Delhi District Court
State vs . Naresh S/O Chunni Lal, R/O H.No. D-202, ... on 17 August, 2009
1
IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGE-VII/NE-CUM-
ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI :
S.C. No. 15/09
State Vs. Naresh S/o Chunni Lal, R/o H.No. D-202, New Seemapuri,
Delhi.
FIR No. 300/08
PS Seemapuri
U/s 363/366/376 IPC.
J U D G E M E N T :-
On 01.09.08 at about 4pm, Muzaira (name changed), daughter of Sitara Begum, went to Seemapuri, to fetch medicines for herself as she was not feeling well. When she did not return, her mother Sitara Begum searched for her hither and tither. She made every possible efforts to trace the girl, but to no avail. Ultimately, on 08.10.08 she went to PS Seemapuri and lodged her report. Her statement was recorded, wherein she raised an accusing finger on Rajesh, who used to reside as a tenant in her house, and his friend Naresh. Krishan Pal ASI took up the investigation. During the course of investigation, on an informant's tip, prosecutrix Muzaira was apprehended at the corner of a street of H.No. D-202, New Seemapuri, Delhi. She was sent to hospital for her medical examination. Her statement was also got recorded under section 164 Cr.P.C. When no incriminating material could be collected against Rajesh, he was set at liberty. However, incriminating material against accused Naresh were collected. He was arrested in the case. He was also got medically examined. Investigation culminated into a chargesheet against him.
2. Charge for offences punishable under sections 363, 366 and 376 IPC was framed against the accused, to which charge he pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Brijesh 2 Kumari, Constable (PW1), Chattar Singh, Constable (PW2), Sitara Begum (PW3), Ms. Sangeeta, TGT (PW4), Dr. Rashmi Varshney (PW5), Muzaira (PW6), Rajesh (PW7), Sh. Mukesh Kumar, MM (PW8) and Krishan Pal ASI (PW9) in the case.
4. Brijesh Kumari, Constable (PW1) had joined investigation with ASI Krishan Pal on 09.10.08. On a secret informer's information, prosecutrix Muzaira was apprehended by her, while she was going towards D-202, New Seemapuri, Delhi. At about 7.30am, she took the prosecutrix for her medical examination at GTB Hospital. Chattar Singh, Constable (PW2) was posted at PS Seemapuri, Delhi. On 10.10.08, he along with ASI Krishan Pal arrested accused Naresh from H.No. D-202, New Seemapuri, Delhi. Accused was arrested vide arrest memo Ex.PW2/A and his personal search memo Ex.PW2/B was also prepared, unfolds the witness.
5. Sitara Begum (PW3) unfolds that her daughter Muzaira was a student of 9th standard at Govt. School, J&K Block. On 01.09.08 at about 4pm, Muzaira went outside her house to fetch medicine as she was unwell. When Muzaira did not return, she searched her here and there. Thereafter, she went to PS and police officials directed her to search the girl. She searched for her daughter in the near vicinity and also in her relations, but Muzaira was untraceable. She gave her complaint to higher police officials with regard to missing of her daughter. On 0810.08, her statement was recorded and case was registered. She raised suspicion on Rajesh and Naresh. Before two or three years, Rajesh used to reside as tenant in front of her house at the first floor and Naresh used to visit the room of Rajesh. Her daughter Muzaira Khatoon was 15 years of age at that time. On the following day, her daughter was recovered by police 3 officials. She was informed by police and visited the PS. Her daughter was produced before the Court and after recording her statement in the Court, she was released in her favour. She identified the accused as the person, who used to come at the room of Rajesh. She further unfolded that when her daughter was released to her, she narrated before her that she was sexually exploited by accused Naresh.
6. Ms. Sangeeta (PW4) entered the witness to prove that Muzaira was admitted in St. Eknath Sarvodaya Kanya Vidyalaya, J&K Block, dilshad Garden, Delhi, on 02.08.08 in 9th standard. An entry to this effect was recorded at Sr. No. 3323 of the admission register, photocopy of which was proved by her as Ex.PW4/A. Her date of birth was recorded as 18.03.93, on the basis of school leaving certificate issued by Govt. Girls Sr. Secondary School No.3, Bholanath Nagar, Shahdara, Delhi. She also proved photocopy of school leaving certificate as Ex.PW4/B, besides photocopy of application filled by Sitara Begum and certificate issued by Smt. Kamla Nim, Principal, St. Eknath Sarvodaya Kanya Vidyalaya, Dilshad Garden, Delhi, as Ex.PW4/C and Ex.PW4/D respectively.
7. Dr. Rashmi Varshney (PW5) proved MLC of Muzaira as Ex.PW5/A, which was prepared by Dr. Nomita.
8. Muzaira (PW6) unfolded facts of the case. She deposed that she is a student of 9th standard in St. Eknath Sarvodaya Kanya Vidyalaya, J&K Block, Dilshad Garden, Delhi. Her date of birth is 18.03.93. Accused was known to her, since he used to visit her tenant Rajesh. Accused was working as a mobile repair mechanic. He was residing in D-Block, New Seemapuri, Delhi. On 01.09.08, Madhvi, sister of the accused, came to her house. On that day, she (prosecutrix) was down with fever. She had gone along with Madhvi to take medicines. When they were returning 4 home, then her sister Santosh met them. Santosh took her to the house of Madhvi, located in D-Block, New Seemapuri, Delhi. Madhvi gave a telephone call to the accused Naresh and called him at her residence. He came there in one hour. Naresh and his sisters summoned pepsi through some boy. They all consumed pepsi. She felt uneasy on consumption of pepsi. Accused and his sisters took her somewhere in an auto-rickshaw. She was kept in a house. He had coitus with her, against her will. She was kept by the accused in that house for about one month. He continued sexually exploiting her for that period of one month, against her will. During that period, she came to know that she was staying at the house of friend of accused, which was located in Buradi. She used to weep almost daily, requesting the accused that she wanted to go to her parental home. Friend of the accused and his family also used to reside in that house. After about a few days, they went to their native village. One day, she was weeping. Accused gave a telephone call to his friend Rajesh. Rajesh reached there. He told her that he would take her to meet her mother. Accused Naresh and Rajesh took her to Bhangi Colony, located at D-Block, New Seemapuri, Delhi. Rajesth left her there, along with accused. After sometime, Rajesh reached there, along with police. Police had overpowered her and the accused. She was kept in PS for a night. Next day, she was got medically examined. Thereafter, she was produced before a Magistrate, who recorded he statement, under section 164 Cr.P.C. She proved her said statement as Ex.PW6/A. Rajesh (PW7) gave confirmation to facts unfolded by Muzaira.
9. Sh. Mukesh Kumar, MM, (PW8) proved the application for recording statement of prosecutrix Muzaira under section 164 Cr.P.C. as Ex.PW8/A. He also proved his certificate given underneath said 5 statement as Ex.PW8/B. Krishan Pal ASI (PW9) conducted investigation of the case. He detailed those very investigative steps, which were taken by him. He concluded investigation and got the accused challaned.
10. In order to afford an opportunity to explain circumstances appearing in evidence against the accused, he was examined under section 313 Cr.P.C. He admits that Muzaira was a student of 9th standard in St. Eknath Sarvodaya Kanya Vidyalaya, J&K Block, Dilshad Garden, Delhi. He further admits that he was working as a mobile repair mechanic and was residing at D-Block, New Seemapuri, Delhi. He also admitted the fact that Rajesh was known to prosecutrix, as he used to visit him, who was residing as a tenant in front of house of Muzaira. He had also admitted the fact that police had raided many a times house of Rajesh in his own search. However, on the day of Dusshera Festival, he along with Muzaira reached house of Rajesh, from where they were taken by Rajesh to a house of his acquaintance, who was residing at H.No. D202, New Seemapuri, Delhi. He further admitted the fact that prosecutrix Muzaira was apprehended while going towards D-202, New Seemapuri, Delhi, by lady constable Brijesh Kumari. He claims that he has been falsely implicated in the case, since he did not bend to the demand raised by mother of Muzaira for marriage of her daughter with him.
11. Arguments were heard at the bar. Sh. Subhash Chauhan, ld. Prosecutor, presented facts on behalf of the State. Sh. S.A. Khan, Advocate, had advanced arguments on behalf of the defence. He had also filed written arguments in the case.
12. I have given my careful considerations to arguments advanced at the bar and cautiously perused the record. It was submitted by the ld. Counsel for the accused that prosecution has failed to establish its case 6 beyond reasonable doubt. He referred to testimony of PW(1) lady Constable Brijesh for submitting that according to this witness prosecutrix was recovered and overpowered by her at the corner of street, while she was going towards H.No. D-202, New Seemapuri, Delhi. Prosecutrix was recovered on 10.10.08, whereas it is the case of prosecution that prosecutrix was recovered on 09.10.08. He also challenged the testimony of complainant Sitara Begum for submitting that there is inordinate delay in lodging the FIR, which could not be satisfactorily explained. As regards testimony of Sangeeta, TGT, is concerned, it was submitted that she could not affirm or deny whether parents of prosecutrix minimized her age. Dr. Rashmi Varshney did not find any external mark of injury on the person of prosecutrix. As regards testimony of prosecutrix herself is concerned, it was submitted that she had not supported the case of prosecution in her statement recorded under section 164 Cr.P.C. However, in the Court she introduced a new and different story. Further more, despite request, ossification test of prosecutrix was not got done. As regards PW(7) Rajesh is concerned, it was submitted that in his statement before the police that he had nowhere stated that his sister-in-law (Bhabhi) and mother were detained by police and were released only when Naresh was arrested in the case. Reference was made to the testimony of IO ASI Kishan Pal for submitting that he had challaned the accused simply because of the fact that age of prosecutrix Muzaira was less, and as such proceedings were done by him in mechanical manner. According to him, accused has been falsely implicated by mother of prosecutrix, because he did not fulfill her desire to pay heavy amount to her for marrying him with her daughter. In support of his contentions, he has placed reliance on Jinish Lal Sah Vs. 7 State of Bihar, 2003 (1) JCC 273 ; Ashok Kumar Vs. State of Haryana, 2003 (1) JCC 276 ; Devanand Vs. State, 2002 (3) JCC 1665 ; Ashok Batra & Others Vs. The State (Delhi), 2002 (3) JCC 1667 ; Chidda Ram Vs. State, 1992 JCC 376 ; Ajit Singh V. Delhi Administration, Delhi, 1992 JCC 380 ; Dewan Singh Vs. The State, 1998 (2) JCC (Delhi) 122 and Madhuresh Vs. CBI, 1998 (2) JCC (Delhi) 127. On the other hand, it was submitted by ld. Prosecutor that there is no reason to disbelieve testimony of prosecutrix. Moreover, she was a minor as is evident from school leaving certificate, as such even it is assumed that she was a consenting party as per her statement under section 164 Cr.P.C, her consent is immaterial as she was not competent to consent for a coitus.
13. Testimonial potency of version of a victim of rape cannot be put on par with an accomplice. She is infact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must be attached in evaluation of her evidence as in the case of an injured complainant or a witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act, which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for corroboration 8 required in the case of an accomplice. The nature of evidence required in to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding, the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. Law to this effect was laid by the Apex Court in State of Maharashtra Vs. Chander Prakash Keval Chand Jain (1990 (1) SCC 550).
14. The Apex court in State of Punjab Vs. Gurmeet Singh (1996 (2) SCC
384) has held that no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as involved in the commission of rape on her. In cases involving sexual molestation supposed considerations, which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix, should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness and tendency to conceal outrage of sexual aggression are factors which the Court should not overlook. The testimony of the victim in such case is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Court should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable.
15. The Apex Court in State of U.P. Vs. Anil singh (AIR 1988 S.C. 1998) 9 concluded that with regard to the falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Apex Court sought reliance from Bankim Chander (AIR 1919 PC 157) wherein the Privy Council had ruled that in Indian litigation, it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly untrue, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence. It was announced by the Apex court that it is also our experience that invariably the witnesses add embroidery to prosecution evidence, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses.
16. Muzaira projects that she is a student of 9th standard in St. Eknath Sarvodaya Kanya vidyalaya, J&K Block, Dilshad Garden, Delhi. Her date of birth is 18.03.93. On 01.09.08, Madhvir, sister of accused, came to her house. On that day, she was down with fever. She had gone along with Madhvir to take medicines. When she and Madhvi were returning home, her sister Santosh met them. Santosh took me to the house of Madhvi, located in D-Block, New Seemapuri, Delhi. Madhvi gave a telephone call to accused Naresh and called him at her residence. Accused reached there in one hour. Accused and his sister summoned pepsi through some boy. They consumed pepsi. She felt uneasy on consumption of pepsi.
10 Thereafter, accused and his sister took her somewhere in an auto rickshaw. She was kept in a house. She was kept by the accused in that house for about one month. Later on, she came to know that she was staying at the house of his friend, which was located in Buradi. One day, accused and Rajesh took her to Bhangi Colony, located in D-Block, New Seemapuri, Delhi. Now question for consideration comes as to whether these facts answer ingredients of kidnapping defined in section 361 IPC. Said provision enacts that whoever takes or induces any minor under 16 years of age, if a male or under 18 years of age, if a female, or any person of unsound mind to go out of keeping of lawful guardian of such minor or person of unsound mind, without consent of such guardian, is said to have kidnapped such minor or person from lawful guardianship. Therefore, to attract provisions of section 361 IPC, following ingredients should be established:-
1. There must be taking or inducement of a minor or a person of unsound mind.
2. The minor must be under 16 years of age, if a male or under 18 years of age, if a female.
3. Taking or inducement must be out of keeping of lawful guardianship of minor or person of unsound mind.
4. Taking or inducement must be without consent of guardian of minor or person of unsound mind.
17. To constitute " taking" of a minor out of lawful guardianship of his/her parents, it is not necessary that it should be done by force. The work " take" means to cause to go, to escort, or to take into possession. For taking to be complete, it should be shown that the accused was instrumental in either counseling her to leave or helping her in leaving.
11 The prosecution has to prove that accused had played some active part in taking the girl from keeping of her lawful guardian's house and taking shelter in his house. The word " take" implies want of wish and absence of desire of the person taken. In order to constitute taking, it is necessary to make out that active part in going away was that of accused and not that of the girl. Factum, which would be and should be taken into consideration in deciding whether there has been taking in particular case, are conduct of the parties, particularly of the accused at the time and before their going away together, the maturity of the girl and her intellectual capacity to think for herself and to make up her mind and circumstances under which and the object for which she felt it necessary or worthwhile to leave her guardian's protection. Here in the case, it has been testified by prosecutrix Muzaira that On 01.09.08, Madhvi, sister of the accused, came to her house. On that day, she (prosecutrix) was down with fever. She had gone along with Madhvi to take medicines. When they were returning home, then her sister Sanotsh met them. Santosh took her to the house of Madhvi, located in D-Block, New Seemapuri, Delhi. Madhvi gave a telephone call to the accused Naresh and called him at her residence. He came there in one hour. Naresh and his sisters summoned pepsi through some boy. They all consumed pepsi. She felt uneasy on consumption of pepsi. Accused and his sisters took her somewhere in an auto-rickshaw. She was kept by accused in the house of his friend for one month. Thereafter, she was taken to Bhangi colony, D-Block, New Seemapuri, Delhi. These facts are sufficient to prove that Muzaira was taken by accused Naresh.
18. Sitara Begum detailed that on 01.09.08 at about 4pm, Muzaira went outside her house to fetch medicine as she was unwell. When Muzaira 12 did not return, she lodged her report with police. Muzaira had also narrated that she had gone to outside her house to fetch medicine as she was down with fever. Thereafter, accused took her in a house of his friend and kept her there for a month. Question for consideration comes as to whether Muzaira was in the keeping of her mother, when she went outside her house to fetch medicine. The word " keeping" is a word of wide importance and would cover a case, where a minor is merely in protection or care of guardian or depends upon him for his or her maintenance, support or sustenance whenever necessity arises. The tie cannot, therefore, cannot be dissolved suddenly on the guardian being struck with some infirmity or disease. A classic example of this situation is available in the precedent of Bishweshwar Mishra (AIR 1949 Orissa
22) wherein prosecutrix was a married girl below 16 years of age, who was living with her husband. There was a quarrel between them on certain date and resultant of that quarrel, the girl left her husband's house on the morning of next date. She boarded a bus that morning with the idea of taking temporary shelter with her maternal uncle. On the way, she was taken by the accused to his house. During her stay, accused attempted to seduce her by making immoral overtures. However, she did not care. Her evidence was that when she left her husband's house, she left temporarily on account of anger and she did not intend to leave it for good. It was held that despite the fact that she voluntarily came out of her husband's house, she continued the fact that she voluntarily came out of her husband's house, she continued to be in keeping of her husband all along and that keeping has not been abandoned by her.
19. Here in the case, when Muzaira went outside her house to fetch medicine, she had not abandoned keeping of her mother. Thereafter, 13 she was taken away by accused to the house of his friend, where she was kept for a month. From there, she was also taken to Bhangi Colony, D-Block, New Seemapuri, Delhi, by the accused. Consequently, it is apparent that mother of prosecutrix Muzaira had not consented for taking of Muzaira either to the house of friend of accused or to Bhangi Colony, D-Block, New Seemapuri, Delhi. Evidently, it was he accused who had taken away prosecutrix Muzaira with him to aforesaid places, without the consent of her mother.
20. As regards age of prosecutrix is concerned, her mother Sitara Begum had lodged the complaint with police, where she had given her age as 15 years. PW(4) Sangeeta, TGT, deposed that Kumari Muzaira, daughter of Qazi Shadi Ahmed, was admitted in 9th standard of St. Eknath Sarvodaya Kanya Vidayalaya, J&K Block, Dilshad Garden, Delhi, on 02.08.08. Her date of birth was recorded as 18.03.93, on the basis of her school leaving certificate, issued by Govt. Girls Sr. Secondary School No.3, Bholanath Nagar, Shahdara, Delhi. She proved photocopy of admission register as Ex.PW4/A, besides photocopy of school leaving certificate as Ex.PW4/B and photocopy of application filled in by Sitara Begim as Ex.PW4/C. She also proved certificate issued by Smt. Kamla Nim, Principal of St. Eknath SKV, Dilshad Garden, as Ex.PW4/D. Although, it is correct that witness was not even in a position to affirm or deny that parents of prosecutrix minimized age of prosecutrix at the time of her admission in the school, however, she had stated that she taught Muzaira and categorically denied that on 30.08.08, prosecutrix Muzaira was above 16 years of age. It is pertinent to note that the best persons to depose on the fact as to whether age of prosecutrix was minimized are parents of prosecutrix. However, mother of prosecutrix was given no suggestion to this effect 14 that she had understated the age of her daughter, when she was got admitted in the school. Prosecutrix herself had deposed that she was a student of 9th standard, when was admitted in St. Eknath Sarvodaya Kanya Vidyalaya, Dilshad Garden, Delhi and her date of birth was recorded as 18.03.93. No suggestion was given to this witness that date of birth as deposed by her is not her correct date of birth. Rather, reliance is placed by ld. Counsel for the accused on the age given by prosecutrix before doctor as well as before ld. Magistrate, who recorded her statement under section 164 Cr.P.C. In this regard, it may be mentioned that sufficient explanation has been given by the prosecutrix as to under what circumstances, she was medically examined and her statement under section 164 Cr.P.C. was recorded, inasmuch as she has deposed that when she was taken for her medical examination to GTB Hospital, she refused to get herself medically examined at the instance of her parents. When she had come to make statement before ld. Magistrate, mother and sister of the accused had asked her in police station to make a statement in favour of the accused and accordingly, she gave statement Ex.PW6/A in favour of the accused. The factum that this statement was made by her under influence of mother and sister of the accused is fortified by the fact that as per school certificate, her date of birth is 18.03.93. However, before the ld. Magistrate, she gave her date of birth as 18.03.90.
21. The Education Code enjoins upon the Head Master of a school to prepare and maintain an admission register of the pupils admitted to that school. Of the several particulars to be entered in such a register, the date of birth of the pupils as stated by the parents or guardian is an important item. There can be no doubt that the admission register is a 15 public record maintained by the head of the institution, who is duty bound to maintain such a register containing certain particulars relating to each pupil as required by the Education Code. In making such entries in the admission register the head of the institution, who is a public servant, is merely discharging his official duty. The entry, thus made in an official record, has to be presumed to be correct in the absence of other reliable evidence to the contrary. Reference can be made to Bhim Mandal (AIR 1961 Pat. 21) and Mohd. Ikram Hussain (AIR 1964 S.C. 1625).
22. Whether a school certificate is admissible in evidence, is a question which confronts us. In Ram Murti Vs. State of Haryana, AIR 1970 SC 1092, the Apex Court was confronted with a question as to whether an unproved and unexhibited school certificate, which appears to have been obtained by the investigating officer, could be treated as evidence in the case. It was held that in the High Court it was not appreciated that unproved and unexhibited school certificate could not be treated as evidence in the case. In the said case, the Trial Court relied the school leaving certificate, wherein the date of birth of the prosecutrix was detailed, without formal proof of the document. Without commenting anything on the evidentiary value of school leaving certificate, the Apex Court denounced it from the consideration of the case, since it was not proved in accordance with law. In Harpal Singh (Cr.L.J. 1) the Apex Court has declared that the certified copy of an entry in admission register maintained at Govt. Girl School was admissible under section 35 of the Evidence Act.
23. The above proposition of law was reiterated by the Apex Court in Umesh Chand (1982 Cr.L.J. 1994), wherein it was held that two 16 documents of two different school, showing age of the child, were admissible under section 35 of the Evidence Act. Justice Fajal Ali Spoke for the Court thus :- " in the instant case also there are two documents of two schools showing age of accused/applicant as 22.06.1957 and both these documents have been signed by his father, were in existence ante litem motem. Hence, there could be no ground to doubt genuiness of these documents and the High Court committed a serious error of law in brushing aside these important documents."
24. Out of facts testified by Ms. Sangeeta, TGT, it stands crystallized that the date of birth of Muzaira was recorded in school record by school authorities in discharge of their official duties. Her date of birth was got recorded ante litem motem and has to be given credence. Consequently, photocopy of school leaving certificate, which is Ex.PW4/B, is relevant. A presumption lies in favour of school record maintained by St. Eknath Sarvodaya Kanya Vidyalaya, J&K Block, Dilshad Garden, Delhi. Relying contents of Ex.PW4/B, it is concluded that Muzaira was born on 18.03.93. Therefore, it is evident that Muzaira was 15 years, five months and 13 days old on the date of incident, when she went missing. Prosecution has been able to establish that Muzaira was under 18 years of age as on 01.09.08.
25. Moreover, as regards submission of ld. Defence counsel that ossification test was not conducted, it may be mentioned that ossification test is not a surer test. There can be variation of one year or two years on either side in the opinion regarding age based on ossification. The opinion of the radiologist should not be preferred to the direct evidence furnished by the Municipal Birth Register and the school admission register. The medical evidence as to the age cannot override the effect 17 of the cogent evidence on the point. This opinion as to the age by judging teeth, appearance, notice and union of epiphysis cannot stand against the Municipal Birth Record or that of Registrar, Death and Birth. They are an entry in public or other official book, register or record and are made by a public servant in the discharge of official duty.
26. Moreover, it is the case of accused himself that prosecutrix had not attained the age of majority, that is, 18 years at the time of incident, inasmuch as it was suggested to PW(4) Sangeeta that prosecutrix was above 16 years of age. Further more, no challenge was made to the testimony of prosecutrix that her date of birth was not 18.03.93 or that same was 18.03.090. Under these circumstances, keeping in view the fact that testimony of prosecutrix in regard to her date of birth finds corroboration from documentary evidence available on record, which goes unchallenged and unrebutted. It stands proved that prosecutrix was less than 18 years of age, when she went missing.
27. As regard authorities relied upon by the ld. Counsel for the accused is concerned, I have carefully gone through them. As regard Jinish Lal Sah Vs. State of Bihar (supra), it was a case, wherein prosecutrix in her statement gave her age as 14 years at the time of incident, while doctor, who examined her opined that her date appeared to be 17 years. Statement of her own father showed that she was 19 years of age, at the time of incident. Under these circumstances, it was held by the hon'ble Apex Court that it was not safe to come to the conclusion that prosecutrix was less than 18 years of age, at the time of incident. Similarly, in Devananad Vs. State (supra) a school leaving certificate was being relied upon. However, it had come on record that it was not proved that at the relevant time, she was student in a school. Under these circumstances, 18 it was observed that school leaving certificate cannot be relied upon. Moreover, ossification test was also got done, which certified her age between 14 ½ to 16 ¼ years with two years of variation. Under these circumstances, it was observed that prosecutrix had failed to prove that she was below 16 years of age. Ashok Batra & Others Vs. State (supra) was again a case, where two versions regarding age of prosecutrix came on record. Therefore, it was observed that accused can claim to choose one which shows the age of prosecutrix above 16 years. Dewan Singh Vs. State (supra) was again a case, which was based on a radiologist report regarding age of prosecutrix. Under these circumstances, all the authorities relied by ld. Counsel for the accused pertain to different facts and circumstances of the case and do not apply to the present facts and circumstances of the case, inasmuch as in the instant case there is a school leaving certificate, wherein date of prosecutrix has been clearly mentioned. As regard variation on her date of birth, recorded under section 164 Cr.P.C. or before the doctor is concerned, satisfactory explanation has come on record to this effect.
28. As regard statement of prosecutrix Muzaira under section 164 Cr.P.C., made before ld. MM, is concerned, she gave satisfactory explanation for making such a favourable statement before the ld. Magistrate, by stating that said statement was made by her under duress of mother and sister of the accused. Accordingly, she had made her statement Ex.PW6/A before the ld. Magistrate, wherein she had exonerated the accused by stating that she had gone with the accused of her own will. Even if it is assumed for the sake of arguments that she had gone with the accused of her own will, then her consent is immaterial being a minor.
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29. Result of the aforesaid discussion makes it clear that all ingredients for offence punishable under section 363 IPC have been established by the prosecution to the hilt.
30. As regard offence under section 376 IPC is concerned, it has come in the testimony of prosecutrix that she was taken by accused and his sister-in-law in an autorickshaw and was kept in a house, where accused had coitus with her against her will. She was kept by the accused in that house for about one month, where he continuously sexually exploited her for a period of one month against her will.
31. Although, prosecutrix was medically examined by Dr. Namita, who prepared her MLC Ex.PW5/A, however, prosecution does not get much help from that MLC, inasmuch as the prosecutrix did not permit her local and genital examination done, but that is not fatal inasmuch as she had given the explanation that it was done by her at the instance of police. Moreover, the fact that she was taken by the accused is not even disputed by the accused in his statement, recorded under section 313 Cr.P.C., inasmuch as he had admitted that prosecutrix was known to him from before, as such he used to visit Rajesh who was residing as a tenant in the same premises, where prosecutrix was residing. He also admitted that he was working as a mobile repair mechanic and was residing at D-Block, New Seemapuri, Delhi, and that when prosecutrix went missing, she raised a suspicion on him and his friend Rajesh as he used to visit Rajesh at his tenanted premises. He had also admitted that Rajesh came to know about his love affairs with prosecutrix, and as such he called him and prosecutrix from where he got them arrested by local police. Having admitted the case of prosecution, there is no reason to disbelieve testimony of prosecutrix that during period of one month, 20 accused had coitus with her against her will. Even before the doctor, who prepared her MLC, she had stated that she had coitus with accused Naresh. Similarly, in her statement recorded under section 164 Cr.P.C by Sh. Mukesh Kumar, ld. MM, she had merely stated that nothing was done with her forcibly. Meaning thereby, at the most it can be taken that accused had coitus with the consent of prosecutrix. However, as discussed above, consent of prosecutrix in the instant case is immaterial as the prosecutrix was a minor girl as on the date of incident and therefore was incompetent to give consent. Therefore, offences punishable under section 376, 363 and 366 IPC stand proved against the accused.
32. Facts and circumstances, detailed above, also lead to conclusion that Muzaira was kidnapped by accused Naresh with intent to seduce her for illicit intercourse, and as such offence punishable under section 366 IPC is also established to the hilt.
33. It is correct that variation has come in the testimony of police officials on the one hand and public witnesses on the other, regarding the manner in which prosecutrix was apprehended, inasmuch as while according to Constable Brijesh Kumari, she had joined investigation of the case with ASI Krishan Pal and at the instance of secret informer, they went to New Seemapuri, where prosecutrix was overpowered by them, who was going towards D-202, New Seemapuri, Delhi. To the same effect is the testimony of ASI Krishan Pal. However, PW (7) Rajesh, who was residing as tenant under the complainant, has deposed that accused was his friend and used to visit his house. About 10-12 days prior to the Dusshera Festival of 2008, accused Naresh gave him a telephone call. Accused was in need of some money. Police had raided his house many 21 a times in search of the accused. Police had also detained his mother and sister-in-law. Therefore, when accused called him, he called accused to visit him on the day of Dusshera festival. Accused Naresh came along with prosecutrix to his house. He took them to the house of his acquaintance and then asked them to take tea and refreshment. He himself came downstairs and gave a telephone call to local police. Police arrived there. Accused Naresh and prosecutrix Muzaira were apprehended by the police. His testimony finds corroboration from testimony of Muzaira, who has also deposed that accused Naresh took her to Bhangi Colony, located in D-Block, New Seemapuri, Delhi. Rajesh left her there along with accused and left police station. Police came there and overpowered them. This variation in testimony of police officials as well as statement of prosecutrix and public witnesses can at the most be said to be an inconsistency regarding the manner in which prosecutrix and accused were arrested. However, this discrepancy is not fatal because it is not disputed by accused that prosecutrix was with him and recovered from his custody.
34. As regard submissions of ld. Counsel for the accused that there is delay in lodging FIR, it has come in the testimony of Sitara Begum that on 01.09.08 itself, she had gone to the police station. However, she was directed by them to search for the girl and therefore she kept on searching her in nearby vicinity and also in relations, but could not succeed. Therefore, she gave her complaint to the higher police officials regarding missing of her daughter on 08.10.08. She raised her suspicion on accused as well as Rajesh, who was residing as a tenant in her premises. Under these circumstances, it has been satisfactorily explained as to why there was a delay in lodging the FIR.
22
35. In view of foregoing discussions, it has been established by the prosecution that accused Naresh kidnapped prosecutrix Muzaira, kidnapped with intent to seduce her for illicit intercourse and then raped her. Accused Naresh had failed to raise even an iota of doubt in the case of prosecution. Consequently, evidence brought over the record is overwhelming to hold the accused accountable for offences under sections 363, 366 and 376 IPC. Accordingly, he is held guilty and convicted for the said offences.
Announced in the Open Court (Sunita Gupta) On this 11th day of August, 2009. District Judge-VII/NE-cum-ASJ, Karkardooma Courts, Delhi.
23 IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGE-VII/NE-CUM- ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI : S.C. No. 15/09
State Vs. Naresh S/o Chunni Lal, R/o H.No. D-202, New Seemapuri, Delhi.FIR No. 300/08
PS Seemapuri U/s 363/366/376 IPC.
ORDER ON THE POINT OF SENTENCE :-
Leniency in punishment has been claimed by Sh. S.A. Khan, Advocate, on behalf of convict Naresh. He presents that convict is the sole bread earner to support his family, including his old aged mother. It has also been submitted that it is the first offence committed by the convict, besides that convict is having clean antecedents. He claims that convict may be released on probation.
2. On the other hand, ld. Prosecutor submits that offence committed by the convict is of serious nature. He further presents that offence of rape is a graver offence than the offence of murder, inasmuch as it not only affects the body of prosecutrix, but also her soul. It is a fit case, where convict is liable to be punished with maximum sentence.
3. On 01.09.08, Madhvi, sister of the convict Naresh, came to the house of prosecutrix Muzaira (name changed). On that day, she (prosecutrix) was down with fever. She had gone along with Madhvi to take medicines.
When they were returning home, then her sister Santosh met them. Santosh took her to the house of Madhvi, located in D-Block, New Seemapuri, Delhi. Madhvi gave a telephone call to the convict Naresh and called him at her residence. He came there in one hour. Naresh and his sisters summoned pepsi through some boy. They all consumed pepsi. She felt uneasy on consumption of pepsi. Accused and his sisters took 24 her somewhere in an auto-rickshaw. She was kept in a house. He had coitus with her, against her will. She was kept by the convict in that house for about one month. He continued sexually exploiting her for that period of one month, against her will. During that period, she came to know that she was staying at the house of friend of convict, which was located in Buradi. One day, she was weeping. Convict gave a telephone call to his friend Rajesh. Rajesh reached there. He told her that he would take her to meet her mother. convict Naresh and his friend Rajesh took her to Bhangi Colony, located at D-Block, New Seemapuri, Delhi. Rajesth left her there, along with convict and got the convict arrested in the case.
4. As regards the submission of ld. Counsel for the convict that there are special reasons which warrant imposition of lesser sentence, same is devoid of merit. In Kamal Kishore etc. Vs. State of Himachal Pradesh 2000 IV AD(SC) 470, it was observed as under.
" As parliament has disfavoured the sentence to plummet below the minimum limit prescribed parliament used the expression " Shall not be less than" which is peremptory in tone. The court has, normally no discretion even to award a sentence less than the said minimum. Nonetheless parliament was not oblivious of certain vary exceptional situations and hence to meet such extremely rare contingencies it made a departure from the strict rule by conferring a discretion on the court subject to two conditions. One is that there should be" adequate and special reasons" and the other is that such reasons should be mentioned in the judgement. The expression "a dequate and special reasons"
indicate that it is not enough to have special reasons, nor adequate reasons disjunctively. There should be a conjunction of both for enabling 25 the court to invoke the discretion. Reasons which are general or common in many cases cannot be regarded as special reasons."
5. There is force in the submissions of ld. Addl.PP for the state that the offence of rape not only affects body of the prosecutrix but her soul also. In Om Parkash vs. State of U.P. 2006 9 SCC 787 it was observed by Hon'ble Supreme Court as under.
" We must remember 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."
6. In view of the foregoing discussion, the reasons assigned by ld.
Counsel for the convict for taking a liberal view are general and the same cannot be recorded as special reasons and therefore he is not entitled for a lesser punishment as prayed.
7. Ld. Addl. PP for the State however, has prayed for imposition of the maximum punishment. However, considering the facts and circumstances detailed above, coupled mitigating factors surrounding the convict, it is hereby ordered that convict Naresh shall undergo RI for three years and to pay fine of Rs.1,000/- for offence punishable under section 363 IPC. In default of payment of fine, he would further undergo RI six months. He shall also undergo RI for five years and to pay a fine of Rs.2,000/- for offence punishable under section 366 IPC. In default of payment of fine, he would further undergo RI for one year. He is further sentenced to undergo RI for seven years and to pay a fine of Rs.3,000/-
26 for offence punishable under section 376 IPC. In default of payment of fine, he would further undergo RI for 18 months.
8. Substantive sentences awarded to the convict shall run concurrently.
Fine, if recovered, be paid to prosecutrix Muzaira as token of compensation. Convict shall also get benefit of period already undergone in detention during investigation and trial of the case. A copy of judgement and order on sentence be supplied to the convict free of cost.
Announced in the Open Court (Sunita Gupta) On this 17th day of August, 2009. District Judge-VII/NE-cum-ASJ, Karkardooma Courts, Delhi.