Delhi District Court
State vs . Dilshad, on 26 August, 2016
IN THE COURT OF SH. SUNIL K. AGGARWAL, ADDL. SESSIONS JUDGE 04,
(NORTHWEST) ROHINI COURTS, DELHI
IN THE MATTER OF :
Unique ID No. : 02404R0370182012
Sessions Case No. : 25/01
FIR No. : 173/12
Under Sections : 363/366 IPC
Police Station : Swaroop Nagar
STATE Vs. Dilshad,
S/o Sh. Jamil,
R/o Village Kothra, PS Kemri,
District Rampur, Uttar Pradesh.
Complainant:
Sh. Vinay Kumar,
S/o Sh. Nand Lal,
R/o House No. A315,
Gali No. 9, Kadi Vihar,
Village Kadipur, Delhi.
Date of receipt of files in Sessions Court : 31.01.2013
Date of arguments : 26.08.2016
Date of judgment : 26.08.2016
J U D G M E N T:
1.The complainant calling from mobile no. 8750197708 had informed the Police Control Room on 02.09.2012 at about 04:30 pm about missing of his daughter Neeraj Kumari (actually Nname withheld being juvenile), aged about 17 years from House No. 315, Gali No. 9, KBlock, Kadi Vihar, Swaroop Nagar, Delhi. The Control Room passed on this information to Police Station Swaroop Nagar where it was taken down in Daily Diary at No. 35B and assigned to HC Jetha Ram for taking appropriate action. HC Jetha Ram went to the place of complainant along with Ct. Naresh where SC No. 17/1/14 FIR No. 173/12 P.S. Swaroop Nagar State Vs. Dilshad. Page No. 1 of 14 Vinay Kumar got recorded his statement to the effect that his 5' 6'' tall daughter N, aged about 17 years 7 months had left house on 01.09.2012 at about 10:00 am for Keshavpuram Library for fetching some books but she has not returned. After disclosing the colour and cloths worn by her, it was informed that her mobile phone no. 9718419259 is reporting 'switched off'. He had suspected that some unknown person has enticed his daughter and took her away. On the basis of statement of complainant, FIR under Sec. 363 Indian Penal Code was registered and assigned to SI Sandeep for investigation. SI Sandeep had intimated the concerned branches of Police about the kidnapped girl N with her photographs. During investigation he was informed by Mohd. Laiq that his nephew Dilshad has taken one girl with him and is residing in Village Kothra, PS Kamri, District Rampur, Uttar Pradesh. The investigating officer along with other Police staff and the complainant raided the outstation residential house of Dilshad in the morning of 16.09.2012 and recovered N from there. The accused Dilshad was also there. He was apprehended and arrested on being brought to Delhi. The victim N was got medically examined during which she had denied that the accused had made any physical relations with her. She had also declined to get herself internally examined. After the victim and her parents were counselled by the Inspector & Welfare Officer of Special Juvenile Police Unit of NorthWest District, Delhi, the statement of N was got recorded under Sec. 164 Code of Criminal Procedure and she was given in the custody of her parents. As per her school documents, the victim was of about 16 years 3 months on the date of commission of offence. During the course of investigation, the provisions of Sec. 366 IPC were added in this case and on conclusion thereof chargesheet was filed in SC No. 17/1/14 FIR No. 173/12 P.S. Swaroop Nagar State Vs. Dilshad. Page No. 2 of 14 concerned magisterial court on 14.12.2012.
2. After taking cognizance and on committal of the case, it was assigned to the Sessions Court on 31.01.2013. The charge under Sec. 366A IPC was framed against the accused on 26.02.2013 to which he had pleaded not guilty and claimed trial. The prosecution has examined total 20 witnesses in an endeavour to substantiate the charges against the accused. For the sake of convenience and to better appreciate the role of each witness they are segregated under various heads as follows.
3. Formal Witnesses: 3 (a) PW 1 Lady Ct. Suman Lata had taken victim N to Babu Jagjeevan Ram Memorial Hospital, Jahangir Puri on 16.09.2012 for her medical examination where after she was brought to the court and from there sent to Nari Niketan. On the same day accused Dilshad was brought to Rohini Courts by Ct. Sunil. Victim N was brought from Nari Niketan to Police Station Maurya Enclave on 17.09.2012 for counselling and from there brought to Rohini Courts for getting her statement recorded by learned Metropolitan Magistrate post where to her custody was given to the complainant vide memo Ex. PW 1/A. 3(b). PW 3 HC Bhagwan Singh had recorded the FIR Ex. PW 3/A on the basis of Ruqqa received from HC Jetha Ram on which endorsement Ex. PW 3/B was made. The supporting statutory certificate under Sec. 65B of The Evidence Act is Ex. PW 3/C. SC No. 17/1/14 FIR No. 173/12 P.S. Swaroop Nagar State Vs. Dilshad. Page No. 3 of 14 3(c). PW 7 Insp. Rajni Saroha, had counseled the victim N on being brought by the Investigating Officer in her office in PS Maurya Enclave, Delhi and had prepared report Ex. PW 7/A. 3(d). PW 8 Ms. Priyanka, Welfare Officer, had also counseled the victim as well as her parents on 17.09.2012 on being brought to the office of Special Juvenile Police Unit in PS Maurya Enclave and had delivered reports Ex. PW 8/A and Ex. PW 8/B respectively to the IO.
3(e) PW 11 Smt. Bimlesh, mother of the victim, stated that her daughter aged 17 years 7 months had left her house on 01.09.2012 with an unknown boy without disclosing anything to the family. The custody of N was taken by her and her husband on 17.09.2012 after her counseling.
3(f) PW 12 Laiq Ahmad, uncle of the accused stated that the IO had contacted him on 16.09.2012 and asked about the mobile number 8745902198 which belonged to his nephew Dilshad. On being disclosed of the facts of the case, he had verified about Dilshad from his native place and told the IO that he has gone there with one girl from Delhi.
3(g) PW 16 W/Ct. Sandeep had taken down the information received from Control Room through Wireless Operator and recorded DD Ex. PW 16/A. SC No. 17/1/14 FIR No. 173/12 P.S. Swaroop Nagar State Vs. Dilshad. Page No. 4 of 14 3(h) PW 17 SI Jagdeep, had prepared the chargesheet on finding that investigation is already complete on receipt of file on 20.10.2012, and filed it in the court.
3(I) PW 19 HC Jetha Ram, had recorded the complaint of PCR Caller and got FIR registered at the Police Station through Ct. Naresh after endorsing Ruqqa Ex. PW 19/A.
4. Witness regarding the age of victim: 4(a) PW 13 Sh. Ajay Kumar, Manager, Happy Child School, Burari, Delhi proved the admission form of victim N submitted by her father Vinay Kumar in 1999 as Ex. PW 13/A and photocopy of Admission Register reflecting her date of birth to be 07.06.1996 as Ex. PW 13/B.
5. Medical Evidence: 5(a) PW 15 Dr. Seema of Babu Jagjeevan Ram Memorial Hospital proved the MLC of victim N as Ex. PW 15/A which was prepared by Dr. Pankaj, Junior Resident under her supervision. The prosecutrix was sent for Gynecological examination which she had refused in respect whereof an endorsement was made by Dr. Mamta. She was able to identify the handwriting and signatures of both the doctors who had left the services of hospital by then without leaving their SC No. 17/1/14 FIR No. 173/12 P.S. Swaroop Nagar State Vs. Dilshad. Page No. 5 of 14 particulars.
6. Material Witnesses: 6(a) PW 2 Vinay Kumar, has proved the complaint Ex. PW 2/A, birth certificate of his daughter/victim N as Ex. PW 2/B and her Matriculation certificate Ex. PW 2/C. He stated that his daughter was recovered from the house of accused Dilshad in District Rampur on 16.09.2012 on being raided by the Police. The court had given him the custody of his daughter on 17.09.2012.
6(b) PW 5 Victim N, stated that she loved the accused and he had come to meet her at INA Metro Station on 01.09.2012. They remained in the adjacent park till 7:00 pm and from there went to a house in Gurgaon. After staying there from 23 days, she along with the accused went to his native village Kothra in District Rampur, Uttar Pradesh and remained there for about a week. They had applied for court marriage but in the meanwhile her father reached there with Police and she was brought to Delhi on 16.09.2012. She was medically examined but had declined to get examined internally. Her statement Ex. PW 5/A was recorded in the court. She claimed to be of 17 years and 7 months on the date of incident but asserted that the accused had not taken her by force or to seduce her for illicit intercourse. 6(c) PW 18 Sh. Bhupinder Singh, Metropolitan Magistrate, was working as Link Magistrate to the concerned court on 16.09.2012 when an application Ex. PW 18/A was marked to him for recording statement under Sec. 164 Cr.PC of SC No. 17/1/14 FIR No. 173/12 P.S. Swaroop Nagar State Vs. Dilshad. Page No. 6 of 14 prosecutrix N. It was recorded by him the next day and proceedings in this behalf are Ex. PW 5/A.
7. Investigational Witnesses: 7(a) PW 4 Ct. Baljeet Singh, PW 6 Ct. Sunil Kumar & PW 14 W/Ct. Urmila had accompanied the IO/SI Sandeep and the complainant to the house of accused Dilshad in District Rampur, UP on the intervening night of 15/16.09.2012. They had also taken two Police officials from PS Kamri on the way and on conducting raid, recovered victim N from the house vide memo Ex. PW 4/A. The accused was also apprehended and both were brought to Delhi where latter was arrested vide memo Ex. PW 6/A and his personal search taken vide memo Ex. PW 6/B. He had made disclosure statement Ex. PW 6/C. The accused and victim both were got medically examined at the hospital on 16.09.2012.
7(b) PW 9 Ct. Guru Dutt Sharma & PW 10 Ct. Arun Kumar of PS Kamri, Distt. Rampur, UP had joined investigation of this case with IO on 16.09.2012 and had gone to the house of accused Dilshad in village Kothra from where the victim was recovered. She was duly identified by her father. The prosecutrix and accused were taken away by the IO and the persons including Police Staff accompanying him and they had returned to their local Police Station.
7(c) PW 20 IO/SI Sandeep Kumar, has narrated the course of investigation and the documents prepared in the process which have already been proved by SC No. 17/1/14 FIR No. 173/12 P.S. Swaroop Nagar State Vs. Dilshad. Page No. 7 of 14 witnesses examined before him in court. He claimed to have obtained the call details record of the mobile of victim and finding that she was in regular touch with accused on his mobile the Call Details Record of latter were retrieved to reveal that he was also having regular talks with Liaq Ahmad. On contacting Liaq Ahmad, the case was worked out. The evidence of prosecution was closed on 07.01.2016.
8. In his statement recorded under Sec. 313 Cr.PC, accused either denied knowledge of the facts emerged in evidence against him or their veracity. He claimed to have been falsely implicated in this case and had never made a statement to the Police. He termed the prosecution witnesses to be false and interested and declined to lead evidence in defence.
9. I have heard Sh. Praveen Kumar Samadhiya, Learned Addl. Public Prosecutor for the State, Sh. Deepak Sharma, Advocate, Learned Defence counsel and carefully perused the file. While Sh. Samadhiya contended that the victim was of about 16 years 3 months on the date of committal of offence per the documents Ex. PW 13/A and Ex. PW 13/B of school first attended by her, she was incapable of giving consent nor had reached the age of exercising discretion. Her version as PW 5 of having not been enticed by the accused therefore is immaterial. There is no evidence of accused having obtained consent of the parents of N for taking her out of their custody or even informed them subsequently. He had taken a juvenile girl child with her at a faraway place and coerced her to sign an application for solemnizing marriage manifest his intention to seduce her to illicit intercourse. According to him, ignoring minor discrepancies which do SC No. 17/1/14 FIR No. 173/12 P.S. Swaroop Nagar State Vs. Dilshad. Page No. 8 of 14 not prejudice the defence of accused, the prosecution has been able to establish the charge against the accused.
10. Ld. Defence counsel on the other hand argued that there is absolutely no evidence of the so called victim N having been induced by the accused to go out of the custody of her parents or that she was seduced to have illicit intercourse with anyone during their 15 days jaunt. According to him not only N but also her parents PW 2 and PW 11 have specified her age to be 17 years 7 months on the date of alleged commission of offence in consonance with her birth and matriculation certificates Ex. PW 2/B & Ex. PW 2/C. The victim therefore was about to clinch the age of majority in a few months and had attained sufficient maturity as to decide for her life. He has placed reliance upon the judgment in 'Pawan Kumar Vs. State, W. P. (Crl.) 905/2009 decided by Hon'ble High Court of Delhi on 15.02.2010' to contend that N having abandoned the guardianship of her parents and joined the accused without being subjected to any kind of pressure, inducement etc. and without any offer or promise from him, cannot be said to have been so induced as to constitute offence under Sec. 366A IPC or for that matter under Sec. 363/366 IPC under which provisions the chargesheet was filed.
11. So far as the age of victim is concerned, we will have to fall back on the relevant provisions of 'The Juvenile Justice (Care & Protection of Children) Act, 2000'. The said Act not only prescribes special procedure for dealing with juveniles who are in conflict with law but also for the children in need of protection of law. The victim N falls SC No. 17/1/14 FIR No. 173/12 P.S. Swaroop Nagar State Vs. Dilshad. Page No. 9 of 14 in the second category and therefore Sec. 7A of the said Act and Rule 12 of the relevant Rules framed under the Act for Delhi, are material given that N is a juvenile on being assessed on the basis of either set of her age related documents. On a conjoint reading of the provisions, it transpires that as against the Central Rules where the matriculation or equivalent certificate has been given primacy over the date of birth certificate from the school first attended by juvenile in order of precedence, it is in reverse order under the Delhi Rules. Applying the same to the facts in hand, the obvious corollary is that the birth certificate issued by Govt. of NCT of Delhi Ex. PW 2/B and Matriculation Certificate Ex. PW 2/C get eclipsed by the documents provided by the school first attended by N i.e. admission form Ex. PW 13/A and admission register Ex. PW 13/G. As against the projected date of birth of 05.01.1995 of victim N, her date of birth of 07.06.1996 contained in latter set of undisputed documents is accepted and it is held that she was of about 16 years 3 months on 01.09.2012 when the offence was allegedly committed.
12. There is no evidence of the victim having been seduced to submit herself for illicit intercourse by any person from 01.09.2012 till her recovery by Police on 16.09.2012. The prosecution has not been able to establish that an element was lurking in the mind of victim at any time during this period to impute her knowledge that she was likely to be forced to have illicit intercourse with a person. In fact the family members of accused on seeing that N was accompanying him when he reached his village, had thrown him out of the house but accommodated her in the house and asked her to go to her parents, as per her statement Ex. PW 5/A under Sec. 164 Cr.PC. It was the prosecutrix SC No. 17/1/14 FIR No. 173/12 P.S. Swaroop Nagar State Vs. Dilshad. Page No. 10 of 14 who had refused to leave and had even agreed to their proposal of marrying accused.
13. Even the complainant/PW2 did not whisper about sensing that his daughter had been kept in the house of accused in village Kothra, District Rampur, UP under pressure, influence or promise. The fact that N had left her house and thereby the custody of her parents on 01.09.2012 on the false pretext of fetching some books from library in Keshavpuram and instead went to INA Metro Station to meet accused Dilshad, itself sufficiently reflect that no force, deceit, inducement or allurement was applied on her by the accused. Apparently, the girl was very much infatuated towards the accused, elder to her by about 34 years and working as a Carpenter at that time. The assessment get doubled up by the fact that the victim although was carrying her mobile phone but had kept it switched off throughout so as not to provide an inkling of her plan and location to her parents and relatives who may look out for her.
14. The victim had completed her schooling and was pursuing graduation when the incident had taken place. She was commuting to distant places albeit in Delhi, independently. She has an elder brother and a sister both of whom were married. Even if, she was born in a village in District Hamirpur, UP, by virtue of her entire education in a metropolitan city and upbringing in the open atmosphere of Delhi, she had acquired enough maturity as to be able to understand the consequences of her acts/omissions. Had she perceived any kind of enticement or something amiss while going away from the custody of her parents, she had the courage and ample opportunities to raise alarm and draw attention of surrounding people or the law enforcing authorities. The legal SC No. 17/1/14 FIR No. 173/12 P.S. Swaroop Nagar State Vs. Dilshad. Page No. 11 of 14 proposition in such cases has been summed up in the case aforecited by Sh. Sharma that if a minor, of her own abandons the guardianship of her parents and joins a boy, without any role having been played by the boy in her abandoning the guardianship of her parents and without her having been subjected to any kind of pressure, inducement etc. and without any offer or promise from the accused, no offence of kidnapping, abduction etc. will be made out when the girl is aged more than 16 years and is mature enough to understand what she is doing. Of course if the accused lays the foundation by inducement, allurement etc. and that influences the minor or weighs with her in leaving her guardians custody and keeping and going with the accused then it is difficult to accept that the minor had voluntarily come to the accused. Reliance for reaching this conclusion was placed on 'Shyam & anr. Vs. State of Maharastra, AIR 1995 SC 2169' ; 'State of Karnataka Vs. Suresh Babu, 1994 Crl. L.J. 1216' ; 'Mahabir Vs. State, 55 (1994) DLT 428'; 'Piara Singh Vs. State of Punjab, 1998 (3) Crimes 570' & 'Bala Saheb Vs. State of Maharashra, 1994 Crl. L.J. 3044'.
15. The same proposition has been carried forward in 'Lakhan Singh Vs. State of MP, 2004 Crl. L.J. 2473' & 'State of NCT of Delhi Vs. Rishipal, Crl, L.P. 240/2011 decided by Hon'ble Division Bench of Delhi High Court on 26.08.2011'.
16. The conduct of victim N after being recovered from the house of accused is also worth noticing. On being brought to Delhi she had refused to undergo internal medical examination by the Gynecologist at government hospital vide MLC Ex. PW SC No. 17/1/14 FIR No. 173/12 P.S. Swaroop Nagar State Vs. Dilshad. Page No. 12 of 14 15/A. The medical officer did not report any visible mark or physical signs indicating that she was subjected to physical relationship in near past. On being applied for her custody, she had refused to accompany her parents and had to be sent to Nari Niketan. She was counseled by PW 7 and PW 8 on 16.09.2012 and apparently on being made to realize her mistake in the available social set up. Even then N did not support the prosecution case in her statement Ex. PW 5/A under Sec. 164 Cr.PC nor implicated the accused for even a minor offence. She insisted that she had accompanied the accused out of her own free volition. Variation in the statement of N as PW5 and Ex.PW5/A has not been questioned by either party. None of the family members of accused, who were found present in the house by the raiding party lead by PW20 was examined in this behalf. IO for unknown reasons also did not collect the record and proceedings in respect of the marriage application filed by the accused and prosecutrix at former's native place and find out who had prompted it.
17. There are minor aberrations in the deposition of witnesses about the time for which the raiding party had stayed at the residence of accused and about preparation of any document there but the defence not having raked it up points to their triviality. It is however significant that the IO/PW20 did not testify about the victim and her parents having been taken for counselling just before getting her statement recorded by a Magistrate. Moreover the call records of the mobiles of N and accused although were collected during investigation yet withheld by the IO due to which adverse inference is liable to be drawn against the prosecution.
SC No. 17/1/14 FIR No. 173/12 P.S. Swaroop Nagar State Vs. Dilshad. Page No. 13 of 14
18. The sum and substance of above discussion is that the essential ingredients of the charged offence could not be distilled by the prosecution. The prosecution also could not establish even the minor offence under Sec. 363 IPC against the accused. Hence the accused is hereby acquitted of charge.
Announced in the open court on 26th August, 2016 (Sunil K. Aggarwal) Addl. Sessions Judge04 (NorthWest) Rohini Courts, Delhi SC No. 17/1/14 FIR No. 173/12 P.S. Swaroop Nagar State Vs. Dilshad. Page No. 14 of 14