Nazma Khatun etc. Page No. 46 of pages 52 and Mohd. Azad are liable to hold guilty for the offences punishable U/Sec. 366A/372/34 IPC. They are held guilty and accordingly convicted.
13. As regards to accused Rajesh Kumar Tyagi @ Chotu, the prosecution is required to establish that he had purchased/procured Haseena (a minor girl) from coaccused Nazma and Mohd. Azad for the sum of Rs.7,000/ and also committed rape upon her.
PW7 Haseena while corroborating the story of prosecution has specifically stated that the accused Mohd. Azad forcibly took her with them on the threats that if she does not accompany them her parents would be killed. She was taken alongwith Rehana to Basia village, where the accused persons Mohd. Azad and Nazma sold her to accused Chhotu (Rajesh) in Rs.7,000/. Accused Rajesh raped her 2/3 times a day upto 6/7 days against her will and without her consent while threatening her to kill her parents.
PW1, the prosecutrix Rehana also confirmed that accused Nazma after alluring had taken her to her house, where accused Mohd. Azad was also found present along with the other prosecutrix Haseena. From there, they both were taken to Basia village where she was sold by them to another person. She has also specifically stated that State Vs. Nazma Khatun etc. Page No. 47 of pages 52 Haseena was also sold by the said accused persons for Rs.7,000/ to accused Chottu @ Rajesh.
PW2 & PW3 Nagina and Saboo, the social workers from STOP organization has also supported the story of prosecution. They alongwith the father of Rehana and police officials went to village Basia Distt. Muradabad where Rehana was found and recovered from the house of village Pradhan. The accused Mohd. Azad, Nzama and Chottu were also arrested and later on proseuctrix Haseena was also rescued from the house of accused Chhotu. Both these witnesses with stood the cross examination without any contradiction. In their respective statements recorded u/s 164 Cr.P.C, the prosecutrix(s) had supported their statements given U/s 161 Cr.P.C. They had also withstood their cross examination without any contradiction and nothing material had come up to disregard their testimony in their cross examination. They had clearly named the accused Rajesh alongwith other accused persons and the role played by him. The MLC of the Haseena confirms that the hymen was torn and there was alleged history of rape which further corroborates with the testimony of the said witness. The ossification test report shows that the prosecutrix Haseena was 17 years of age, hence a minor, and the accused was failed to bring any evidence in contrary.
State Vs. Nazma Khatun etc. Page No. 48 of pages 52 Moreover, the accused has also been failed to establish that the sexual relations established by him with the girl Haseena was consented. Whereas, the girl in her testimony has specifically deposed that she had been sold and was sexually assaulted by the accused without her consent. Thus it is established that the accused Rajesh Kumar Tyagi @ Chotu had procured/purchased the minor girl Haseena from the co accused Nazma and Mohd. Azad for the amount of Rs.7,000/ and thereafter, he had committed rape upon her without her consent. The factum of rape has been corroborated by the medical evidence. Moreover, there is no motive on the part of the victim or her parent to falsely implicate the accused as in the tradition bound nonpermissive society of India the parents would be more conscious of the danger of being ostracized by the society or being looked down by the society and would want to avoid publicity on account of the fear of social stigma on the family name and family honour. Thus, accused Rajesh Kumar Tyagi @ Chotu is liable to hold guilty for the offences punishable U/Sec. 373/376 IPC. He is held guilty and accordingly convicted.
14. Now, let us see, how far the prosecution has remained successful in establishing its case against the accused Attar Singh, against whom the allegations are that an another minor girl namely State Vs. Nazma Khatun etc. Page No. 49 of pages 52 Asma was also got recovered during the raids by the police party who was sold by the accused Nazma and Mohd. Azad to him i.e. accused Attar Singh for Rs.5,000/. Thus, here the prosecution is required to establish that the accused Attar Singh had procured or purchased the minor girl Asma from coaccused Nazma and Mohd. Azad for an amount of Rs.5,000/ with intend or knowledge that it was likely that she would at any stage be employed or used for the purpose of prostitution, or illicit intercourse with any person or any unlawful and immoral purpose.
PW6, Asma, a minor girl, has testified that her chachi Nazma took her to some where in an unknown village in a bus and she had taken her for the purpose of selling her. She was alone when she had taken her to the village. Accused Nazma sold her for Rs.5000/ to accused Attar Singh. After selling her, Nazma had left her in that village. The wife of accused Attar Singh told her that she would be married with one person, but she did not know the person. She further deposed that accused Nazma had visited the house of accused Attar Singh and she requested her that she wanted to go to her parent's home, but due to the objection of Attar Singh, she had not brought her back to her parent's house. She further deposed that after 24 days of State Vs. Nazma Khatun etc. Page No. 50 of pages 52 her taking to the house of accused Attar Singh, police reached there and she was taken to some other place by wife of accused Attar Singh. On finding the opportunity to run away from the house of accused Attar Singh, she reached at Railway Station and there she met with the police and she was brought to Delhi at PS Darya Ganj. The said witness was although cross examined by Ld. Defence counsel but she with stood the cross examination without any contradiction.
PW18 Insp. Khushal Singh has proved the factum of arrest of the accused Attar Singh and he has duly identified him before the court.
Now it is to be seen whether the testimony of PW6 can be relied upon and on the basis of the same, the accused can be held guilty. In my considered view, the testimony of PW6 is fully trustworthy as there is no motive on her part or their parent to falsely implicate the accused as in the tradition bound nonpermissive society of India the parents would be more conscious of the danger of being ostracized by the society or being looked down by the society and would want to avoid publicity on account of the fear of social stigma on the family name and family honour. The witness has specifically named the accused as the person, who had illegally purchased/procured her from the accused Nazma and Mohd. Azad for unlawful purpose and even her request to State Vs. Nazma Khatun etc. Page No. 51 of pages 52 release her or allow her to go back to her parents was declined by the coaccused Nazma and over looked by the wife of accused Attar Singh by saying that she would be got married with some one. Thus, accused Attar Singh is also liable to hold guilty for the offence punishable U/Sec. 373 IPC. He is held guilty and accordingly convicted.
In the light of aforesaid, all the four accused persons are held guilty and convicted accordingly. Now, they be taken into judicial custody and be heard on the point of quantum of sentence on 07.07.2009.
(Announced in the open (RAKESH KUMAR) court today on 03.07.2009) ASJ04 (NORTH)/DELHI State Vs. Nazma Khatun etc. Page No. 52 of pages 52