Delhi District Court
Fir No. 151/07, P.S Seelam Pur U/Sec. ... vs Badshahd on 10 July, 2009
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FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD
IN THE COURT OF SH. B. S. CHUMBAK, ADDITIONAL SESSIONS
JUDGE:3 NE DISTRICT: KKD DELHI.
Case ID Number 02402R0399932007
Session Case No. 50/08
Assigned to Sessions 05/07/07
Arguments heard on 06/07/09
Date of order 10/07/09
FIR NO. 151/07
Police Station Seelam Pur
Under Section 363/366/376 IPC
IN THE MATTER OF:
STATE
VERSUS.
Badshah s/o Iqbal
r/o H.No. B-15, Gali No.1
Shashtri Park, Delhi.
PRESENT: Ms. Neelam Narang Ld. Addl. PP for State.
Sh. Ashok Kumar Advocate on behalf of accused.
JUDGMENT
1. On 27/3/07 a case u/sec. 363/365/378/506 IPC was registered at police station Seelam Pur vide FiR no. 151/07 on the basis of the compplaint filed by Ms. Jakia d/o Mohd. Nafees r/o E-13, Jhuggi no.49, J 1 2 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD Block, Seelam Pur Delhi against Bhadshah s/o Iqbal r/o B Block, H.No. B-15, Gali No.1, Shashtri Park, Delhi.
2. Brief facts arising out of this case are that on 27/3/07 Jakia d/o Mohd. Nafees along with her parents went to the police station Seelam Pur and got her statement recorded which is as follows:
"On 24/3/07 at 3 P.M she was going to the house of her Mausi Bilkis at Shahstri Park Delhi through ISBT road, in the meantime Badshah s/o Iqbal who used to come to her house and was well known to her, met her in TSR at ISBT road and induced her to sit in the TSR. He forcibly took her at Loni in TSR at the house of his friend namely Ikrar. He also committed sexual intercourse with her without her consent. On 25/3/07 Badshah allowed her to leave the house of his friend Ikrar and she of her own reached at her house. She narrated the incident to her parents but her parents suggested her not to disclose this incident but she could not compromise with her sufferings and went to the police station."
3. On the basis of statement of the prosecutrix, investigation was initiated, site plan was prepared, accused Badshah was 2 3 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD arrested, medical examination of prosecutrix Jakia and of the accused was got done, ossification test for determining the age of prosecutrix was also got done, statement u/sec. 161 Cr.P.C was recorded. All the exhibits which were handed over by the doctor to the IO were sent to FSL, co-accused Ikrar was also booked for offence punishable u/sec.368 IPC but due to non disclosure of the complete address, he could not be arrested. Prosecutrix failed to trace the house of Ikrar, therefore, neither the site plan of the place of occurrence/rape nor co-accused Ikrar was arrested. Statement of witnesses were recorded and after completion of necessary investigation challan u/s 173 Cr.P.C was presented to the court of Ld. M.M.
4. Ld. M.M after taking cognizance under the aforesaid offences against the accused, supplied the copies to the accused as required u/s 207 IPC and committed the case to the court of Sessions and on allocation to this court for trial.
5. Arguments on the point of charge heard. After hearing arguments and on perusal of the material placed on record a prima facie case u/sec. 363/366/376 IPC is made out against the accused and a charge for the offence u/s 363/366/376 IPC was framed on 30.07.07 by the then Ld. ASJ against accused Badshah to which accused pleaded not guilty and claimed trial, therefore, case is fixed for prosecution evidence. 3 4
FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD
6. Ms. Jakia d/o Mohd. Nafees, prosecutrix appeared as PW1, Dr. Samta Radiologist GTB hospital (PW2), Idrish w/o Mohd. Nafish (mother of the prosecutrix) as PW3, Dr.Devender Kumar, CMO GTB Hospital,(PW.4), Const. Brij Mohan as (PW.5), MHC(M)Murari Lal (PW6), Const. Dharmender (PW.7), W/ASI Veena (PW8), H.C Jag Roshini (PW.9), Sh. Sanjeev Kumar, Ld.MM (PW.10), ASI Suresh Kumar (PW.11) and dr. Madhu Senior Resident GTB Hospital as (PW.12). The testimony of all the witness is as follows:
7. PW.1 deposed that on 24th day in the year 2007 at about 3 P.M she was going to the house of her mausi through ISBT road to Shashtri Park, one boy namely Badshah met her in the way and induced her & took her to Loni in TSR. He took her in a room of his friend Ikrar. Accused committed rape on her in the room of his friend. She could not cry due to fear and on the next day morning accused turned her out of the room of Ikrar. She went to STD booth and narrated the whole story to his father on telephone who reached there and took her to her house. She further stated that her father advised her not to disclose the incident to anyone due to prestige of their family. But when she did not stop weeping then her father took her to the police station on 27th day of 2007. Her statement Ex.PW. 1/A was recorded, police took her to the hospital and 4 5 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD was got medically examined. Her statement u/sec. 164 Cr.P.C was also recorded by Ld. MM. Statement was also taken out from the sealed envelope and shown to her to which she stated that statement is the same which was made by her before Ld. MM which is Ex.PW 1/B bears her signatures at point 'A'. She also stated that her Salwar was also sealed in the hospital and she also identified her Salwar Ex.P 1 belonging to her, which she was wearing at the time of commission of rape. She also identified the accused who was present in the court.
8. During her cross-examination she stated that accused met her at ISBT road before the approach of Shashtri Park Bus stand. She was on the left side which was leading to ISBT. She also stated that in her statement u/sec. 164 Cr.P.C she stated that accused Badshah met her near ISBT while standing there, TSR came on the road from ISBT side leading towards Seelam Pur . She also admitted that room of the friend of the accused where offence of rape was committed was situated in the residential are and the people were residing in the neighbourhood of the said house. Voluntarily she stated that she could not raise alarm as accused threatened her. She also admitted that accused Badshah used to visit her house and was fully acquainted with her parents before the incident. She also stated that there was no Charpai, Thakhat or bed in the 5 6 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD room and she slept on the floor and accused committed rape on her only once while laying on the floor. She tried to resist the accused but she had not received any injury in that process and after commission of the offence, they both slept in the same room. She woke up at about 9 or 9.30 A.M in the next morning and at that time accused was also present in the room. Rest of her testimony is reiterated by her as submitted during the examination in chief.
9. PW2 deposed that on 11/4/07 she examined X-ray plate of Kumri Jakia to determine her age. On examination she opined her age between 16-17 years. Her opinion/report to this effect is Ex.PW 2/A bears her signatures at point 'A'
10. PW3 mother of the prosecutrix deposed that about six months ago(from 20/9/07) on 24th day of the month her daughter Jakia was going to the house of her maternal aunt at about 3 P.M. Neither she reached to the house of her maternal aunt nor she returned to her house and could not be searched despite repeated efforts. On next day she same of her own come to her home at about 4 P.M and narrated whole story to her. She also identified the accused Badshah present in the court. She narrated the whole story as already disclosed in her statement. On the basis of narration of her daughter she took her to the police station and got 6 7 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD the case registered.
11. During her cross-examination she submitted that accused Badshah did not use to come to their house prior to the incident. Voluntarily stated he used to visit Mohalla. She also admitted that she had not lodged any missing report at police station. Rest of the testimony is reiterated as submitted by her during examination in chief.
12. PW.4 deposed that on 29/3/07 at about 10.30 P.M he examined the patient Badshah who was brought by Const. Dharmender. On his examination he prepared the MLC No. C-1299/07 Ex.PW 4/A in his own hand, bearing his signature at point 'A'. On local examination he opined as follows:
"No external injury seen, secondly sexual character well developed, bilateral testical are well developed and normal shape and size, penis is normal in shape and size, circumsized nor smegma no perineal injuries. It is further opined that there is nothing to suggest that patient is not capable of performing sexual intercourse. Semen and blood sample of the patient were also taken and handed over to Const. Dharmender. During his cross-examination 7 8 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD he stated that as per local examination he cannot predict easily and enactly that patient committed intercourse how many days before his examination."
13. PW5 is a formal witness. He collected the exhibits of this case from MHC(M) vide R/C No. 10/21 and deposited the same in the office of FSL Rohini. He handed over the receipt to MHC(M) on return. He also deposed that so long as the exhibits remained in his custody, same were not tampered with.
14. PW6 Murari Lal brought the register No.19(OSR) and deposed that on 27/3/07 ASI Veena deposited three exhibits of this case against entry No.3914 and the relevant entry is Ex.PW 6/A(OSR). He further deposed that on 29/3/07 Const. Dharmendra brought three exhibits from GTB Hospital and deposited the same in the Malkhana vide entry No.3924. The relevant entry is Ex.PW.6/B. On 25/4/07 he sent four exhibits and two samples seals through Ct. Brij Mohan to FSL Rohini vide RC N o. 10/21 and he made relevant endorsement against entry dt. 27/3/07 to this effect on the reverse of RC No.10/21, same is Ex.)PW 6/C bears his signatures at point 'A'. On 5/9/07 four pullandas exhibits with the report received FSL Rohini 8 9 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD through ACP Shahdara and so long as the exhibits remained in his possession same were not tampered with. During his cross-examination he reiterated his testimony as stated by him during examination in chief.
15. PW7 deposed that on 29/3/07 he joined the investigation of this case with the IO/ASI Veena and on that day accused Badshah was arrested from Shashtri Park in his presence vide arrest memo Ex.PW 7/A bears his signatures at point A. Personal search memo Ex.PW 7/B bears his signatures at point A. He further deposed that during interrogation, accused made disclosure statement Ex.PW 7/C in his presence, bearing his signatures at point A. He also took the accused Badshah to GTB hospital for his medical examination and after medical examination doctor handed over him the sealed pullanda which on return he handed over the same to the IO vide seizure memo Ex.PW 7/D bearing his signatures at point A. He further deposed that on 30/3/07 accused took the police officials to Shashtri Park and at his pointing out, pointing out memo Ex.PW 7/E was prepared. He also identified the accused correctly. During the cross-examination he deposed that site plan which is on record was not prepared in his presence and accused pointed out the place on the road on which vehicle comes from the side of ISBT and go towards Seelam Pur. He further deposed that on 30.3.07 he along with police 9 10 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD officials and accused went to Loni in TSR and accused shown many places but failed to point out the exact place of alleged offence. He also enquired about the address of the house where the offence of rape was committed. Rest of his testimony reiterated by him as submitted during his examination in chief.
16. PW8 deposed that on 27/3/07 he along with complainant and H.C Jag Roshni reached at Shashtri Park and prepared the rough site plan Ex.PW 8/A on the pointing out of complainant. She send H.C Jag Roshni along with the prosecutrix to the GTB Hospital for her medical examination. H.C Jag Roshni handed over the sealed pullanda containing Salwar of the prosecutrix, vaginal slides and sample seal to her and she prepared the seizure memo Ex.PW 8/B. On 27/3/07 she also moved an application Ex.PW 8/C for recording of the statement of prosecutrix u/sec. 164 Cr.P.C which was fixed for 29/3/07. Accused Badshah was arrested from the out side the court on the identification of prosecutrix. His arrest memo Ex.PW 7/A was prepared in the presence of Const. Dharmender. Statement of prosecutrix u/s 164 Cr.P.C was recorded on 29/3/07. She also send the accused Badshah with Const. Dharmender to GTB hospital for medical examination. After medical examination of the accused Const. Dharmender handed over two sealed 10 11 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD pullanda containing blood sample and semen sample of accused along with two sample seal to her for which she prepared the seizure memo Ex.PW 7/C. On 30/3/07 accused took her to to ISBT road and pointed out the place of kidnapping. Pointing out memo Ex.PW. 7/E was prepared. She further deposed that on 11/4/07 ossification test to ascertain the age of the prosecutrix was got conducted. All the pullandas were deposited in the malkhana. On 25/4/07 she sent the pullandas to FSL Rohini and the FSL report are Ex.PW.8/E and Ex.PW 8/F. She also deposed that statement of witnesses were recorded, collected the X-ray report which is Ex.PW 2/A, and after completion of necessary investigation, filed the challan to the ocurt of Ld. MM.
During the cross-examination she stated that parents of the complainant were also present when she reached at Shashtri Park, ISBT road. Place from where the prosecutrix was kidnapped by the accused in the site plan Ex.PW 8/A indicates the road on which vehicle comes from ISBT side and go towards Seelam Pur side. She further stated that on 30/3/07 she along with the accused and Const. Dharmender went to Loni in TSR. Prosecutrix as well as the accused both failed to point out the exact place where the rape was committed on the person of prosecutrix. Rest of her testimony is reiterated by her made during her examination in chief. 11 12
FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD
17. PW9 is again formal witness. She deposed that on 27/28-3-07 she was on duty at control room from 8 P.M to 8 A.M and ont hat day on the direction of ASI Veena/IO, she had taken the prosecutrix Jakia d/o Nafees to GTB hospital for medical examination. She also handed over the slide and one sample seal of hospital, MLC of prosecutrix to the IO. Seizure memo Ex.PW 8/B was prepared by the IO and the same bears her signatures at point A. During her cross-examination she stated that Jakia was not accompanied by her family members /mother when she took her to GTB hospital. Rest of her testimony reiterated by her as submitted during her examination in chief.
18. PW10 is Ld. MM who proved the factum of recording of statement of prosecutrix u/sec. 164 Cr.P.C and clearly stated that on 28/3/07 IO produced prosecutrix and moved an application Ex.PW 8/C for recording the statement of prosecutrix. He fixed the said application for 29/3/07 for the said purpose and on 29/3/07 after making himself satisfied with regard to the voluntariness of the prosecutrix to make statement, he recorded her statement already Ex.PW 1/B bears his signatures at point B. He also gave certificate to this effect Ex.Pw 10/A bears his signatures at point A.
19. PW11 is again a formal witness. He deposed that on 12 13 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD 27/3/07 he was posted as Duty Officer from 5 p.m to 1 a.m at police station seelam Pur and on that day at about 12.10 a.m prosecutrix reached there and got her statement recorded. On the basis of her statement he recorded the formal FIR No. 151/07, copy of which is Ex.PW 11/A(OSR). He also handed over the same to the IO/ ASI Veena.
20. PW12 deposed that she has been deputed by MS on behalf of Dr. Harsha who had prepared the MLC of Jakia in this case. Dr. Harsha left the hospital and her present whereabouts are not available in the record of the hospital. She had seen MLC No. C-1269/07 of prosecutrix Jakia d/o Nafees , 14 years female r/o jhuggi No. 499 Dharam Pur Usman Pur delhi, brought to the hospital by H/C Jag Roshni of P.S Shahdara, prepared by Dr. Harsha. Dr. Harsha examined her with the alleged history of "lured by a boy (known to her) namely Badshah s/o Iqbal to a place in Loni and was sexually assaulted by him on the evening of 24.3.07" . She had come to police station on 27.3.07 and had taken bath after rape but not changed her cloth. She also stated that on her examination there was no external injury, her hymen was torn, slides from vagina were prepared, slides and salwar were sealed and handed over to the police. Detailed MLC is Ex.PW 12/A bears the handwriting of Dr. Harsha and also bears her signatures at point A. She identified her 13 14 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD signatures as she had seen her writing and signing the documents during the course of her duties. She further stated that she had seen the FSL report and possibility of rape in this case cannot be ruled out.
21. Thereafter the prosecution evidence was closed and case was fixed for statement of accused u/sec. 313 Cr.P.C.
22. During the course of examination of accused u/sec. 313, he controverted all the allegations of alleged against him and stated that he was falsely implicated in this case. He further stated that he was having visiting terms at the parental home of prosecutrix and the parents of prosecutrix several times proposed to get him married with Jakia and when he refused to get married with Jakia, he was falsely implicated in this case. He did not desire to lead defence evidence, therefore defence evidence was closed and case was fixed for final arguments.
23. I have heard the arguments on behalf of Ld. Addl. PP for the State and Ld. Counsel for the accused. Ld. Addl. PP for state submitted that prosecutrix Jakia in her statement before the court specifically stated that on 24/3/09 at about 3 P.M when she was going to Shashtri Park at the house of maternal aunt through ISBT road, accused Badshah met her there and induced her to sit in TSR and took her to Loni to the house of his friend Ikrar and committed rape on her. Her statement 14 15 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD to this effect is sufficient to convict the accused for the offence as alleged against the accused. Statement of the prosecutrix u/sec. 164 Cr.P.C which is Ex.PW 1/B, was also recorded wherein she stated same facts which has been stated before this court.
24. Ld. Addl. PP for the state placed reliance on the provision of section 114 A Indian Evidence Act wherein it has been held as under:
"In a prosecution for rape under clause (a), or Clause (b), or Clause (c ), or Clause (d) or Clause (e) or Clause (g) of sub section (2) of section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent and the women alleged to have been raped and she states in her evidence before the court, she did not consent, court shall presume that she did consent."
25. The testimony of PW1 is further corroborated by PW3 (mother of the prosecutrix). The factum of possibility of commission of rape is also proved by PW12 Dr. Madhu. On perusal of MLC Ex.PW 12/A it is mentioned hymen of prosecutrix was found torn. The salwar worn by the prosecutrix was also taken into possession. The stains of human semen 15 16 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD were detected on the Salwar worn by the prosecutrix vide report of FSL Ex.PW 8/E and F. The factum of age of prosecutrix is also proved vide X- ray report Ex.PW 2/A wherein doctor opined the age of the prosecutrix as 16-17 years.
26. Ld. Addl.PP further submitted that since prosecutrix was minor and she has taken away by the accused without consent of her parents/guardian in such event ingredients of section 363 IPC is proved. Since the prosecutrix was minor and she was forced and taken to the house at Loni, committed sexual intercourse without her consent in such event, ingredients of section 366 IPC is also proved against the accused.
27. The testimony of prosecutrix and of her mother(PW3) further corroborated with all other prosecution witnesses including police officials. In such circumstances, prosecution has succeeded in proving its case against the accused beyond reasonable doubt and hence request for conviction of accused for the offence as allege against him.
28. Ld. Addl. PP also placed a reliance of decided case cited as "KARAN SINGH VS STATE 2009 III AD(Cr.) DHC 219" wherein it is observed as under:
"The plea that no marks of injuries were found either on the person of the accused or the 16 17 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix.
Though the report of the gynecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convicing and trustworthy has to be accepted."
29.It is further observed as under:
"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed consideration 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 17 18 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts 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. Seeking corroboration of her statement before relying upon the same, as a rule in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base 18 19 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable."
30. On the other hand ld. Defence counsel for accused submitted that before convicting the accused under any penal law it is the duty of the prosecution to prove its case beyond reasonable doubt. In the present case, not even an iota of corroborative incriminating evidence is placed on record. In support of his contentions he submitted that there are material contradictions in the testimony of prosecutrix and the police witnesses.
a) On perusal of the site plan which is prepared at the instance of prosecutrix Ex.PW 8/A, the place of commission of offence of kidnapping is shown at point 'A' i.e on the Seelam Pur side and the prosecutrix in her statement stated that accused forced her to sit in a TSR while going towards ISBT near Shashtri Park which is contrary to the testimony of prosecutrix on the basis of her instance site plan was prepared.
b) It is the case of the prosecution that prosecutrix was taken to Loni in TSR from the place of kidnapping i.e at the distance of about 7-8 KM and the prosecutrix in the 19 20 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD way neither stated it to the driver of the TSR nor raised any alarm in the way that she has been forcibly taken away by the accused without her consent.
c) Prosecutrix stated that she was taken to Loni in a house of Ikrar a friend of accused but she failed to locate the place of commission of offence of rape despite the fact that she was taken at the place of offence by the police, raises a serious doubt upon the credibility of testimony of prosecutrix.
d) Neither Ikrar nor his house was traced despite the efforts by the police official, in such circumstances it cannot be said that offence of rape was committed at Loni in the house of Ikrar. It is admitted by the prosecutrix during her cross-examination that accused was having visiting terms and her parents were well acquainted to these facts on the other hand PW3 mother of the prosecutrix during her cross-examination stated that accused did not use to come to their house and she was not acquainted with this fact.
e) Prosecutrix in her statement stated that she narrated the incident to her father and father of the prosecutrix was not examined or even made a witness in the present case which raises a doubt in the 20 21 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD investigation conducted by the IO and his non examination is fatal to the prosecution case.
f) Parents of the prosecutrix desires to got married the prosecutrix with the accused and when accused refused to marry with her, he was falsely implicated in this case.
g) On perusal of the evidence adduced by the prosecution and also on perusal of the record that sexual intercourse was committed by the accused in such event and in view of the evidence ingredients of consent of the prosecutrix is proved. Age of the prosecutrix opined as 16-17 years and as per definition of rape as given u/sec. 375 IPC, sexual intercourse with a woman having 16 years of age with her consent is not an offence. No proof of age except the opinion of doctor on the basis of ossification test is placed on record and there are catena of judgment by the Hon'ble Supreme Court of India that two years relaxation is to be given in favour of the accused in cases of opinion given by the doctor on the basis of ossification test. If the benefit of two years given in the age of the prosecutrix, then age of the prosecutrix would come to 18-19 years. Prosecutrix of her own accompanied the accused and if her age is taken as 18-19 years then no ingredients of section 363/366 IPC is made out against 21 22 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD the accused and reliance is placed on a decided case cited as "Shyam and another vs State of Maharashtra AIR 1995, CRL. L. J. 3974" wherein their Lordship held that:
"where the prosecutrix not putting up struggle or raising alarm while being taken away by accused and appearing to be willing party to go with the accused on her own- culpability of accused not established."
In a case reported as Diwan Singh vs The state 1998 (3) RCR (Criminal) wherein it was observed that:
" In a case where no satisfactory proof regarding the age is produced by the prosecution and case is totally based on the opinion given by the radiologist on the basis of ossification test, in such cases benefit of variation of two years given to the accused in the aforesaid case."
In another case "Jaya Mala vs Home Secretary Govt. of J&K AIR 1982 SC 1296" their lordship of Supreme Court have opined that there can be two years margin either way in radiological examination. In case cited as 'Harendra Narain Singh vs State of Bihar AIR 99 SUPREME COURT 1842' it is observed that:22 23
FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD "......the basic rule of criminal jurisprudence is that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to guilt of the accused and the other to his innocence, the court should adopt the latter view favourable to the accused....."
h) Prosecutrix during her cross-examination stated that in the room there was no Charpai / Thakhat or bed was available where the offence was committed and the offence was committed while laying on the floor and she also slept there. It is also admitted that no injury/ bruises were present on the buttock or back of the prosecutrix, in such circumstances the possibility of having commission of offence if rape is totally ruled out and places a reliance on a decided case cited as "Ajmer Singh and Ors. Vs State of Haryana 1989(1) RCR 160 ". The facts in that case were that the occurrence took place in the field where certain crops were standing, even bushes were there as is appeared from the photograph P3, if against this rough and hard surface is shown in Ex.P.3, act of commission of rape was done, it was resisted by Saroj Bala who is having good health being growing up woman, some kind of abrasion were bound to appear on the buttock or back as well as on arms as prosecution story is that both her arms were held to the ground by one of the accused 23 24 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD when other was in process of committing rape. In view of the aforesaid fact it is observed by his Lordship that :
" Absence of any injury on the person of Saroj further supported the defence version that in fact no occurrence took place as is alleged."
i) It is the case of the prosecution that prosecutrix of her own left his parental home for going to the house of her Mausi at Shashtri Park Delhi on 24/3/07. Neither she reached at the house of her maternal aunt nor to her house and this fact had come to the knowledge of her parents on 24/3/07 but neither they have lodged any report of missing nor they raised suspicion on any other person which clearly goes to the show that factum of leaving the house by the prosecutrix for the reasons was well known to them. Without lodging any FIR or information to the concerned police station, offence u/sec. 363 IPC is not attracted and places reliance on a decided cases cited as "SINDHU KRISHNA THAKUR VS STATE OF MAHARASHTRA (VI) 1993(2) Crime 384" wherein it is observed that:
"the offence of kidnapping u/sec. 363 IPC is committed not against the person kidnapped but against the person who had her custody as her lawful guardian. In the absence of such complaint, on 24 25 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD behalf of the guardian, became fatal and conviction in such case bad in law."
31. In view of the evidence adduced by the prosecution and after considering the observations given by the Lordship in the aforesaid cases, it is proved that prosecution has failed to establish its case beyond any reasonable doubt, as alleged against the accused and request for acquittal of the accused.
32. In view of the oral contentions of both the parties I have carefully perused the evidence adduced by the prosecution and the observations given by their Lordship on the aforesaid decided cases wherein it transpires that entire conduct and behaviour of the prosecutrix during the relevant period clearly revealed that she had known to the accused for a long time and of her own with the intention to accompany the accused left her house and waited for the accused at the place shown at point 'A' of the site plan Ex.PW 8/A. Had she intended to go to the house of the maternal aunt at Shashtri Park then she should not have waited at point 'A' i.e on the opposite side of the Shashtri Park. Therefore she appears to be a consenting party. Prosecutrix specifically stated that she was kept in a room at Loni. She remained there through out the night and woke up at about 9.30 A.M in the next morning. Accused was also 25 26 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD allegedly present there, it was thickly populated are and during the whole period she has not raised any objection and also not shown her willingness to go to her house despite of the fact that her house was at a distance of 4- 5 km from there.
33. In view of her conduct it has become abundantly clear that it was clearly a case where prosecutrix was consenting party.
34. The question of age of the prosecutrix is extremely important in this case. No proof of age except the ossification test and the opinion given by the doctor on the basis of this test is placed on record, wherein the age of the prosecutrix is opined as 16-17 years and in the absence of any proof of age the benefit of two years is to be given to the accused and accordingly age of the prosecutrix would be taken as 18-19 years. In view of the statement of the prosecutrix and her mother (PW3) coupled with the fact that father of the prosecutrix has not been examined despite of the fact that prosecutrix narrated the story to her father at first instance coupled with the number of circumstances discussed above, which leads to the emphasis and conclusion that consent of the prosecutrix was writ large in this case.
35. In view of the aforesaid discussion and also having been taken into consideration the facts and circumstances of this case I am 26 27 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD of the considered view that prosecutrix was a consenting party, not resistance made over by her, medical report showed that there was hymen torn and no sign of external or internal fresh injury, no satisfactory proof regarding age of prosecutrix except report of radiologist, and the prosecutrix did not tell even to anybody during the said period , I am of the considered view that no ingredients for the offence punishable u/sec. 376/363/366 IPC is proved against the accused. I accordingly hereby acquit the accused for the said offences. His bail bond cancelled. Surety be discharged. File be consigned to the Record Room.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court on 10th Day of July 2009 27 28 FIR NO. 151/07, P.S SEELAM PUR U/SEC. 363/366/376 IPC ST. VS BADSHAHD 10.07.09 Present: Ms. Neelam Narang Ld. Addl. PP for State.
Accused present on bail.
Sh. Ashok Kumar Advocate on behalf of accused.
Vide separate judgment of even date, the accused is acquitted for the offence u/s 308 IPC. Their bail bond cancelled. Surety be discharged. File be consigned to the record room.
(B.S. CHUMBAK) ASJ-3 NE DISTRICT DELHI: 10.07.09 28