Delhi District Court
Sc No. 16/15 State vs Mahidul Page No. 1 Of 14 on 29 May, 2015
IN THE COURT OF ADDITIONAL SESSIONS JUDGE01 : SED:
DESIGNATED JUDGE: TADA/POTA/MCOCA/POCSO:
SAKET COURTS: NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
CASE ID NO. 02406R0376942014
SESSIONS CASE NO. 16/15
FIR NO. 582/12
POLICE STATION : GOVINDPURI
UNDER SECTION : 363/376/506/174A IPC
STATE
VERSUS
MAHIDUL
S/O MESSAR ALI,
R/O JHUGGI NO. 41, KAUA MOHALLA,
TUGLAKABAD EXTENSION, NEW DELHI.
DATE OF INSTITUTION : 16.07.2014.
DATE OF RESERVING ORDER : 23.05.2015.
DATE OF DECISION : 29.05.2015.
J U D G M E N T
Case of Prosecution:
1. Brief facts of the case of the prosecution are that on 30.10.2012 complainant Mandakini W/o Sh. Vimal Bishwas came to police station and gave complaint regarding kidnapping of her daughter 'R' (name withheld to keep her identity confidential). She in her statement stated that she is working in kothies. On 29.10.2012 when she SC No. 16/15 State Vs Mahidul Page No. 1 of 14 returned from her work she did not find her daughter 'R'. She enquired from neighbours but her daughter could not be found. She made suspicion on some unknown person. On the complaint of complainant, case was registered. WT messages were flashed, information was given on 100 number. On receiving secret information, SI Shri Krishna with team members went to Assam where they recovered victim from the village of accused. SI Madhu Sharma along with prosecutrix 'G' came to Delhi and and victim 'G' was medically examined at AIIMS Hospital where victim 'G' refused for under medical examination. Prosecutrix was lodged in Prayas. On 02.03.2013 statement of prosecutrix under Section 164 Cr.P.C was got recorded. On 04.03.2014 victim 'G' was produced before the CWC, Lajpat Nagar from where she was handed over to her parents. Accused was searched but could not be found. NBWs against the accused and thereafter process under Section 82/83 Cr.P.C were issued. Accused was declared proclaimed offender from the court of Ms. Anu Aggarwal, Metropolitan Magistrate. On 30.12.2014 accused Mahidul was produced before the concerned MM after fresh arrest under Section
41.(1) (c) Cr.P.C. Thereafter, statement of witnesses were got recorded by the Investigating officer and after completion of investigation, charge sheet under Section 363/376/506/174A IPC was filed against the accused in the court.
2. Since the offence under Section 376 IPC is exclusively triable by the court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions. Charge against the accused: SC No. 16/15 State Vs Mahidul Page No. 2 of 14
3. Prima facie case under section 363/366/376/174A IPC was made out against the accused. Charge under Section 363/366/376/174A IPC was framed upon the accused to which he pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined two witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under:
5. PW1 is prosecutrix 'G' who had deposed that at the time of incident she was studying in Sarvodaya Kanya Vidyalaya in Tuglakabad Village. She knows Mahidul who was residing in her neighbourhood. She does not remember the date, the date is mentioned in the complaint lodged by her mother. On the said date, she had gone with Mahidul to Assam without informing her parents. They had not performed marriage. Her parents had taken the police and brought them back to Delhi. Mahidul had not done any wrong act with her. She was taken to AIIMS Hospital by the police for her medical examination however she refused for the same. She has proved on record her thumb impression on the MLC Ex.PW1/A. She has stated that she was lodged in CWC by the police for two days where her parents have taken her custody. She was brought to the court by the police where her statement was recorded under section 164 Cr.P.C carbon copy of which is Ex.PW1/B. Witness has correctly identified the accused through video link on the screen. During examination witness turned hostile. Ld. Addl. PP for the state has cross examined the witness but nothing material has come on record in the SC No. 16/15 State Vs Mahidul Page No. 3 of 14 cross examination.
6. PW2 is Ms. Mandakini Biswas who had deposed that when she returned to her house after performing her duties she found that her daughter 'G' aged around 18 years was missing. She tried to search her daughter 'G' but she could not be found and as such she lodged the complaint to the police Ex.PW2/A. After around two months, her daughter returned to her house along with accused Mahidul. Police took her daughter to the hospital but her daughter refused for medical examination. Her statement was got recorded by the police u/s 164 Cr.P.C. Thereafter, her daughter was lodged in CWC from where they took custody after two days. Witness correctly identified the accused Mahidul in the court. During examination witness turned hostile. Ld. Addl. PP for the state has cross examined the witness but nothing material has come on record in the cross examination.
7. After examination of PW2, accused had moved an application pleading guilty and his statement to this effect was recorded separately. At the request of the Ld. APP for the state prosecution evidence was closed. Arguments heard from both sides. Conclusion:
8. Before appreciating the facts of this case, it is necessary to know the ingredients of the offence by resorting to the provisions of sec.375 read with sec.376 IPC. Section 375 Rape provides: " A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: SC No. 16/15 State Vs Mahidul Page No. 4 of 14 First Against her will.
Secondly Without her consent.
Thirdly With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly With or without her consent, when she under sixteen years of age.
Explanation Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
9. "Rape" is the act of physically forcing a woman to have sexual intercourse: an act of sexual intercourse that is forced upon a woman against her will. "Statutory rape" is a sexual intercourse with a girl under the age of consent, which age varies in different States from ten to eighteen years.
10. The offence of rape in its simplest term is 'the ravishment of SC No. 16/15 State Vs Mahidul Page No. 5 of 14 a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. lett. 123b); or as expressed more fully, 'rape' is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section requires the essentials:
1. Sexual intercourse by a man with woman.
2. The sexual intercourse must be under circumstances falling under any of the six clauses in Section 375 IPC.
11. In MANU/SC/7825/2008 Moti Lal Vs. State of M.P., the Apex Court had observed that : "a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The court, therefore, shoulders a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. 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 prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. "
12. The two issues to be determined on the basis of evidence adduced by the prosecution are the age of the prosecutrix and whether the prosecutrix was a consenting party or not.
SC No. 16/15 State Vs Mahidul Page No. 6 of 14Age of the prosecutrix:
13. As per the case of the prosecution, the prosecutrix was aged around 13 years when the accused had kidnapped her and raped her. However, the prosecutrix and her mother PW2 both have stated that prosecutrix was aged around 18 years on the date of offence. Ld. Addl. PP for the state has argued that to prove the age of the prosecutrix, prosecution has relied upon the school record of the prosecutrix. The record is not proved because the accused had moved an application pleading guilty to the offence and that is why the prosecution has closed its evidence and as per the school record the date of birth of the prosecutrix is 18.03.2000. It is stated that there is nothing to doubt the authenticity of the school records as the age was got registered in the school records by the father of the prosecutrix. On the other hand, Ld. Counsel for accused has stated that school record should not be given any weight in view of the testimony of the prosecutrix and her mother given in the court. It is settled law that for proving the age of the child school records are most authentic document as per Section 7 of Juvenile Justice Act r.w. Rule 12 of Juvenile Justice Rules which is equally applicable to accused as well as to victim in view of law laid down by Hon'ble Apex Court in Jarnail Singh Vs State of Haryana Crl. A. No. 1289/2010 decided on 01.07.2013. The date of birth of the prosecutrix was got recorded by the father of the prosecutrix much prior to lodging this FIR. There is nothing to doubt the authenticity of this school record moreso when the accused had himself pleaded guilty due to which the prosecution has not proved this document i.e. school record. Further, SC No. 16/15 State Vs Mahidul Page No. 7 of 14 PW2/mother of the prosecutrix has stated that her husband had got recorded the date of birth of the prosecutrix in the school records. Hence, as they are not the author of birth record, the statement of the prosecutrix and her mother cannot doubt the authenticity of the school records moreso when neither the prosecutrix nor her mother had specifically deposed about the date of birth of prosecutrix in their examination in chief or cross examination. In view of these circumstances and the fact that both the witnesses have turned hostile and tried to favour the accused, the genuineness of the school record cannot be doubted. Even otherwise while deciding this case unlike civil/service matters this court is not required to conduct a roving/detailed enquiry with regard to the correctness of date of birth of prosecutrix in school record. Reference can be had to Ashwani Kumar Saxena Vs State of Madhya Pradesh, (2012) 9 Supreme Court wherein it is held by the Apex Court that: "Age determination inquiry" contemplated under section 7A of the JJ Act read with rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, does the court need to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical SC No. 16/15 State Vs Mahidul Page No. 8 of 14 opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.
Once the court, following the abovementioned procedures, passes an order, that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in Rule 12(5) that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to Rule 12(3). Further, Section 49 of the JJ Act also draws a presumption of the age of the juvenility on its determination.
Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an inquiry under other legislations, like entry in service, retirement, promotion etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a corporation or a municipal authority or a panchayat may not be correct. But court, Juvenile Justice Board or a Child Welfare Committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those SC No. 16/15 State Vs Mahidul Page No. 9 of 14 documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the Child Welfare Committee need to go for medical report for age determination."
14. It is an admitted fact of PW1 that she has studied in the said school from where the school records were procured by the IO. Hence, if we go by the date of birth of the prosecutrix as recorded in the school records and the age given by her father, given to the doctor or even to the magistrate, it is proved that the prosecutrix was minor on the date of offence.
Consent of the prosecutrix or not :
15. So far as the offence of rape is concerned, the most material witness is the prosecutrix 'G' however, she categorically deposed in her statement before the court that the accused had not made any physical relations with her. She was turned hostile but nothing incriminating on this point can be extracted by the Ld. Addl. PP for the state in her cross examination. The medical examination is also refused by the prosecutrix and as such, it cannot lend any help to the court. In view of the statement of the prosecutrix that she has neither married the accused nor any physical relations were made between them, the offence of rape is not proved against the accused.
Offence of Kidnapping:
16. For the offence under section 363 of IPC, the prosecution has to prove the ingredients of the offence as mentioned in section 361 of IPC SC No. 16/15 State Vs Mahidul Page No. 10 of 14 i.e.:
i) taking or enticing a minor girl under 18 years of age,
ii) Out of the keeping of lawful guardian of such minor,
iii) without their consent.
Offence under section 366 IPC:
17. For proving the offence under section 366 IPC the prosecution has to prove the following ingredients. The essential ingredients of section 366 of IPC are :
(a) A person kidnaps or abducts any woman.
(b) The act is done
(i) with intent that she may be compelled to marry any person against her will, or
(ii) knowing it to be likely that she will be so compelled, or
(iii) in order that she may be forced or seduced to illicit intercourse, or
(iv) knowing it to be likely that she will be so forced or seduced.
18. The prosecutrix has stated that she had gone with the accused to Assam without informing her parents. In her cross examination by the Ld. Addl. PP she has stated that the accused had taken her after giving some stupefying substance to her without her wishes. As per the prosecution story as well as statement of PW2 the prosecutrix returned to her house along with the accused after about two months. She was taken from Delhi to Assam and during this period of two months she remained with the accused. It is not her case that she ever tried to run SC No. 16/15 State Vs Mahidul Page No. 11 of 14 away. If the accused had taken her after giving some stupefying substance in Tea then she could have tried to escape from the clutches of the accused but no such statement is made by her. As per the statement of PW2/mother of the prosecutrix, after about two months her daughter returned with the accused Mahidul. The prosecutrix has given the statement to the police that she had gone with the accused with her own willingness since she had love affair with the accused and had also performed marriage with him though, these facts are denied by her in the court. Even to the magistrate the prosecutrix has made the similar statement that she had gone with the accused and performed marriage with him though she has denied this statement given to the magistrate in the court and had projected a new story that the accused had taken her after administering some stupefying substance to her mixed in Tea and she was taken by him to Assam against her wishes. As observed above the testimony of the prosecutrix coming for the first time on this count is not believable and trustworthy. Neither before the magistrate nor before the police she has ever stated that the accused had taken her forcibly. Her case throughout was that she had herself gone with the accused. The court is not oblivious of the situation where the girl left the house of their parents against their wishes and when she return in order to save the honour of the family or under pressure, they make false statement against the boy. The testimony of the prosecutrix is certainly contradictory to her earlier statement given to the magistrate or to the police. It is not believable that accused had forcibly taken her. It seems that she had herself gone with the accused to Assam willingly and stayed with the accused for two months.
SC No. 16/15 State Vs Mahidul Page No. 12 of 1419. Further, accused had himself admitted in his statement before the court while moving the application pleading guilty that the prosecutrix had gone with him. Mother of prosecutrix has not stated that prosecutrix had gone with accused with her consent. As discussed above that prosecutrix was minor child on date of offence and in view of settled law that consent of a minor child is not material, it is proved that accused had taken the prosecutrix out of the keeping of the lawful guardianship without the consent of the parents of the prosecutrix. Defence of the accused:
20. In his defence the accused has stated that he had taken the prosecutrix to Assam as the complainant had herself sent the prosecutrix with him. If this would have been the position, there was no occasion for the mother of the prosecutrix/complainant herein to lodge a missing report with the police. No such suggestion was even put to the complainant/mother of the prosecutrix/PW2 in his cross examination from the side of accused nor any witness is produced by the accused and as such it is not believable that the prosecutrix was sent by the complainant to Assam. In her statement before the court the complainant has proved her complaint of missing of prosecutrix. Hence, in view of voluntarily plea of guilt coupled with the statement of prosecutrix and her mother it is proved that the accused had taken the prosecutrix out of the lawful guardianship of her parents without their consent with the intention of performing marriage with her or to make physical relations with her. Hence, offence under Section 363/366 IPC are proved against the accused.
SC No. 16/15 State Vs Mahidul Page No. 13 of 14Offence under Section 174A IPC:
21. So far as this offence is concerned though the prosecution has not produced any evidence to prove proceedings under Section 82 Cr.P.C but since the accused has pleaded guilty whereupon the prosecution has chose to close its evidence and he has not challenged and has not stated anything with regard to this offence and it is a factual position that accused was earlier declared proclaimed offender (PO) in this case and was later on arrested and produced before this court, the prosecution has proved that despite issuance of proclamation the accused has failed to appear in the proceedings under Section 82 Cr.P.C. and as such he was declared proclaimed offender on 30.05.2014. Accordingly offence under Section 174A IPC is proved against the accused.
22. In view of the above said facts and circumstances, accused is held guilty and convicted for the offence under Section 363/366/174A IPC. He is however acquitted of the offence under Section 376 IPC. ANNOUNCED IN THE OPEN COURT ON 29.05.2015.
( RENU BHATNAGAR ) DESIGNATED JUDGE TADA/POTA/MCOCA/POCSO ASJ01/SED/NEW DELHI SC No. 16/15 State Vs Mahidul Page No. 14 of 14