Delhi District Court
State vs Accused on 11 February, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS
JUDGE, (SPECIAL FAST TRACK COURT) KARKARDOOMA
COURTS, SHAHDARA, DELHI
Unique Case I.D. No.02402R0340462011
SC NO. 09/13 Date of Institution :30.11.2011
FIR No.322/11 Date of Argument :30.01.2013
PS Nand Nagri Date of Order :11.02.2013
U/S 363/366/376 IPC
State Versus Accused
Shahnawaj Alam
S/o Sh. Anwar Ul Haq
R/o Village Jabari, P.S. Manul
Gaon, Distt. Arahria, Bihar.
JUDGMENT
The facts in brief of the prosecution case are that on 01.08.2011 at about 4 a.m. at D-43, Nathu Colony, Nand Nagri, Delhi, accused Shahnawaz Alam enticed prosecutrix ___X___ aged about 17 years out of keeping of her lawful guardianship without their consent and that was done with the intention to seduce the prosecutrix to illicit intercourse and in continuation thereof in between 01.08.2011 to 09.08.2011, accused Shahnawaz Alam committed rape on her. Shri __________Y_______, brother in law (Jija) of the prosecutrix reported the matter to the SC No.09/13 State vs. Shahnawaz Alam Page 1 of 27 police and the police recorded his statement and on the basis of his statement FIR No. 322/11 u/s 363 IPC on 02.08.2011 was recorded. IO prepared the site plan after inspection of the place of occurrence and got flashed WT Message. Form ZIPNET was got filled in. He obtained the call detail records of telephone of prosecutrix and accused. On 14.08.201 at the pointing out of the complainant, accused and prosecutrix were apprehended at Anand Vihar Railway Station. Both of them were got medically examined. Samples were given by the doctor which were taken into possession and these were deposited in the malkhana and thereafter, these were sent to FSL, Rohini. At the time of arrest of accused, his arrest memo and personal search memo were also prepared. Statement of prosecutrix u/s 164 of the Code of Criminal Procedure, here in after referred to as the Code was also got recorded. FSL result was obtained after completion of investigation. Police filed charge sheet against accused for his trial for the offences punishable u/s 363/366/376 IPC.
2. Ld. Metropolitan Magistrate after supplying copies of charge sheet and documents to the accused committed this case to the court of sessions.
3. This case was assigned to Shri R.P.S. Teji Ld. ASJ SC No.09/13 State vs. Shahnawaz Alam Page 2 of 27 (FTC) who vide his order dated 09.12.2011 opined that there was sufficient material on record to frame charge against the accused for the offences punishable u/s 363/366/376 IPC. Therefore, charge against the accused for his trial for the said offences was framed and read over to him in vernacular language. He pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined Ms. ________X_______ as PW1; Dr. Sruthi Bhaskaran as PW2; Ms. Shuchi Laler, Ld. M.M. as PW3; W/HC Ranjeeta as PW4; Sh. ______Y_____ as PW5; W/ASI Shakun as PW6; HC Manoj Kumar as PW7; HC Bhagmal as PW8; Ct. Ram Kishan as PW9; SI Gopi Chand as PW10; HC Tuki Ram as PW11; and Chandragupt Narain, Administrative Officer, U.P. Board, Meerut as PW12.
5. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
6. The prosecution also examined WSI Usha as PW13; Dr. Parmeshwar Ram, CMO, GTB Hospital, Delhi as PW14; and Manisha Upadhyay, Sr. Scientific Officer SC No.09/13 State vs. Shahnawaz Alam Page 3 of 27 (Biology), FSL, Rohini, Delhi as PW15.
7. After closing of prosecution evidence statement of the accused u/s 313 of the Code was recorded. All the material and incriminating evidence was put to him. Accused admitted that he was residing in the neighbourhood of prosecutrix and he took prosecutrix to Bihar and both reached there on 09.08.2011 and that he and prosecutrix were apprehended at Anand Vihar Railway Station and that he was medically examined in the GTB hospital vide MLC Ex.PW9/A by Dr. P. Ram or that phone No. 9289386316 belonged to him. He expressed his ignorance about rest of the prosecution evidence and pleaded that he was falsely implicated in the present case due to reasons which were not known to him. Accused opted not to lead any D.E.
8. After closing of prosecution evidence, I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for accused and perused file.
9. In order to prove its case that accused committed an offence of kidnapping from lawful guardianship, punishable u/s Section 363 IPC, the SC No.09/13 State vs. Shahnawaz Alam Page 4 of 27 prosecution has to prove firstly, that the prosecutrix who was taken or enticed was under 18 years of age; secondly, that the accused had taken or enticed the prosecutrix out of the keeping of her lawful guardian.
10. In order to prove its case that accused committed an offence of kidnapping, abducting or inducing women to compel marriage, etc. punishable u/s 366 IPC, prosecution has to prove firstly, that the prosecutrix was abducted by the accused, i.e., accused either by force compelled or by any deceitful means induced the prosecutrix to go from her place and secondly, the prosecutrix was abducted with the intention that the prosecutrix may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced to do illicit intercourse.
11. In order to prove its case for the offence of rape, punishable u/s 376 IPC, the prosecution has to prove firstly, that accused committed sexual intercourse with the prosecutrix and secondly, sexual intercourse was committed against her will.
12. It has been argued on behalf of Ld. Additional SC No.09/13 State vs. Shahnawaz Alam Page 5 of 27 Public Prosecutor that prosecution witnesses have proved both the offences against the accused beyond any reasonable suspicion and shadow of doubt and the accused is liable to be held guilty and convicted for the said offences.
13. On the other hand, it has been argued by Ld. Defence Counsel that prosecutrix by her volition left the house of her sister and brother in law and the accused cannot be held guilty for that. He also stressed on the point that as told by the prosecution the age of the prosecutrix was 17 years and 3 months. Thus she was at the verge of attaining majority. She herself took the decision to accompany the accused and the accused cannot be held responsible for that act.
14. In support of his arguments Ld. Defence Counsel relied on a case Bhagwan Singh & Ors. v. State and Anr., 2006 [3] JCC 2050 wherein Delhi High Court held that:
"8. In the present case, we have two dates of birth of the prosecutrix before us. One is from her school certificate and the second is from her birth certificate purported to has been issued by the municipality. The law on this aspect is well settled that the court shall prefer the date of birth as mentioned in the municipality certificate in preference to the age mentioned in the school certificate. At present there is no cogent proof before this court whether the birth certificate collected by the Investigating SC No.09/13 State vs. Shahnawaz Alam Page 6 of 27 Officer from the municipality is genuine or not as the opportunity to challenge the same has not been given to the person affected by the age mentioned in the said certificate. As per school certificate, the date of birth of the prosecutrix is 04.03.1987 and thus her age was 19 years 4 months on the date of her marriage with petitioner No.1. As per municipality certificate, the date of birth of the prosecutrix is 25.04.1989 and thus her age comes to 17 years 3 months. The prosecutrix present in the court appears to be a grown up girl and to me she appears to be more than 18 years old. This court cannot ignore the fact that the petitioner is on her family way and is carrying pregnancy of three months from petitioner No.1 against whom FIR of kidnapping is lodged by the prosecutrix father. In Ravi Kumar Vs. State & Anr. reported as 124 (2005) DLT 1, A Division Bench of this court has ruled that the minority of the spouse cannot be a ground to declare their marriage illegal. As per this judgment, the marriage of such a spouse is neither void nor illegal on account of his or her being less than 18 years but over 15 years of age. I feel myself bound by the Division Bench Judgment of this court in Ravi Kumar's case (supra)."
15. Ld. Defence Counsel further relied on a case Mahabir v. State (Delhi), 1994(3) RCR 46 wherein Delhi High Court held that:
"8. Had Sheela really not seen the passage of sixteen summers? Let me recall the all important day. It was September 27, 1974. We have no birth certificate. Not even a school certificate. What we have on the record is the opinion of the Radiologist (PW8 Dr. A. Virmani). He gives her age about 14 years and below 16 years. But then we all know it is a mere opinion leaving a margin of 1-1/2 to 2 years swinging this way of that. But then why go by that opinion when we have Sheela and her mother telling us what should be taken to be her age? Sheela was examined in court on April 19, 1976 and her mother on the very next day, that is, April 20. Sheela gives her age as 18.SC No.09/13 State vs. Shahnawaz Alam Page 7 of 27
Her mother also assigns her the same age. If that be so, on the day of reckoning she surely had crossed the mark of 16 years. That makes her consent a live issue and since she was all along a willing party, Mahabir sails through the ordeal unscathed."
16. Ld. Defence Counsel further relied on a case Om Prakash v. State of Haryana, 1998 Cri. L.J. 1606 wherein P&H High Court held that:
"7. It is, thus, firmly established that Sumitra, prosecutrix, was a willing party to the whole affair and she being above 18 years of age, no offence is made out against the appellants. Therefore, the judgment under appeal is set aside and the appellants are acquitted of the charges levelled against them."
17. Ld. Defence Counsel further relied on a case Jinish Lal Shah v. State of Bihar, 2003(1) RCR (Criminal) 247 wherein it was observed by Apex Court that:
"Therefore, it becomes necessary for us to examine the prosecution case whether there was a threat or whether there was consent as contended by the defence. While we consider this question of existence of consent or absence of it we may also consider the charge under Section 376 IPC of which the appellant is found guilty by the Courts below because one of the ingredients necessary for establishing such a charge in regard to a girl over the age of 16 is the presence or otherwise of consent. Therefore, both for the purpose of 366 and for the purpose of Section 376 IPC, there should be material to establish that either the alleged marriage or the intercourse has taken place without the consent of PW-1 if she is above the age of 18 years or 16 years as the case may be.***
7. There is no doubt that the appellant who was a tuition teacher of PW-1 has misused the trust reposed in him by SC No.09/13 State vs. Shahnawaz Alam Page 8 of 27 the PW-1's family but when since the prosecution has failed to establish the fact that PW-1 was below the age of 18 and the evidence on record indicates that PW-1 had willingly gone away with the appellant, and in the absence of any threat, coercion or inducement, having been established by the prosecution we think it not possible to rely on the prosecution case to come to the conclusion that the appellant is guilty of the charges framed against him under Section 366-A and 376 IPC or even 366 as contended by the learned counsel for the State."
18. On the other hand, Ld. Additional Public Prosecutor for the State relied on a case, State v. Jai Hind, 2012 VI AD (Delhi) 170 wherein it was held by Delhi High Court that:
"32. ***In Rameshwar v. State of Rajasthan, AIR 1952 SC 54 where the Court held:
"The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."*** "38. In State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the SC No.09/13 State vs. Shahnawaz Alam Page 9 of 27 prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurances to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." [Emphasis supplied] Let us examine the prosecution evidence on record in the light of decisions referred by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel.
Whether prosecutrix was a minor on the date of occurrence
19. PW5 on this aspect deposed that on 01.08.2011 at about 4 a.m. _________X________ aged 17 years and 9 months were found missing from his house. There is no cross examination of PW5 about the age of the prosecutrix. PW10 in his cross examination stated that on 01.08.2011 complainant did not produce any document pertaining to age of prosecutrix. PW12 Administrative Officer, UP Board, Meerut on this aspect deposed that he had brought the original tabulation register of 10th Board Examination of UP Board. The name of ___X___ d/o ____X1____ and _____X2____ SC No.09/13 State vs. Shahnawaz Alam Page 10 of 27 _______appears at Serial No.0146264 of the tabulation register. The photostat copy of the said page was proved as Ex.PW12/A. He further deposed that as per the record brought by him the date of birth of ___X___ was 10.10.1993. In cross examination he admitted that tabulation register is maintained as per the record supplied by the concerned school. PW1 on 19.01.2012 told her age as 18 years and three months. There is no cross examination of prosecutrix regarding her date of birth. However, she was cross examined regarding age of her father, mother, sister and brother. PW3 proved statement of prosecutrix recorded u/s 164 Cr. P.C. In that statement prosecutrix told her age on the date of recording her statement as 17 ½ years. PW10 on this aspect deposed that date of birth certificate of victim ___X___ was Ex.PW10/M and as per certificate, date of birth of ___X___ was 10.10.1993. PW12 proved a document of Madhyamik Shiksha Parishad, Kendriya Karyalaya, Meerut, U.P., as Ex.PW12/A. On perusal of document Ex.PW12/A, I find that her date of birth has been mentioned as 10.10.1993. High School Examination Certificate of the prosecutrix has been proved as Ex.PW10/M. According to this document, date of birth of the prosecutrix is 10.10.1993. The date of occurrence is 01.08.2011. On calculation the age of prosecutrix on the date of occurrence comes to 17 years 9 SC No.09/13 State vs. Shahnawaz Alam Page 11 of 27 months and three days. Although in cross examination the prosecutrix admitted that she did not have any proof of her date of birth issued by either MCD or hospital yet that will not provide any benefit to the accused as above mentioned two documents Ex.PW2/A and Ex.PW10/M have abundantly proved the age of the prosecutrix. Consequently, it is held that the prosecutrix was a minor as she was less than 18 years of age on the date of occurrence.
Enticed or taking away of the prosecutrix out of keeping of her lawful guardianship
20. PW1 on this aspect deposed that on 01.08.2011 she was talking on phone with accused Shahnawaz in the night. Accused asked her to come down stating that he had some work with her. At that time, her other family members were sleeping. She went down after opening the door. Thereafter, accused Shahnawaz caught hold her with her hand and got her boarded into an auto and took her to Nangloi where his brother namely Sonu was residing and kept her there for six days. In cross examination, she stated that the telephone from which she used to make call to the accused Shahnawaz was given to her by him and that was given to her as a gift without any reason. She also stated when she went downstairs accused Shahnawaz and SC No.09/13 State vs. Shahnawaz Alam Page 12 of 27 one TSR driver were present there. She made alarm when TSR moved from there. She did not try to get the TSR stopped while raising alarm as her mouth was gaged by the accused through out the way. She did not make hue and cry at the Railway Station. No police official was present there. She did not raise any hue and cry in the train. She did not see any police official in the compartment. She told to the police at Patna Bihar when accused went to use toilet. In the statement recorded u/s 164 of the Code, she, inter-alia, stated that when she came down after opening the door Shahnawaz caught hold her hand and got her boarded in the auto and took her to Nangloi where his brother used to reside. PW5 on this aspect deposed that prosecutrix, his sister in law used to reside with his wife since three months prior to the incident. On 01.08.2011 at about 4 a.m., the prosecutrix aged 17 years and 9 months was found missing from the house. He made inquiry and searched her but she could not be searched. He raised suspicion upon accused Shahnawaz present in the court that he enticed away prosecutrix, his sister in law. He lodged complaint Ex.PW5/A. PW9 deposed that on 14.08.2011 he was posted as constable at P.S. Nand Nagri. On that day an information was received regarding prosecutrix and Shahnawaz and on receipt of an information DD No.9A copy of which is SC No.09/13 State vs. Shahnawaz Alam Page 13 of 27 Ex.PW9/A was recorded. He alongwith W/HC Ranjeeta and IO reached at Anand Vihar Railway Station from where prosecutrix was recovered. Recovery memo Ex.PW4/A was prepared. Accused Shahnawaz Alam present in the court was also arrested from there vide arrest memo Ex.PW5/B and personal search memo Ex.PW5/C. Like is the statement of PW10 SI Gopi Chand.
21. The accused in his statement recorded u/s 313 of the Code admitted that he was residing in the neighbourhood of the prosecutrix on 01.08.2011. He also admitted that on 07.08.2011 he took PW1 to Bihar and they reached at Bihar on 09.08.2011. He also admitted that he was arrested. The evidence on record coupled with the statement of accused has proved that accused Shahnawaz enticed the prosecutrix and took her away out of the keeping of her lawful guardianship.
As the prosecution has proved on record beyond reasonable suspicion and shadow of doubt that accused enticed or took away the prosecutrix who was minor, therefore, it stands proved on record that accused committed the offence of kidnapping from lawful guardianship defined u/s 361 IPC and punishable u/s 363 IPC.
SC No.09/13 State vs. Shahnawaz Alam Page 14 of 27Kidnapping or abducting of the prosecutrix by the accused with the intention that prosecutrix may be seduced to illicit intercourse
22. Evidence in respect of kidnapping has already been discussed here in above. On the aspect of forcing her or seducing her to do illicit intercourse, PW1, inter alia, deposed that accused Shahnawaz caught hold her and got her boarded into TSR and took her to Nangloi where his brother Sonu was residing and kept her there for six days. He told his brother Sonu that he had brought her there after performing marriage and he had also told that her parents were ready for that. Accused Shahnawaz committed rape upon her without her consent. PW2 on this aspect deposed that on 14.08.2011 he was working as Sr. Resident in GTB Hospital Delhi. On that day she had examined ______X_______ 17 years of age brought by lady Ct. Ranjeeta with alleged history of being kidnapped and raped by accused Shahnawaz, her neighbour on 01.08.2011 and she was forcibly taken to Nangloi and was kept in captivity till 06.08.2011 and thereafter, she was taken to Bihar where she was found by police on 09.08.2011. She proved her MLC as Ex.PW2/A. In cross examination, she stated that only positive examination finding was that the hymen was found torn which was corresponding to her statement. Lady HC Ranjeeta, inter-
SC No.09/13 State vs. Shahnawaz Alam Page 15 of 27alia, stated that prosecutrix and accused both were recovered and recovery memo Ex.PW4/A was prepared. Medical examination of victim was got done by a doctor by her at GTB Hospital. PW9 and PW10 also corroborated her statement. PW2 IO also stated that prosecutrix was got medically examined through lady Ct. Ranjeeta in GTB Hospital vide MLC Ex.PW2/A and as per MLC hymen was found torn.
Evidence on record and particularly discussed here in above has established that accused kidnapped the prosecutrix with the intention that the prosecutrix may be compelled or may be forced to do illicit intercourse.
Sexual intercourse was committed with the prosecutrix by the accused
23. PW1, the prosecutrix, inter alia, stated that after enticing her, accused took her in a TSR, to Nangloi to the house of his brother Sonu. Accused Shahnawaz committed rape upon her without her consent. Evidence in detail on this aspect has already been discussed here in above. Same is not being repeated to avoid repetition. PW2, as per the evidence discussed here in above has also stated that she had examined prosecutrix vide MLC Ex.PW2/A and her hymen was found torn. PW3 has proved statement u/s 164 of the Code Ex.PW1/A in which she specifically stated SC No.09/13 State vs. Shahnawaz Alam Page 16 of 27 that accused Shahnawaz not only misbehaved with her but also committed rape upon her on 1st, 2nd and after few days again on date 06.08.2011. PW5 in her statement, inter alia, stated that on missing of his sister in law he reported the matter to police on the basis of which FIR of present case was recorded and at her pointing out accused was arrested and prosecutrix was recovered from his company at Anand Vihar Railway Station. PW6, inter alia, deposed that she got the statement of prosecutrix u/s 164 of the Code recorded by Ld. M.M. PW10 also corroborated the prosecution case and statement of prosecutrix on the aspect of reporting of case by brother in law of prosecutrix, arrest of accused and recovery of prosecutrix from his company, preparation of arrest memo, examination of accused in the hospital, handing over of exhibits by doctor, depositing of the same in malkhana, sending them to FSL and obtaining result from FSL Ex.PW10/C and Ex.PW10/L. PW14, inter alia, stated that on 14.08.2011 Mohd. Shahnawaz was brought in the hospital for his medical examination by Ct. Ram Kishan with the alleged history of sexual assault on 07.08.2011. After his medical examination in detail he had given his opinion that there was nothing to suggest that Shahnawaz Alam was not capable to perform sexual intercourse. Blood sample, semen sample, underwear were seized and handed over to police. He proved MLC SC No.09/13 State vs. Shahnawaz Alam Page 17 of 27 Ex.PW9/A. PW15 proved biological and serological report Ex.PW10/A and Ex.PW10/L. The evidence on record and particularly discussed here in above has established that he was the accused Shahnawaz who committed sexual intercourse with the prosecutrix forcibly.
Sexual intercourse was committed on prosecutrix by the accused without her consent
24. Ld. Defence Counsel during his arguments highlighted some portions of the cross examination of prosecutrix in which she stated that she had made friendship with the accused in the year 2011. The mobile phone was given to her by accused. She did not know as to when accused Shahnawaz had given his telephone to her. She used to talk with the accused Shahnawaz regarding her love with him in the absence of her sister and brother in law. She used to keep mobile phone in the Almira. She was free to talk with accused at any time. Accused Shahnawaz and she used to live in the same house in different rooms. She used to stay with her sister and brother in law (Jija) and accused used to reside with other tenants including Ishtiyaqe, etc. The address of the lane i.e. D-43, School Block, Nathu Colony, Nand Nagri, Delhi was about 6 ft. Main road was at a distance of two minutes walk. She did not open the door of her room as on that SC No.09/13 State vs. Shahnawaz Alam Page 18 of 27 date room was not bolted from inside. Door of stairs used to be closed at 10-11 p.m. She did not raise alarm after getting down from the TSR. She did not raise hue and cry at the Railway Station and in the railway compartment.
25. I have considered these admissions of the prosecutrix but in my view these are not going to help the accused. Conversely, the evidence on record and particularly discussed here in above has proved beyond suspicion and reasonable doubt, commission of offence of kidnapping from lawful guardianship, kidnapping or inducing a woman to compel her marriage, etc. and commission of rape. The reasons which support my decision are firstly, that as per discussion made here in above, the prosecution has proved all the necessary ingredients for these offences.
26. Secondly, it has been proved on record that the prosecutrix was a minor i.e. less than 18 years of age at the time of occurrence of the offence. Therefore, even if it is presumed for the sake of arguments that prosecutrix willingly accompanied the accused, it will not provide any benefit to the accused as the prosecutrix was a minor on the date of occurrence.
SC No.09/13 State vs. Shahnawaz Alam Page 19 of 2727. Thirdly, the evidence on record, i.e. the portion of evidence of the prosecutrix in which she stated that mobile phone was given to her by the accused is a clear instance of enticing her. Besides, the prosecutrix has given convincing reason for not raising alarm till the incident was reported to the Bihar police on 09.08.2011. There is no evidence on record that the prosecutrix was given freedom to accompany or not to accompany the accused. The evidence has established that when she got down from her house she was made to board the TSR. It is not a case of accused that before taking her away she consented and she herself opted to go with the accused. She has further given convincing reason not to raise alarm during the way. She told that her mouth was gaged and she was not able to raise alarm. She did not raise alarm at the railway station or compartment or any other place as she did not found presence of police. When she happened to see the police at Bihar and she had an opportunity, she immediately informed the police that accused was taking her forcibly. These portions of her evidence have clearly established that she was not a consenting party to accompany with the accused. Rather, the evidence has established that it is a clear case of betrayal of friendship which she developed with accused during past three months from the date of incident.
SC No.09/13 State vs. Shahnawaz Alam Page 20 of 2728. Fourthly, the principles of law laid down in case Bhagwan Singh & Ors. v. State and Anr., (supra), relied on by Ld. Defence Counsel, will not provide any benefit to the accused as facts of present case and that case are quiet different. In that case the prosecutrix was a married girl and the accused was her husband. Like are not the facts of present case. The principles of law laid down in Mahabir v. State (Delhi), (supra), relied on by Ld. Defence Counsel, also will not provide any benefit to the accused as in that case prosecutrix indulged in sexual intercourse with the accused with her consent and she moved at various places with the accused. The facts of present case are different. The principles of law laid down in Om Prakash v. State of Haryana, (supra), relied on by Ld. Defence Counsel, will also not provide any benefit to the accused as in that case the age of prosecutrix was over 18 years and she was going to various places with the accused and she was willing party to the whole affairs. The principles of law laid down in Jinish Lal Shah v. State of Bihar, (supra), relied on by Ld. Defence Counsel, will also not provide any benefit to the accused as in that case prosecution has failed to establish that prosecutrix was below 18 years of age and the prosecutrix had willingly went with the accused. Similar are not the facts of the present case.
SC No.09/13 State vs. Shahnawaz Alam Page 21 of 2729. Fifthly, I find the testimony of prosecutrix and other witnesses consistent, reliable and trustworthy. There is no material contradictions which could create any reasonable suspicion and shadow of doubt in the genuineness of the prosecution case.
30. Sixthly, the other documentary evidence has also supported the prosecution case, e.g. Ex.PW10/H and Ex. PW10/J-1 to Ex. PW10/J-5, are the copies of CDR showing the conversation between the accused and the prosecutrix. Even otherwise accused in his statement recorded u/s 313 of the Code has, inter alia, admitted that prosecutrix was residing in his neighbourhood. He was arrested by the police. He was medically examined. Mobile phone bearing No.9289386316 belonged to him.
31. Seventhly, there is no evidence on record showing any motive or reason for the prosecutrix to depose falsely against the accused particularly when he was her neighbour and she developed friendship with him unless he had committed the alleged crimes. My view finds supports by a case Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (SC), 1983 A.I.R. (S.C.) 753, wherein the Apex Court observed:
SC No.09/13 State vs. Shahnawaz Alam Page 22 of 27"***Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites."
[Emphasis supplied]
32. Lastly, it is not only the duty of the judge to see that one innocent person should not be punished even if hundred offenders are allowed to go scot-free but also he has to see that the accused who has committed the crime must not go unpunished. It is also duty of the court to separate the grain from the chaff as held in case of Bhagwan Dass vs. State (NCT of Delhi), (2011) 6 SCC 396. While considering and analyzing entire prosecution evidence this court has come to the conclusion that all the oral, circumstantial and scientific evidence has proved that the accused Shahnawaz Alam committed offence of kidnapping from lawful guardianship, kidnapping or inducing a woman to compel her marriage, etc. and committed sexual intercourse with the prosecutrix forcibly against her will. Therefore, it is bounden duty of this court to held the accused guilty and convict him.
SC No.09/13 State vs. Shahnawaz Alam Page 23 of 27CONCLUSION
33. In view of the above reasons, discussion and evidence on record and particularly discussed here in above, it is held that the prosecution has successfully proved its case against the accused Shahnawaz Alam beyond any reasonable suspicion or shadow of doubt that accused enticed or took away the prosecutrix who was a minor girl, less than 18 years of age on the date of incident out of keeping of her lawful guardianship without the consent of her guardian/complainant i.e. brother in law and sister and committed sexual intercourse with her forcibly against her will. Thus, the accused committed offence of kidnapping the prosecutrix from her lawful guardianship, forced and seduced her to illicit intercourse and committed sexual intercourse with prosecutrix forcibly and repeatedly without her will and against her consent. Consequently, accused is held guilty and convicted for the offence of kidnapping from lawful guardianship, offence of kidnapping/abducting/inducing woman to compel marriage, etc. and offence of rape punishable u/s 363/366/376 IPC, respectively.
Announced in the Open Court Dated:11.02.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.09/13 State vs. Shahnawaz Alam Page 24 of 27 IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT) KARKARDOOMA COURTS, SHAHDARA, DELHI SC No.09/13 State vs. Shahnawaz Alam FIR No.322/11 PS Nand Nagri State Versus Shahnawaz Alam ORDER ON SENTENCE 14.02.2013 Present: Ms. Madhu Arora Addl. P.P. for the State.
Convict/accused in J.C. Sh. D.K. Singh Advocate for the convict/accused.
I have heard arguments on the quantum of sentence.
2. It has been argued on behalf of Ld. Defence Counsel that accused/convict is a young boy of 21 years of age at the time of commission of alleged crime; he is the only bread earner in the family; and he has no previous criminal record. It has been prayed that lenient view in sentence may be taken considering the re-formative theory of punishment.
3. On the other hand, it has been argued on behalf of Ld. Additional Public Prosecutor that deterrent punishment may be awarded to the accused keeping in SC No.09/13 State vs. Shahnawaz Alam Page 25 of 27 view that he had committed rape on the prosecutrix who was minor.
4. Keeping in view the submissions and all relevant factors and circumstances in which the accused committed crime, it would be just and appropriate if deterrent view in sentence is taken. Accordingly, convict/accused Shahnawaz Alam is sentenced to undergo rigorous imprisonment for 5 years and he is further sentenced to pay a fine of Rs.5,000/- in default simple imprisonment for one year for the offence punishable under section 363 IPC.
5. Convict/accused Shahnawaz Alam is sentenced to undergo rigorous imprisonment for 7 years and he is further sentenced to pay a fine of Rs.7,000/- in default simple imprisonment for one year and three months for the offence punishable under section 366 IPC.
6. Convict/accused Shahnawaz Alam is sentenced to undergo rigorous imprisonment for 8 years and he is further sentenced to pay a fine of Rs.8,000/- in default simple imprisonment for one year and six months for the offence punishable under section 376 IPC.
7. All these sentences will run concurrently.
8. It is further ordered that if convict/accused Shahnawaz Alam has undergone any period in judicial custody, that period will be set off against the sentence as SC No.09/13 State vs. Shahnawaz Alam Page 26 of 27 provided U/s 428 Cr. P.C.
9. Out of the fine amount, and after expiration of the period of appeal, a sum of Rs.10,000/- be paid to the prosecutrix as compensation. Besides this compensation, she will also be entitled to get other compensation if available to her under other laws.
10. The convict/accused Shahnawaz Alam be sent to imprisonment to serve the sentence.
11. A copy each of judgment and order on sentence is supplied to convict/accused Shahnawaz Alam free of cost.
File be consigned to Record Room.
Announced in the Open Court Dated:14.02.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.09/13 State vs. Shahnawaz Alam Page 27 of 27