Delhi District Court
The Case Of The Prosecution In Brief Is ... vs . on 5 September, 2011
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.251/10
FIR NO. 282/09
U/S 376/363/366/354 IPC
PS Vijay Vihar
Unique Case ID No. : 02404R0288402009
State
Vs.
Mohd. Anjar s/o Mohd. Hassan
r/o C63, Budh Vihar Phase II,
Mange Ram Park, Delhi.
Date when committed to the court of Sessions :07.11.2009
Date when case reserved for judgment : 30.08.2011
Judgment pronounced on : 05.09.2011
JUDGMENT:
1. The case of the prosecution in brief is that on 27.08.2009, the prosecutrix along with her mother (names and addresses withheld for secrecy reasons) came to PS and got recorded her statement to the effect that she (the prosecutrix) was aged about 10 years and was studying in third standard and that on 27.08.2009, at about 3 p.m, she was playing in the gali when a person, who was not known to her previously and whose name was Mohd. Anjar, came and asked her to accompany him to which she refused and thereafter said SC No.251/10 Page 1/27 person forcibly took her along with him to the Jheel Park, Begum Pur and put off her underwear and started penetrating his finger into her vagina and when he was about to penetrate his penis in her vagina, in the meantime some boys came there who gave a beating to the said person and brought her to her house and when her mother came to the house, she narrated entire incident to her who took her to the PS.
2. On the basis of the said statement, the FIR was got registered and during investigation, the prosecutrix was got medically examined where the exhibits were preserved and same were seized, the site plan was prepared and accused was arrested in the case, who was also got medically examined and certain exhibits were preserved from his body also by the doctor which were seized, the exhibits were sent to FSL and subsequent to the filing of the charge sheet, the result of the FSL was placed on the record, the documents with regard to date of birth of the prosecutrix were procured and placed on record and the charge sheet was filed.
3. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide her order dated 16.01.2010, framed charges against the accused u/s 363/366/354 & 376 r/w 511 IPC, to which he pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case, has produced as many as 16 witnesses which have been discussed below.
5. The statement of the accused u/s 313 Cr.PC was recorded SC No.251/10 Page 2/27 wherein he pleaded his innocence and denied the incriminating evidence against him as false and examined DW1 in his defence, who deposed regarding the implication of the accused in the false case as the family of the accused was residing in the adjoining room of the place of work of DW1 and the accused at Budh Vihar and the accused was having four daughters and that her youngest son was adopted by the accused as his son who was studying at Government School in Sector 23, Rohini and accused along with DW1 used to go to school for taking the said adopted son in the afternoon at about 4 or 4.30 p.m daily and on the day of incident also, they had gone to the school to bring the said adopted son back to the house and in her cross examination, DW1 replied that no Deed of Adoption was executed between her and the accused with regard to the said son and that she had heard about the prosecutrix who was residing at Begum Pur, Delhi, whose mother used to sell flowers at Hanuman Mandir, Begum Pur. DW1 further admitted that she did not make any complaint either to senior police officers or before a judicial forum regarding the false implication of the accused in the present case and that accused sometimes used to go to leave her said son at his school and sometimes she also accompanied the accused to the school and that after leaving the said son at the said school, she and accused or the accused used to come back and that her said son used to go to school at 12 noon and used to return at 6 p.m.
6. I have heard Ld. APP for the state, Sh. Aseem Bhardwaj, SC No.251/10 Page 3/27 Amicus Curie, Advocate for the accused and perused the record.
7. PW2 Ct. Ravinder Kumar deposed that on the night intervening between 27/28.08.2009, he participated in the investigation of the present case and the IO had sent the prosecutrix along with W/HC Krishna, mother of the prosecutrix and himself for medical examination at BSA hospital, Rohini and after medical examination, doctor handed over the exhibits and one sample seal to the said W/HC, who gave the same to the IO which were seized vide seizure memo Ex.PW2/A and that in the morning of 28.08.2009, at about 6 a.m, accused Mohd. Anjar, present in court, was arrested from Budh Vihar Phase II, at the instance of the prosecutrix and her mother vide his arrest memo Ex.PW1/B and his personal search was conducted vide memo Ex.PW2/B who made his disclosure statement Ex.PW2/C and pointed out the place of occurrence vide memo Ex.PW2/D. He answered in his cross examination on behalf of the accused, that the persons of the locality were present at the time of the arrest of the accused but they did not sign any memo regarding the arrest nor the IO asked any person to sign the said memos.
8. PW3 HC Rajneesh was the duty officer who proved the FIR as Ex.PW3/A. PW4 Dr. Dipti Bhalla prepared the MLC of the prosecutrix and proved the same as Ex.PW4/A and she referred the prosecutrix to Sr. Resident, Gynae. PW5 Ms. Nirmal was the Principal of the Primary School of Budh Vihar Phase I, who proved the admission register wherein vide entry No.9199 on 10.04.2007, SC No.251/10 Page 4/27 the prosecutrix left the school on 06.04.2010 and date of birth of the prosecutrix was mentioned as 15.05.2000 and copy of the same was proved as Ex.PW5/A, copy of admission form was proved as Ex.PW5/B and copy of the affidavit submitted by the parents at the time of admission was proved as Ex.PW5/C and she also proved the certificate issued by the then Principal of the school in this regard as Ex.PW5/D. PW6 Ct. Raj Singh deposited the exhibits of the case with FSL Rohini. PW7 Dr. Raj Mohan Trevedi prepared the MLC Ex.PW7/A and medically examined the accused. PW9 Ct. Ram Avtar accompanied the accused for his medical examination and he is the witness of seizure of the exhibits from the doctor vide memo Ex.PW9/A. PW10 HC Rajesh Kumar was the MHC(M) who deposed regarding deposit of the said exhibits and sending the same to FSL Rohini, Delhi. PW11 Dr. Vijay Dhankar gave the opinion with regard to capability of the accused of performing sexual intercourse on the MLC Ex.PW7/A.
9. PW12 SI Madan Lal was the IO of the case who deposed regarding the said investigation conducted by him and he proved the site plan as Ex.PW12/A and he tendered the result of FSL as Ex.PX and Ex.PY. In his cross examination, PW12 replied that prosecutrix visited the PS at about 9.45 p.m and that a lady from NGO had visited the PS after the recording of FIR for counseling and that he recorded the statement of prosecutrix in the presence of her mother but signatures of the mother of prosecutrix were not taken on the SC No.251/10 Page 5/27 statement. He further answered that he had not noticed any bloodstains on the spot nor any other incriminating articles i.e button, small bits of clothes etc. at the spot. He further replied that mother had not identified the boys who had left the prosecutrix at home. He answered that mother of the prosecutrix had told about the reason for late coming to the PS for lodging the FIR as she was not at home in the evening after 3 p.m till evening. He admitted that the house of the prosecutrix was situated in a residential colony. He answered that he had tried to make inquiries from the children in the neighbourhood who were playing with the prosecutrix at the relevant time but their parents did not allow to make him any inquiries from the said children. He further answered that the mother of the prosecutrix had told him that prosecutrix was wearing the same clothes which she was wearing at the time of incident. He answered that he had not noticed any soil stains and dry leaves or grass on the clothes of the prosecutrix when she appeared before him. He further answered that he had asked from the prosecutrix about the names of the other children who were playing with her in the gali but the prosecutrix could not answer the question. He further replied that house of accused was found open when they visited the house of accused and that one lady by the name of Rajni was present there who informed him that she was working with the accused but said Rajni was not joined in the investigation nor her statement was recorded. He further replied that he had not seized SC No.251/10 Page 6/27 the clothes which were worn by the accused at the time of alleged incident. PW12 further replied that he had not checked and collected the record of the prosecutrix from the school as to whether she had attended the school on that day or not. He further answered that he had not collected the birth certificate of the prosecutrix. He admitted it as correct that accused was assaulted by 2/3 persons prior to the incident and the said incident had taken place about 23 months prior to the incident.
10. PW13 Dr. Asha Arya was the Gynecologist who internally examined the prosecutrix vide MLC Ex.PW4/A. PW14 was the Counselor from NGO who deposed regarding talking to the prosecutrix and whatever was told by the prosecutrix was recorded by her and she gave her report as Ex.PW14/A.
11. Coming to the deposition of the parents of the prosecutrix and the mother of the prosecutrix appeared as PW8 who deposed that she had five children and she used to sell flowers at Hanuman Mandir, Begum Pur and her eldest son was 18 years, second of 16 years, third of 13 years, fourth i.e the prosecutrix 11 years at present and fifth child about 9 years and she further deposed that prosecutrix was ten years of age at the time of incident which took place on 27.08.2009 and that on the said day, she left her house leaving behind her daughter, the prosecutrix and another daughter who had come from their school and that her other daughter had gone for tuition and she went out of her house at about 11.30 a.m to provide SC No.251/10 Page 7/27 food to her husband at Begum Pur and at about 5 p.m she came back to her house on receiving telephone call from her eldest daughter and that her said daughter and prosecutrix were weeping at that time and they told about the incident and thereafter she took the prosecutrix to the PS where statement of the prosecutrix was recorded and police had also called one NGO Counselor and prosecutrix was got medically examined at BSA Hospital where they remained up to 4 a.m on 28.08.2009 and thereafter they accompanied the police in search of the accused and he was identified and arrested on the pointing out of the prosecutrix from his house as he was preparing to flee away and that MLC of the prosecutrix bears her signature at point X whereby she gave consent for medical examination of the prosecutrix and that she gave photocopy of certificate issued by Primary School Budh Vihar regarding date of birth of the prosecutrix to the police which is Ex.PW5/D and that about 45 months ago, the counsel named Sh. Jamal, on behalf of the accused, had reached to her house and threatened her to withdraw the case or face the dire consequences.
12. In her cross examination, PW8 replied that generally she used to leave her house at about 10.30 a.m to provide food to her husband at the said shop of selling flowers and sometimes she remained on the said shop to share the work of the shop and sometimes she used to come back after delivery of the food and that she and her husband, both were working at the said shop of selling flowers. She SC No.251/10 Page 8/27 further replied that prosecutrix used to leave for school at about 7 a.m and school was over by 12 noon and she used to return to the house at about 12.30 p.m. She answered that there are 50 to 60 houses in the locality which were multi storied as well as single storied. She further answered that the house in which she was living was occupied by three tenants including her and at the ground floor the landlord was residing. She answered that she was not knowing the accused prior to the incident. She denied the suggestion as wrong that accused was known to her prior to the incident or that any quarrel had taken place between her brother in law and the accused and that on the day of incident, prosecutrix had returned to the house from the school at about 12.30 or 12.45 p.m and in her further cross examination dated 20.12.2010, she replied that her daughter had come to the house from the school at about 2 p.m on the day of incident and that prosecutrix was playing in the gali along with her younger sister and the said younger sister had come back to the house for the call of nature after leaving the prosecutrix alone. She further answered that her statement was recorded two or three times by the police. She denied the suggestion that one Ravinder, the friend of her husband, had quarreled with the accused 3 or 4 months prior to the day of incident or that to falsely implicate the accused due to the said quarrel, this case was fabricated against the accused. She answered that accused was arrested in the morning of 28.08.2009. She further replied that she had not stated to the police SC No.251/10 Page 9/27 in her statement that on the day of incident she had gone to give food to her husband as she had gone for some work on the said day. She answered that father in law of her sister was ill on the said day and she had gone to see him. She answered that she had not seen the said boys who gave beatings to the accused and brought back her daughter to the home and that was why she did not make inquiry about them.
13. PW16 is the father of the prosecutrix who deposed that he was illiterate and was running a flower shop outside a temple at Begum Pur and that prosecutrix was his daughter who was 9 years old at the time of incident but he did not remember her date of birth and that on 27.08.2009, he had gone outside from his house and when he came back in the night, his wife told him about the incident with the prosecutrix and thereafter his wife along with prosecutrix went to the PS and got a case registered and that he had produced the date of birth certificate issued from the school of prosecutrix to the police which is Ex.PW5/D. In his cross examination, PW16 replied that he could sign only. He replied that on the day of incident when he had come to his house, his wife had already registered the FIR with the police. He further answered that he got married about 20 years ago at District Aligarh, UP and was residing in Delhi for the last 1213 years and that he had five children and prosecutrix was born at his native place at Aligarh after about 67 years of his marriage and that his first child was born after about 45 years of his marriage and that SC No.251/10 Page 10/27 he had not got registered the date of birth of the prosecutrix with Village authorities or Municipal authorities. He admitted it as correct that he had mentioned the date of birth of the prosecutrix in the school record as per the requirement of her admission in the school and that the prosecutrix might be 9 years old when she was admitted in a private school at Budh Vihar, prior to her admission in government school and that prosecutrix studied in that private school for about 2 years. He admitted that he had no personal knowledge about the investigation conducted by the police as he was on his work.
14. Coming to the deposition of the prosecutrix who appeared as PW1 and it was observed by this court that from appearance she was of 10 years of age and thus, certain questions were put to her to know as to whether she was capable of giving rational answers to the questions but considering her tender age, she was examined without Oath in Camera Proceedings.
15. PW1, the prosecutrix, deposed that she did not remember the date of the incident but many months ago at about 3 p.m, she was going to the house of her aunt and in the meantime the accused present in court, whose name she did not know, came there and he took her to a park after shutting her mouth and took off her clothes and he put his finger into her organ used for urinating. At this stage, the witness was again shy or full of fear to speak something further and that was why she was called at the dais of the judge and in order SC No.251/10 Page 11/27 to ease her, some questions were put for diverting her attention wherein she denied to know the post of the judge.
16. The prosecutrix further deposed that the accused thereafter started slapping her and he had induced (in vernacular the witness had used the expression Behka Fusla Kar) her to the said park and that her mother was away and that she did not know as to what the accused was doing after catching hold of her and that one person was passing through the park who might have informed her mother and her mother came there and rescued her from the accused and that mother took her to the house and she was not taken anywhere from her house. At this stage, Ld. Addl. PP cross examined the witness as she was resiling from her previous statement.
17. In her cross examination on behalf of the State by Ld. Addl.
PP, she admitted it as correct that she had signed on Ex.PW1/A at point A which she signed before the police and that she knew the accused prior to the said date of the incident but she did not know as to where he was residing and that she was taken forcibly by the accused and that the park was known as Mange Ram Park and that the accused only put his finger inside her urinary organ but he did not take out his penis nor he tried to penetrate the same into her said organ and that her Mausa (uncle) was at the house of the accused and the accused caused teeth bite injury on the right hand of her Mausa and that her father, mother, Mausi (aunt) and Mausa accompanied her to the PS and that she had told all these facts to the SC No.251/10 Page 12/27 police and thereafter she signed Ex.PW1/A and that the accused was about to take out his penis but he could not bring the same near to her said organ and that the police had not asked from her about the said fact of accused trying to penetrate his penis into her said organ and that she could not tell all the things to the police as to what transpired with her at the park and that she was taken to the hospital by her Mausa, Mausi, Mama (maternal uncle), one aunt and father of one Vishal and police had reached the hospital separately and that accused was also taken to the hospital on motor bike by the police. She further answered in the said cross examination that she had stated to the police that accused took out his penis and tried to penetrate the same into her said organ which she also told to the police. At this stage, ld. Defence Counsel has vehemently objected to the said question on the ground that the same question was asked twice before by this court on behalf of the Ld. Addl. PP when the witness was sitting by the side of the judge on the dais. She further admitted in her cross examination that some boys had come inside the park and gave beatings to the accused in the park and the said boys took her to her house where she narrated the said things to her mother and that the police did not take her again to the park and that she had told the police about the place where the accused took her and that the police apprehended the accused on hearing her voice. At this stage, it was observed by this court that the said answer showed lack of coherence in understanding and answering the SC No.251/10 Page 13/27 question by the witness. She further admitted that name of the park was Jheel Park and that she did not understand site plan and that accused was apprehended by the police at her instance and on the day of incident, she was playing in the gali of her aunt and that she started knowing the accused since the day of incident only and not prior to the incident.
18. In her cross examination on behalf of the accused, she replied that her school timings were from 7 a.m to 2 p.m and she had gone to the school on the day of incident on foot. She did not know about the "time". She further answered that her younger sister was in fourth class although she was younger to her and she used to go with her to the school but after the school is over, she used to go to home with her friends. The witness was wearing her I.Card of the school and Ld. Defence Counsel pointed out that class of the witness was mentioned as IIIrd. She further answered that after coming to home from the school, she used to take something to eat and thereafter she used to go out to play and that she was playing football which she was having with him alone on the day of incident. She further replied that she was having her friends in the neighbourhood but they come out from their house in the evening only and that her aunt's house was situated in the other gali from the gali where her house was situated and there was a little distance. She did not know the address or the house of the accused nor she knew his name and she was confronted with her statement Ex.PW1/A where name and SC No.251/10 Page 14/27 address of accused was found recorded. She further answered that the accused took her to the Jheel Park after closing her mouth and eyes and that she had raised alarm and one person had come to her help and saved her. She denied the suggestion that accused did not take her to the Jheel Park. She answered that Jheel Park was at a considerable distance from the place where she was playing and that there were houses on the way to Jheel Park and that the accused took her through a lonely gali. Thereafter, again the Ld. Defence Counsel put the question with regard to sexual part of her statement, the witness was again called to the dais of the judge for putting the said questions and the witness answered "Yeh (the accused) apni pishaab karne wali jagah meri pishaab karne wali jagah me dalne ja raha tha tabhi kuch ladke wahan aa gaye aur is vajhe se yeh nahi daal paaya"
(The accused was going to penetrate his penis in to my vagina but in the meantime, some boys came there due to which he could not penetrate). She further answered that she was wearing suit salwar at the relevant time and her salwar was put off by the accused and that she was wearing underwear also which was also put off by the accused. She answered that she did not know about the time when she went to the PS along with her mother and that her mother might be knowing the time and that she was not read over whatever was recorded by the police and that police made inquiries from her only once and thereafter she came back to her house after attending the PS and that her mother had taken her to the hospital on the same SC No.251/10 Page 15/27 day. She further replied that accused was arrested in the afternoon. She further answered that she did not know any person by the name of Ravinder and that there was no quarrel with her father of anyone 3 or 4 months prior to the incident. She denied the suggestion that she had been tutored by her mother to depose against the accused. At this stage, Ld. Defence Counsel wanted to confront certain facts to the witness from her previous statement Ex.PW1/A which was not allowed as such but since the previous statement was exhibited, the Ld. Defence Counsel was given a liberty to point out the omissions or improvements or new facts mentioned by the witness in her examination in chief before the court.
19. Admittedly the prosecutrix was a minor and more specifically below 16 years, as per court observation, because the age of 9 or 10 years of a child cannot be stretched to make her an adult even by a guess work. As per her school record also, as deposed by PW5, the date of birth of the prosecutrix was 15.05.2000 and on the day of incident i.e. 27.08.2009, she remained a minor. Even if we go by the worst most deposition and that too in favour of the accused of the father of the prosecutrix PW16 that her daughter might be of nine years of age when she was got admitted in a private school at Budh Vihar prior to her admission in government school where the prosecutrix studied in the said private school for two years, the prosecutrix was admitted to classI on 10.04.2007, her age on the date of admission to the said government school comes to little SC No.251/10 Page 16/27 below seven years and on the day of incident she was of the age of above 9 years and adding two years of her study in the private school, she comes of 11 years of age on the day of incident.
20. The Ld. Defence Counsel has pointed out that prosecutrix in her deposition before the court, specifically answered that she did not know the name of the accused whereas in her previous statement Ex.PW1/A, she has given the name of the accused, his parentage and residential address also and the same is a material contradiction to be taken into consideration and in this regard he has relied upon a judgment of the Hon'ble Supreme Court in Badruddin's case reported as AIR 1981 SC 1223 wherein it was held by the Hon'ble Apex Court that even if certain portions of the deposition of a witness were not confronted with the witness with regard to his or her previous statement, still the contradictions, improvements or omissions may be taken cognizance of.
21. The premises laid down by the Hon'ble Supreme Court with regard to the said law in the said case was already followed by me while I granted a right to the accused during the cross examination of the prosecutrix to point out the discrepancies in her previous statement Ex.PW1/A and deposition before the court.
22. So far as appreciating the discrepancies or alleged improvements or omissions are concerned, I am of the considered opinion that tender age of the prosecutrix, difficulty in understanding and appreciating the questions and replying the same, SC No.251/10 Page 17/27 reflex actions +coming to her mind as a child, must be kept in mind before appreciating any such contradictions. Secondly, the prosecutrix or her parents belonging to a very low socio economic strata of the society were not supposed to control the investigation and directing the IO to investigate the case in a particular direction. With these precautions in the mind, the fact that prosecutrix had given name, parentage and address of the accused in her previous statement Ex.PW1/A is not so disturbing as to throw out the case of the prosecution altogether. In her statement Ex.PW1/A, she narrated that one person, who was not known to her previously but whose name was Mohd. Anjar s/o Mohd. Hassan, r/o C63, Budh Vihar Phase II, Delhi. Naming the accused in her previous statement might have come to her during the time when the search for the accused was being made or by some other source but in her deposition before the court she narrated throughout in her examination in chief and cross examinations, as reproduced above, that she was not knowing the accused prior to the incident but identified him before the court. In the case of a child witness, it is very difficult to separate chef from the grain. However, identity of the accused has been well established by the child witness because it was not the case of a fleeing glimpse or a bird's eye view but as per deposition of the prosecutrix, she remained with the accused at the time of incident for a considerable time having the opportunity to note down the features of the accused so as to identify him as the SC No.251/10 Page 18/27 person who committed wrong with her.
23. Next contention, which has been raised by the Ld. Defence Counsel, is that the present case is not covered within the definition of attempt to rape as the accused has not crossed the stage of preparation of the offence and he has relied upon a judgment of the Hon'ble High Court of Delhi in the case titled Smt. Sudesh Jhaku Vs. K.C.J. and others reported as 1996 JCC 541 wherein the court was faced with a case wherein accused used to thrust his fingers in vagina and anus of the minor girl and also made her suck his penis from her mouth, it was held that offence falls only u/s 354 IPC and not u/s 376 r/w 511 IPC. Ld. Counsel has further relied upon a judgment of the Hon'ble High Court of Delhi titled Amarjeet Singh Vs. State reported as 1996 JCC 301 wherein the Hon'ble High Court has held that accused toed her salwar to which she resisted and on her alarm, her brother came in and after some scuffle with her brother, the accused ran away and that the prosecutrix nowhere stated that the accused removed her clothes or attempted rape or she nowhere stated that accused had removed his trousers and thus, it was a case u/s 354 IPC and not of attempt to rape and Ld. Defence Counsel again relied upon a judgment of the Hon'ble Supreme Court titled Tarkeshwar Sahu Vs. State of Bihar reported as 2006 (3) JCC 1735 wherein it was again held in the given circumstances that the appellant had neither undressed himself nor asked the prosecutrix to undress and as such, there was no question of penetration and thus, SC No.251/10 Page 19/27 the case falls under the category of outraging the modesty of the female and not one under attempt to rape.
24. I am in complete agreement with the said contentions raised by the Ld. Defence Counsel. From the said deposition of the prosecutrix it can safely be inferred that the accused after putting off her lower and under garment was putting his finger into her female organ and it has specifically come in her deposition that accused did not take out his penis out of his clothes or undressed himself when, due to the intervention of some persons, he was caught at that time. Following the said law laid down by the said superior courts, the present case also falls undoubtedly under the category of outraging the modesty of the prosecutrix and it falls short of the offence of attempt to rape.
25. Having held so, the next question which arose before this court was as to whether the prosecutrix was kidnapped and that too with an intention that she may be forced or seduced to illicit intercourse or knowing it to be likely that she would be forced or seduced to illicit intercourse. Ld. Defence Counsel has vehemently contended that the presence of the prosecutrix already in the park, where the alleged incident happened, cannot be ruled out because of the doubtful deposition of the prosecutrix.
26. Barring the offences of tortuous liability, the offence of kidnapping, as defined in Section 361, is probably the only offence under the IPC wherein the intention or the mens rea has been SC No.251/10 Page 20/27 dispensed with. The language of the Section provides "whoever takes or entices any minor". The words "intentionally", "fraudulently", "wrongfully", "malignly" are deliberately missing from the language of the section. Mere taking or enticing is sufficient to constitute the offence. The other part of the definition, as provided u/s 361 IPC as regard "out of the keeping of the lawful guardian of such minor", may be defined to include the state of things where the minor may be playing on the road or may be in the defecto custody of some other person for the time being, but the domain over his or her "keeping" remains with the guardian who is the dejure possessor of the minor. If this is the meaning of the language as used in Section 361 under the law, even for time being if the minor is taken or enticed, the other ingredient of the offence that the minor was taken out of the lawful guardianship of his guardian becomes complete.
27. Judging in the light of the definition provided u/s 361 IPC, the prosecutrix in her said deposition categorically, clearly and without any assailing, has maintained that accused took her to a park where the said acts were done with her by the accused. I am not concerned here in the peculiar circumstances of the present case, with the place as such as to whether it was a gali from where the prosecutrix was taken or whether it was a park where she was taken for the said acts committed by the accused but substance of her deposition remained unrebutted that the place from where she was taken and the place SC No.251/10 Page 21/27 where the wrong acts were done to her body by the accused were different and as per her categorical deposition, it was the accused who took her along with him covering the said distance between the said two places. The moment accused started taking her, the prosecutrix was taken out of her lawful guardianship and the fact that her parents were not available at that time nor were having direct control over her are immaterial in these circumstances. I have already held that the prosecutrix was a minor. Now all the three ingredients i.e the person taken away was a minor, that she was taken and that she was taken out of lawful guardianship of her parents, are complete in the present case beyond reasonable doubt. Thus, from the deposition of the prosecutrix the offence u/s 363 IPC has been clearly spelled out against the accused.
28. So far as offence u/s 366 IPC is concerned, from the very language of the said provision of law, it uses very loose expressions and can be broadly interpreted. The words "knowing it to be likely that she will be forced or seduced to illicit intercourse" does not mean that she must have been subjected to illicit intercourse but if the circumstances are otherwise establishing the fact that she was taken with such intention or knowledge, the offence is complete. In the present case the very offence u/s 354 IPC proved against the accused beyond reasonable doubt, established the ingredients of the offence u/s 366 IPC also beyond a shadow of doubt. But for the intervention of some persons the accused would have been SC No.251/10 Page 22/27 successful in his illegal design of committing sexual intercourse with her, is nothing but kidnapping the prosecutrix knowing it to be likely that she would be forced or seduced to sexual intercourse. Thus, I am of the considered opinion that offence u/s 366 IPC has also been proved against the accused.
29. It has been vehemently contended that accused has been falsely implicated at the instance of the parents of the prosecutrix due to some previous enmity and a further defence of plea of alibi has been taken to the effect that accused was not present at the alleged place of occurrence at the time of incident as he had gone to the school of said alleged child taken in adoption by him as deposed by DW1.
30. So far as contention of false implication is concerned, it has not been explained as to why the false implication was only at the behest of the prosecutrix when the parents of the prosecutrix were admittedly having more daughters who could be used for the said purpose. Moreover, the previous enmity or quarrel has not been established on behalf of the accused so as to give a reasonable doubt with regard to his false implication.
31. As regard the plea of alibi, it is well established premises of law that this defence is a double edged weapon meaning thereby that if a person fails to propound the defence of alibi with a reasonable certainty, it may go against him. The said adopted son admittedly used to go to school at 12 noon and used to return at 6 p.m and it has SC No.251/10 Page 23/27 been categorically admitted by DW1 that after leaving the said son at school, the accused used to come back to the house and again he used to go for taking the said adopted son from the school. In between 12 noon to 6 p.m, there was ample time for the accused to easily commit the offence alleged against him. Thus, the accused has miserably failed even to prima facie stand to his defence of alibi and the said contention and defence are hereby rejected as not worthy of any credit.
32. Although the accused was not charged with the offence u/s 354 IPC, but being a minor offence than that of the offence u/s 376 r/w 511 IPC, I invoke sub clause (2) of Section 222 Cr.PC and convict the accused u/s 354 IPC who is also held guilty and convicted for the offences punishable u/s 363/366 IPC. (Announced in the open court on 05.09.2011) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.251/10 Page 24/27 IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER), ROHINI COURTS, DELHI SC NO.251/10 FIR NO. 282/09 U/S 376/363/366/354 IPC PS Vijay Vihar Unique Case ID No. : 02404R0288402009 State Vs. Mohd. Anjar s/o Mohd. Hassan r/o C63, Budh Vihar Phase II, Mange Ram Park, Delhi.
ORDER ON THE POINT OF SENTENCE Present: Ld. APP for the State.
Sh. Aseem Bhardwaj, Amicus Curie, Adv. for the convict.
1. Heard on the point of sentence. It has been submitted that convict is the only earning member of the family having his wife and four minor daughters to be looked after and that convict is not a previous convict nor involved in any other offence. It has been submitted that wife of the accused is suffering from stone in her stomach requiring special care and there is no other family member to look after her also.
2. On the other hand, Ld. APP has submitted that stringent SC No.251/10 Page 25/27 punishment creating a deterrent effect in the society may be imposed as the victim was a child witness and no leniency should be shown to such kind of convicts.
3. The glaring feature of the present case is that convict is having four minor daughters and admittedly, out of them one or two daughters are of the same age range as that of the victim of the present case. This fact in itself is an aggravating circumstance that the convict did not think of his own daughters prior to outraging the modesty of the victim and at the same time, this is a mitigating factor also as the daughters of the convict as well as the convict are going to suffer a stigma of having been convicted in a case with such allegations and moreover, the said daughters of the convict may be looking with suspicion at their own father in view of the said conviction. A balance is to be drawn in the interest of the society as well as in the interest of the family of the convict.
4. In the circumstances, I am of the considered opinion that interest of justice shall be served by directing the convict to undergo RI for a period of two years u/s 354 IPC and he is further directed to undergo RI for a period of 3 years u/s 363 IPC and a fine of Rs.1,000/ and he is further directed to undergo RI for a period of 3 years u/s 366 IPC and a fine of Rs.1,000/. The convict shall further undergo SI for a period of one month each in default of payment of the said fine for the said two offences. All the said sentences shall run concurrently. Benefit of section 428 Cr.PC is extended to the SC No.251/10 Page 26/27 convict. A copy of the judgment and this order be given free of cost to the convict forthwith. The convict has paid the fine of Rs.2,000/. The file be consigned to the Record Room.
(Announced in the open court on 05.09.2011) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.251/10 Page 27/27